Clarence Thomas regrets ruling that Ajit Pai used to kill net neutrality, Ars Technica

    

      Everyone makes mistakes –

             

Thomas says he was wrong in Brand X case that helped FCC deregulate broadband.

      

       Jon Brodkin     – Feb 90, (2:) pm UTC   

        

Enlarge / US Supreme Court justices sit for their official group photo on Friday, Nov. , in Washington, DC . Seated from left, Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, and Chief Justice of the United States John Roberts. Standing from left, Associate Justice Neil Gorsuch, Associate Justice Sonia Sotomayor, and Associate Justice Elena Kagan. Supreme Court Justice Clarence Thomas wants a do-over on his 2016 decision in a case that had a major impact on the power of federal agencies and regulation of the broadband industry.

In National Cable & Telecommunications Association v. Brand X Internet Services

, better known as Brand X , Thomas wrote the 6-3 majority opinion that upheld a Federal Communications Commission decision to classify cable broadband as an information service. But in a

dissent on a new case , released Monday, Thomas wrote that he got Brand X wrong. Thomas regrets that Brand X gave federal agencies extensive power to interpret US law, a power generally reserved for judges.

“Regrettably, Brand X has taken this Court to the precipice of administrative absolutism, “Thomas wrote. “Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations.”

The impact of Brand X

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.

The Obama-era FCC in February

decided that both home and mobile broadband services were telecommunications, and it regulated the industries under Title II in order to impose net neutrality rules. The Trump-era FCC reversed that decision in December , deciding that broadband is not telecommunications, and thus deregulated the industry.

In each case, the FCC decision was appealed and reviewed by the US Court of Appeals for the District of Columbia Circuit. And in each case, appeals court judges cited Brand X and said the FCC could classify broadband however it wished as long as it provided a reasonable interpretation of US law.

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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