350 NATIONAL CABLE & TELECOMMUNICATIONS ASSN.,
INC. v. GULF POWER CO. Opinion of Thomas, J.
ternet access constitutes a telecommunications service,2 then these attachments are used to provide telecommunications service and must be regulated pursuant to § 224(e)'s rate methodology.3
Only after determining whether either of the Act's mandatory rate methodologies applies to particular attachments and answering that question in the negative does the statute allow the FCC to examine whether it may define a "just and reasonable" rate for those attachments pursuant to § 224(b)(1). Had the FCC engaged in such reasoned decisionmaking below and concluded that it had the authority to regulate rates for attachments used to provide commingled cable television service and high-speed Internet access even though high-speed Internet access using cable modem technology constitutes neither cable service nor telecommunications service, then this Court would have been able to review the Commission's order in a logical manner. We first would have asked whether the Commission had permissibly classified the services provided by these attachments. And, if we answered that question in the affirmative, we would then (and only then) have asked whether the FCC has the authority under § 224(b)(1) to regulate rates for attachments where Congress has not provided an applicable rate methodology.
Instead, the FCC asks this Court to sustain its authority to regulate rates for attachments providing commingled cable television programming and high-speed Internet access, even though it has yet to articulate the specific statutory basis for its authority to regulate these attachments. Yet, as Justice Harlan noted some years ago: "Judicial review of [an agency's] orders will . . . function accurately and effica-2 See, e. g., AT&T Corp. v. Portland, 216 F. 3d 871, 878 (CA9 2000) (concluding that cable modem service is a telecommunications service).
3 Rates set pursuant to § 224(e)'s methodology are generally higher than those set pursuant to § 224(d)'s methodology. See Brief for Petitioners in No. 00-843, p. 24; Brief for Respondents Atlantic City Elec. Co. et al. 10, n. 2.
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