Net Neutrality’s Biggest Fan: Justice Scalia

One of the key arguments in the brand X case was that broadband providers didn’t just offer transmission, but also packaged information services such as e-mail, and thus were information providers. However you then have to ask what’s the essential difference between voicemail and email other than media format?

It’s an important discussion especially at this juncture; telephony has always been held to higher standards for stability and reliability than broadband. Now that broadband is consuming wired telephone service with VOIP and media conferencing services, it’s time to ask public safety questions like: shouldn’t broadband be at least as dependable at POTS was?

e.g. If the area power goes out and you have POTS, your phone will still work due to an infrastructure that includes batteries, UPS’s, and Generators at strategic nodes to keep phone system electric current available during power outages. If your cable goes out you have no such system to keep your phone in service, indeed if you want a battery for your cable modem in most cases you have to ask. If the area power goes out, your phone dies if it’s over a broadband pipe.

Before net neutrality became a left-wing cause célèbre, it had an unlikely champion: U.S. Supreme Court Justice Antonin Scalia.

In 2005, Scalia in a dissent wrote that the Federal Communications Commission should classify broadband providers as a more heavily regulated Title II telecommunications service—a position in sync with a statement from President Barack Obama on Monday as well as with calls from groups such as Free Press and Consumers Union.

“After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away,” Scalia wrote in 2005, “it remains perfectly clear that someone who sells cable-modem service is ‘offering’ telecommunications.”

Justice Ruth Bader Ginsburg and since-retired Justice David Souter joined his dissent in National Cable & Telecommunications Association v. Brand X Internet Services.

via National Journal