Antonin Scalia Totally Gets Net Neutrality

The Federal Communications Commission proposed new rules to regulate broadband Internet providers. Many supporters of an open web don’t like these rules. The agency’s suggested regulations, they say, will either sacrifice a key tenet of the Internet -- network neutrality, a storied and contested idea -- or prove ineffectual.

They say the agency must re-categorize broadband Internet providers, so that they become utilities -- common carriers. It’s obvious, obvious, they say, that the FCC categorizes broadband incorrectly in the first place.

Turns out a member of the nation’s highest ranking court made their case for them almost a decade ago. That judge’s name? Antonin Scalia, who wrote that the FCC’s interpretation of the law around “information services” was “implausible.” With its decision to regard cable broadband as an information service, the agency had “[established] a whole new regime of non-regulation, which will make for more or less free-market competition, depending upon whose experts are believed.” In ruling that broadband was an information service, the FCC “had exceeded the authority given it by Congress.”

Judge Scalia based his argument on an interesting analogy: “If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common “usage,” […] would prevent them from answering: ‘No, we do not offer delivery -- but if you order a pizza from us, we’ll bake it for you and then bring it to your house.’ The logical response to this would be something on the order of, ‘so, you do offer delivery.’ But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: ‘No, even though we bring the pizza to your house, we are not actually “offering” you delivery, because the delivery that we provide to our end users is “part and parcel” of our pizzeria-pizza-at-home service and is “integral to its other capabilities.”