The Comcast ruling was based on Brand X --
http://www.law.corne...ml/04-277.ZS.html
You can read the whole thing, but here are the key points (as relates to the question of "is cable modem service telecommunications?").
In the Declaratory Ruling under review, the [Federal Communications] Commission classified broadband cable modem service as an "information service" but not a "telecommunications service" under the 1996 Act, so that it is not subject to mandatory Title II common-carrier regulation.
...
In particular, the [district] court held [in overturning the Commission's finding] that the Commission could not permissibly construe the Communications Act to exempt cable companies providing cable modem service from mandatory Title II regulation. Rather than analyzing the permissibility of that construction under the deferential framework of Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, however, the court grounded that holding in the stare decisis effect of its decision in AT&T Corp. v. Portland, 216 F.3d 871, which had held that cable modem service is a "telecommunications service."
...
Chevron requires a federal court to defer to an agencyÂs construction, even if it differs from what the court believes to be the best interpretation, if the particular statute is within the agencyÂs jurisdiction to administer, the statute is ambiguous on the point at issue, and the agencyÂs construction is reasonable.
The key point here is that the ruling in Brand X was
not whether cable modem service qualifies as "telecommunications service" or "information service", but whether the Circuit Court was allowed to overrule the finding of the FCC on an ambiguously worded statute.
So what
did the Circuit Court find?
Because Portland held only that the best reading of §153(46) was that cable modem service was "telecommunications service," not that this was the only permissible reading or that the Communications Act unambiguously required it, the Ninth Circuit erred in refusing to apply Chevron. Pp. 10Â14.
So the Ninth Circuit agreed with me, that cable modem is "telecommunications service". The Supreme Court didn't rule on that issue, merely saying that the issue was ambiguous and therefore within the purview of the FCC to define.
As to whether the language was ambiguous -- ie: is it reasonable to conclude that cable modem is
not "telecommunications service":
Seen from the consumer's point of view, the Commission concluded, the cable wire is used to access the World Wide Web, newsgroups, etc., rather than "transparently" to transmit and receive ordinary-language messages without computer processing or storage of the message.
...
It is common usage to describe what a company "offers" to a consumer as what the consumer perceives to be the integrated finished product, even to the exclusion of discrete components that compose the product.
...
As the Commission recognized, the service that Internet access providers offer the public is Internet access, not a transparent ability (from the end-userÂs perspective) to transmit information.
This view depends on defining "the consumer" as a single, monolithic block of users, none of whom understand the technology at issue. On this point I think the Supreme Court simply got it wrong, allowing the least technologically-aware segment of the population stand in as a proxy for the whole.
Finally:
The traditional reason for its Computer II common-carrier treatment of facilities-based carriers was that the telephone network was the primary, if not the exclusive, means through which information service providers could gain access to their customers. The Commission applied the same treatment to DSL service based on that history, rather than on an analysis of contemporaneous market conditions. The Commission's Declaratory Ruling, by contrast, concluded that changed market conditions warrant different treatment of cable modem service. Unlike at the time of the DSL order, substitute forms of Internet transmission exist today, including wireline, cable, terrestrial wireless, and satellite. The Commission therefore concluded that broadband services should exist in a minimal regulatory environment that promotes investment and innovation in a competitive market.
Part of the reasoning for the change has nothing to do with what the service is, and instead depends on whether there is a competitive marketplace, and what greater need is served. So as I said: A historical accident.
Note that this ruling
only applies to cable internet service. DSL is still regulated under the common carrier provisions.
So:
1. The Circuit Court
agreed with me that broadband internet service -- excuse me,
cable internet service -- is a "telecommunications service".
2. The Supreme Court said that whether that was true or not, the regulations were sufficiently ambiguous that the Circuit Court should have allowed the Commission's interpretation to stand.
2a. They found that the regulation was ambiguous by assuming that end-users were not well educated about the offerings.
3. The court allowed a different interpretation of DSL broadband vs. cable broadband based not on the offering and how it was perceived by the end-user, but on market conditions and issues of competition.
So the court
didn't say I'm wrong. And in fact, now that I've read the decisions behind this story, I realize your case is even weaker than I thought. Because the decision hinged on the fact that the FCC has jurisdiction to determine whether cable internet providers should be considered common carriers. So it is
entirely within the rights of the FCC to impose Net Neutrality. The existing case law supports their jurisdiction to do so.
Verizon says you're wrong