For the sake of a rational and less regulatory forward-looking communications policy let's hope the Supreme Court grants certiorari in the Brand X case and once again reverses the Ninth Circuit--and not only because you can't reverse the nettlesome 9th often enough.
Let's be pretty clear here. As Ray points out immediately below, the 1996 Act's "information service" and "telecommunication" categories don't make much sense in today's IP world. You can read the two statutory definitions till your eyes glaze over, and it will not be clear whether "cable modem" service, or for that matter, the telcos' DSL service, fits in one category or the other. As I've said before, it takes a metaphysician to figure out how the outmoded statutory definitions, based as they are on techno-functional concepts that have no relevance to today's marketplace, should be interpreted.
Thus, the Solicitor General's very strong reliance on the Supreme Court's 1984 Chevron decision [Lexis subscription required]. There the Court held, quite appropriately, that where Congress enacts ambiguous laws, the courts must defer to reasonable interpretations of the statutory provision by the agencies charged with implementing the laws. The court declared: "Judges are not experts in the field, and are not part of either political branch of the Government...While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices--resolving the competing interests which Congress either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with administration of the statute in light of everyday realities."
In other words, the Court is saying that when Congress's delegation of authority in the Telecom Act is ambiguous, in our system of governance it is better for the metaphysicians at the FCC to be making policy than the ones wearing robes. So, in this case, I hope the Supreme Court grants cert and defers to the FCC's interpretation that cable modem service is an "information" service.
Now a PS--For those interested in constitutional and administrative law, note that Chevron was a case involving an EPA interpretation of a Clean Air Act provision. Hence, the Court's reference to an agency accountable to the Chief Executive, and deference to "the incumbent administration's views of wise policy to inform its judgments." The FCC is not considered to be part of the Executive Branch accountable to the president in the same way the EPA Administrator is, but rather it is a so-called "independent agency". Query: Should this make any difference for purposes of Chevron deference? Reactions welcome for further discussion--but in the meantime see my August 23 National Law Journal piece, "Consolidate FCC Power," advocating that a "slimmed- down organization should be moved into the executive branch, where the president will be political accountable for FCC policy-making activities."