WASHINGTON – The number of issues on which President Obama agrees with Justice Antonin Scalia probably could be counted on one hand. But one such agreement is a doozy – that broadband Internet service should be regulated as a utility.
President Obama on Monday urged the Federal Communications Commission to reverse a decision it made in 2002 that high-speed Internet service shouldn’t be treated as a “telecommunications service” – that is, a sort of utility-like telephone service – under Title II of the Communications Act of 1934.
At the time, the F.C.C. decided that the Internet had a better chance to thrive if broadband were classified as an “information service,” making it subject to a lighter regulatory touch under Title I of the Communications Act.
The commission reasoned that Internet service providers offered not just the transmission of digits, but rather an integrated service that also offered the capability for manipulating and storing information.
That judgment was affirmed by the United States Supreme Court in 2005, in National Cable & Telecommunications Association v. Brand X Internet Services, No. 04-277. The court ruled 6-3 in the case that the F.C.C. correctly decided that the changed market conditions under which the Internet was developing warranted different treatment of broadband.
Republicans have repeatedly seized on that ruling this week in warning the F.C.C. and President Obama against reclassifying broadband as a Title II service.
But attached to the Supreme Court opinion is a strong dissent written by Justice Scalia, one that puts him on the same side with President Obama.
The gist of the majority’s opinion was that broadband companies did not “offer” a telecommunications service by itself to consumers. Rather, the majority wrote, the service was integrated within more complex services and not offered on a stand-alone basis.
Justice Scalia disagreed, joined by two others, Justice Ruth Bader Ginsburg and Justice David H. Souter, who is now retired.
“It seems to me,” Justice Scalia wrote, “that the analytic problem pertains not really to the meaning of ‘offer,’ but to the identity of what is offered.”
“It would be odd to say that a car dealer is in the business of selling steel or carpets because the cars he sells include both steel frames and carpeting,” he wrote. “Nor does the water company sell hydrogen, nor the pet store water (though dogs and cats are largely water at the molecular level).”
What is sometimes true, however, is not always true, Justice Scalia said, and the basis of broadband Internet service is the transmission of digits from one point to another – in other words, a telecommunications service.
“The pet store may have a policy of selling puppies only with leashes,” he wrote, “but any customer will say that it does offer puppies – because a leashed puppy is still a puppy, even though it is not offered on a ‘stand-alone’ basis.”
Most people in the Internet world expect that whatever path the F.C.C. takes will end up back in court. If the dispute makes it to the Supreme Court, broadband might make for strange bedfellows.