In Brand X , the Supreme Court upheld a Bush-era FCC decision that classified cable broadband as an information service instead of a telecommunications service, which meant that cable internet providers would not be regulated as common carriers under Title II of the Communications Act.
But the Supreme Court ruling in Brand X did not lock the FCC into classifying cable as an information service forever. Instead, Brand X allowed the FCC to classify Internet service as either an information service or telecommunications as long as it provided a reasonable justification. This allowed the FCC to subsequently change its classification decision multiple times.
Under US communications law, telecommunications is defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received. ” It’s up to the FCC to decide whether that definition accurately describes broadband, and Republican and Democratic administrations have come to opposite conclusions.
Brand X tied judges’ hands to such an extent that Circuit Judge Patricia Millett upheld FCC Chairman Ajit Pai’s net neutrality repeal (despite calling
) his claim that broadband is not telecommunications “unhinged from the realities of modern broadband service.”
despite Thomas’ change of heart, Brand X has not been reversed. What happened this week is that the Supreme Court (decided not to hear a (challenge of an appeals court decision in Baldwin v. United States In Baldwin , the US Court of Appeals for the 9th Circuit cited Brand X
when it deferred to an Internal Revenue Service interpretation of US law.
Thomas (offered the lone dissent) Monday, admitting his
– year-old mistake in Brand X right up front.
“This petition asks us to reconsider Brand X , “Thomas wrote. He continued:
Although I authored Brand X , “it is never too late to ‘surrende [r] former views to a better considered position.’ “ Brand X appears to be inconsistent with the Constitution, the Administrative Procedure Act (APA), and traditional tools of statutory interpretation. Because I would revisit Brand X , I respectfully dissent from the denial of certiorari. Page:
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