President Obama and Justice Scalia, United on Broadband as a Utility

In National Cable & Telecommunications Association v. Brand X Internet Services (No. 04-277), the Supreme Court ruled 6-3 that the Federal Communications Commission correctly decided that the changed market conditions under which the Internet was developing warranted different treatment of broadband. But attached to the Supreme Court opinion is a strong dissent written by Justice Antonin Scalia, one that puts him on the same side with President Barack 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.