Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs.
Supreme Court of the United States
March 29, 2005, Argued ; June 27, 2005, Decided
[*973] [**2695] Justice Thomas delivered the opinion of the Court.
LEdHN[1A] [1A] HN1 Title II of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq., subjects all providers of "telecommunications servic[e]" to mandatory common-carrier regulation, § 153(44). In the order under review, the [*974] Federal Communications Commission concluded that cable companies that sell broadband Internet service do not provide "telecommunications servic[e]" as the Communications Act defines that term, and hence [****15] are exempt from mandatory common-carrier regulation under Title II. We must decide whether that conclusion is a lawful construction of the Communications Act under Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984), and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. We hold that it is.
The traditional means by which consumers in the United States access the network of interconnected computers that make up the Internet is through "dial-up" connections provided over local telephone facilities. See 345 F.3d 1120, 1123-1124 (CA9 2003) (cases below); In re Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, 17 FCC Rcd. 4798, 4802-4803, P9 (2002) (hereinafter Declaratory Ruling). Using these connections, consumers access the Internet by making calls with computer modems through the telephone wires owned by local phone companies. See Verizon Communications Inc. v. FCC, 535 U.S. 467, 489-490, 152 L. Ed. 2d 701, 122 S. Ct. 1646 (2002) (describing the physical structure [***834] of a local telephone exchange). Internet service providers (ISPs), in turn, link [****16] those calls to the Internet network, [**2696] not only by providing a physical connection, but also by offering consumers the ability to translate raw Internet data into information they may both view on their personal computers and transmit to other computers connected to the Internet. See In re Federal-State Joint Board on Universal Service, 13 FCC Rcd. 11501, 11531, P63 (1998) (hereinafter Universal Service Report or Report); P. Huber, M. Kellogg, & J. Thorne, Federal Telecommunications Law 988 (2d ed. 1999) (hereinafter Huber); 345 F.3d at 1123-1124. Technological limitations of local telephone wires, however, retard the speed at which data from the Internet may be transmitted [*975] through end users' dial-up connections. Dial-up connections are therefore known as "narrowband," or slower speed, connections.
"Broadband" Internet service, by contrast, transmits data at much higher speeds. There are two principal kinds of broadband Internet service: cable modem service and Digital Subscriber Line (DSL) service. Cable modem service transmits data between the Internet and users' computers via the network of television cable lines owned by cable companies. See id., at 1124. [****17] DSL service provides high-speed access using the local telephone wires owned by local telephone companies. See WorldCom, Inc. v. FCC, 246 F.3d 690, 692 (CADC 2001) (describing DSL technology). Cable companies and telephone companies can either provide Internet access directly to consumers, thus acting as ISPs themselves, or can lease their transmission facilities to independent ISPs that then use the facilities to provide consumers with Internet access. Other ways of transmitting high-speed Internet data into homes, including terrestrial- and satellite-based wireless networks, are also emerging. Declaratory Ruling 4802, P6. Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.
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545 U.S. 967 *; 125 S. Ct. 2688 **; 162 L. Ed. 2d 820 ***; 2005 U.S. LEXIS 5018 ****; 32 A.L.R. Fed. 2d 651; 18 Fla. L. Weekly Fed. S 482; 36 Comm. Reg. (P & F) 173
NATIONAL CABLE & TELECOMMUNICATIONS ASSOCIATION, et al., Petitioners v. BRAND X INTERNET SERVICES, et al. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES, Petitioners v. BRAND X INTERNET SERVICES, et al.
Subsequent History: [****1] On remand at Brand X Internet Servs. v. FCC, 435 F.3d 1053, 2006 U.S. App. LEXIS 1573 (9th Cir., Jan. 23, 2006)
Prior History: ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.
Brand X Internet Servs. v. FCC, 345 F.3d 1120, 2003 U.S. App. LEXIS 20306 (9th Cir., 2003)
Disposition: Reversed and remanded.
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