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cloudboy -> RE: Obama Urges F.C.C. to Adopt Rules to Protect Net Neutrality (11/15/2014 11:09:17 AM)
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Scalia and Obama lineup on this issue. NCTA v. Brand X
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Scalia's Dissent. Justice Antonin Scalia wrote a long and vigorous dissenting opinion that was joined, in part, by Justices David Souter and Ruth Ginsburg.
He wrote, "Actually, in these cases, it might be more accurate to say the Commission has attempted to establish a whole new regime of nonregulation, which will make for more or less free-market competition, depending upon whose experts are believed. The important fact, however, is that the Commission has chosen to achieve this through an implausible reading of the statute, and has thus exceeded the authority given it by Congress."
Scalia also mocked the FCC's "self-congratulatory paean to its deregulatory largesse".
He explained that "what the Commission hath given, the Commission may well take away -- unless it doesn’t. This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions. The main source of the Commission’s regulatory authority over common carriers is Title II, but the Commission has rendered that inapplicable in this instance by concluding that the definition of "telecommunications service" is ambiguous and does not (in its current view) apply to cable-modem service. It contemplates, however, altering that (unnecessary) outcome, not by changing the law (i.e., its construction of the Title II definitions), but by reserving the right to change the facts. Under its undefined and sparingly used "ancillary" powers, the Commission might conclude that it can order cable companies to "unbundle" the telecommunications component of cable-modem service."
"And presto," wrote Scalia, "Title II will then apply to them, because they will finally be "offering" telecommunications service! Of course, the Commission will still have the statutory power to forbear from regulating them ... Such Möbius-strip reasoning mocks the principle that the statute constrains the agency in any meaningful way." (Parentheses in original. Footnote omitted.)
Scalia concluded that "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. For that simple reason set forth in the statute, I would affirm the Court of Appeals."
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