isen.blog

A comment by Frank (not sure which Frank) [Updata: Frank Muto, Co-founder of the Washington Bureau for ISP Advocacy] on a previous post on the Brand X decision says,

Show me where in the [Supreme Court] opinion, they gave the FCC any authority above and beyond the scope of the Telco Act?

We can argue about whether, "above and beyond" is the best operative phrase, but the decision says that a lower court must defer to a federal agency's interpretation of law, "even if it differs from what the court believes to be the best interpretation," as long as the law leaves some, "room for agency discretion."

To me, this means that if the law says that, "One is a bun and two is a shoe," this non-best interpretation part of the Brand X Decision means that an agency can say that since it is possible to tie a bun to your foot with shoelaces, it can be a shoe.

The Telecom Act defines:

(41) INFORMATION SERVICE- The term `information service'
means the offering of a capability for generating, acquiring,
storing, transforming, processing, retrieving, utilizing, or
making available information via telecommunications, and
includes electronic publishing, but does not include any use of
any such capability for the management, control, or operation
of a telecommunications system or the management of a
telecommunications service.

(51) TELECOMMUNICATIONS SERVICE- The term
`telecommunications service' means the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.'.

To me, the best interpretation would have cable modem service fitting the definition of "Telecommunications Services," such a definition would take cognizance of the twin facts that (a) cable modems are dumb connections offered for a fee directly to the public, and (b) the capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information" is done in intelligent devices at the edge of the network that are connected by a dumb telecommunications service "regardless of facilities used."

Brand X allows the FCC to adopt a non-best interpretation of the law. This ipso facto lets them call cable model service what they want to call it because the law does have "room for agency discretion."

Myself, if there were clearly a best interpretation, as there is in this case, I would want to hold that the agency to that best interpretation. For years, the Supreme Court has been in the business of deciding the best interpretation of the law. Now, it seems, they're giving it up.

Is this going above and beyond the Telecom Act of 1996? Dunno. But I don't think it is best; it is not even very good.

Disclaimer: I am not a lawyer; I assume that legal documents like Supreme Court decisions have understandable meaning anyway.

Technorati Tags: BrandX, FCC, Scotus