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Antonin Scalia. Photo: Diego M. Radzinschi

Eleven years ago this month, a dissenting Justice Antonin Scalia argued that the Federal Communications Commission should regulate cable broadband providers as telecommunications services, not information services. The U.S. Supreme Court disagreed.

The late justice’s vindication arrived Tuesday in a major net neutrality ruling.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in United States Telecom Association v. FCC, upheld the agency’s decision to reclassify broadband as a telecommunications service subject to anti-blocking and anti-discrimination rules.

Scalia, who died Feb. 13, was general counsel of the Nixon administration’s Office of Telecommunications Policy, where he played a significant role in formulating federal policy for the growth of cable television.

“He really, really knew this stuff,” said Andrew Schwartzman of Georgetown University Law Center’s Institute for Public Representation, who filed an amicus brief supporting the FCC in the net neutrality case. “They were decades ahead of others in understanding telecommunications.”

Scalia’s dissent, joined by justices David Souter and Ruth Bader Ginsburg, came in National Cable & Telecommunications Service v. Brand X Internet Services.

In that case, the 6-3 majority, led by Justice Clarence Thomas, held that the FCC’s conclusion that cable modem companies were “information service” providers, not “telecommunications service” providers, was a reasonable and lawful interpretation of federal law.

Thomas, however, wrote that the agency could change its position on classification as long as it had a reasonable justification—a requirement under so-called Chevron deference to an agency’s interpretation of its implementing statute.

But Scalia found the FCC’s position at the time “implausible” and “beyond its statutory authority.”

He wrote: “After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is ‘offering’ telecommunications.”

Two years ago, President Barack Obama urged the FCC to reclassify broadband as a telecommunications service.

Kevin Russell of Washington’s Goldstein & Russell, who filed an amicus brief on behalf of Cogent Communications Group Inc. supporting the FCC in the net neutrality case, said: “In Brand X, Justice Scalia thought that broadband access was unambiguously treated as common carriage by the Communications Act. The D.C. Circuit did not go that far in this case, but it did recognize—unsurprisingly—that it was at least reasonable for the FCC to agree with Justice Scalia that this is the best interpretation of the statute.”

The high court is likely to face a petition for review from the losing parties in Tuesday’s net neutrality decision.

But Schwartzman and Russell said the chances of review are remote. There’s no circuit split.

“The First Amendment issue is silly and trivial, and this is a garden-variety Chevron case,” Schwartzman said. “And with Scalia gone, there will be even less interest on the court.”

Russell described the D.C. Circuit’s decision as a “narrow opinion focusing on the specific factual record of this case and avoided making any big pronouncements of law that would affect other cases.”

The carriers, Russell said, “will no doubt argue that net neutrality is so important that the Supreme Court should resolve this case. But the opinion carefully explains why Congress left this important decision to the expertise of the commission.”

Read more: 

Net Neutrality’s Biggest Fan: Justice Scalia? 

D.C. Circuit Judge David Tatel Confronts Net Neutrality For a Third Time 

Ten Cases to Watch for This Summer From the D.C. Circuit 

Attorneys Debate European Draft Guidelines on Net Neutrality


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