Supreme Court Justice Clarence Thomas regrets Brand X ruling that FCC Chairman Pai used to kill net neutrality

Supreme Court Justice Clarence Thomas wants a do-over on his 2005 decision in a case that had a major impact on the power of federal agencies and regulation of the broadband industry. In National Cable & Telecommunications Association v. Brand X Internet Services, better known as Brand X, Justice Thomas wrote the 6-3 majority opinion that upheld a Federal Communications Commission decision to classify cable broadband as an information service. But in a dissent on a new case released Feb 24, Justice Thomas wrote that he got Brand X wrong. He regrets that Brand X gave federal agencies extensive power to interpret US law, a power generally reserved for judges. "Regrettably, Brand X has taken this Court to the precipice of administrative absolutism," Thomas wrote. "Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations."

In Brand X, the Supreme Court upheld a Bush-era FCC decision that classified cable broadband as an information service instead of a telecommunications service, which meant that cable Internet providers would not be regulated as common carriers under Title II of the Communications Act. But the Supreme Court ruling in Brand X didn't lock the FCC into classifying cable as an information service forever. Instead, Brand X allowed the FCC to classify Internet service as either an information service or telecommunications as long as it provided a reasonable justification. This allowed the FCC to subsequently change its classification decision multiple times. The Obama-era FCC in Feb 2015 decided that both home and mobile broadband services were telecommunications, and it regulated the industries under Title II in order to impose net neutrality rules. The Trump-era FCC reversed that decision in Dec 2017, deciding that broadband isn't telecommunications, and thus deregulated the industry.