352 NATIONAL CABLE & TELECOMMUNICATIONS ASSN.,
INC. v. GULF POWER CO. Opinion of Thomas, J.
was adequate. Proceeding from the premise that the Commission in fact has determined that high-speed Internet access using cable modem technology is not a telecommunications service, see ante, at 337, the Court finds that the Commission, after reaching this conclusion, was not required to determine whether the attachments here are used solely to provide cable service. Even if the FCC had concluded that these attachments are not used solely to provide cable service, the Court notes that the FCC indicated it would have used its power under § 224(b)(1) to apply § 224(d)'s rate methodology regardless. See ante, at 337-338. Under the Court's reasoning, this is therefore a case of six of one, a half dozen of another. Either the FCC must apply § 224(d)'s methodology to attachments providing commingled cable television programming and high-speed Internet access because such attachments are used solely to provide cable service, see § 224(d)(3) (1994 ed., Supp. V), or the FCC has exercised its power under § 224(b)(1) (1994 ed.) to regulate the rates for these attachments and has chosen to "apply the [§ 224(d)] rate as a 'just and reasonable' rate." 13 FCC Rcd., at 6796. The problem with this position is twofold.
A
First, the FCC has not conclusively determined that high-speed Internet access using cable modem technology is not a telecommunications service. Admittedly, the FCC's discussion of the topic in its order below was opaque.4 The
4 Residential high-speed Internet access typically requires two separate steps. The first is transmission from a customer's home to an Internet service provider's (ISP's) point of presence. This service is generally provided by a cable or phone company over wires attached to poles, ducts, conduits, and rights-of-way. The second is a service delivered by an ISP to provide the connection between its point of presence and the Internet. See Brief for United States Telecom Assn. et al. as Amici Curiae 6. The Commission has classified the second step of this process, the service provided by an ISP, as an "information service." See, e. g., In re Deployment of Wireline Services Offering Advanced Telecommunications Capability,
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