Burrowowl

This week we learned that six out of nine Supreme Court Justices don’t understand the nature of the relationship between information services and telecommunications. Yesterday in a six-three decision, Associate Justice Thomas, writing for the Court, ruled that the FCC was within its statutory authority to rule that cable broadband providers are not required to share their facilities with other ISPs, even though telcos that provide a similar service (DSL) and are required to. Associate Justice Scalia wrote the dissent, with Ginsburg and Souter also dissenting:

It is indeed a wonderful new world
that the Court creates, one full of promise for administrative-law
professors in need of tenure articles and, of course, for litigators. I would adhere to what has been the rule in the past: When a court interprets a statute without Chevron deference
to agency views, its interpretation (whether or not asserted to rest
upon an unambiguous text) is the law. I might add that it is a great
mystery why any of this is relevant here. Whatever the stare decisis effect of AT&T Corp. v. Portland,

216 F. 3d 871 (CA9 2000), in the Ninth Circuit, it surely does not
govern this Court’s decision. And–despite the Court’s peculiar,
self-abnegating suggestion to the contrary, the Ninth Circuit would already be obliged to abandon Portland’s holding in the face of this Court’s
decision that the Commission’s construction of “telecommunications
service” is entitled to deference and is reasonable. It is a sadness
that the Court should go so far out of its way to make bad law.

The full text of the decision and dissent is available for you to read for yourself.

Just in case you thought this only affects cable access, Commissioner Abernathy’s comments on the ruling may dispel any illusions:

I am gratified that the Supreme Court has deferred to the Commission�s finding that cable
modem services are �information services.� As I stated when the ruling upheld today was
adopted, this classification accords the Commission the flexibility it needs to craft a minimal
regulatory environment that promotes investment and innovation in a competitive marketplace.
Now that the Court has resolved lingering uncertainty regarding the regulatory treatment of
cable-based Internet access services, I am hopeful that the Commission will act quickly to
establish a similarly forward-looking approach for competitive wireline xDSL services.