Cite as: 534 U. S. 327 (2002)
Opinion of Thomas, J.
Commission, however, has since made its lack of a position on the issue unambiguous.
The FCC has not represented to this Court that high-speed Internet access provided through cable wires is not a telecommunications service. To the contrary, it has made its agnosticism on the topic quite clear. In its petition for
15 FCC Rcd. 385, 401 (1999). To date, however, the FCC has not classified the first step of this process in the cable context. Notably, when high-speed Internet access is provided over phone lines, in what is generally known as DSL service, the FCC has classified the first step of this process as involving the provision of a telecommunications service. See id., at 402-403.
The FCC's order below reflected the Commission's position. In its order, the Commission never specifically addressed whether transmission over cable wires from a customer's residence to an ISP's point of presence constitutes a telecommunications service. Instead, the FCC merely referred to its earlier decision that ISPs do not provide a telecommunications service under the 1996 Telecommunications Act. It then reasoned that "[u]nder this precedent, a cable television system providing Internet service over a commingled facility is not a telecommunications carrier subject to the revised rate mandated by Section 224(e) by virtue of providing Internet service." In re Implementation of Section 703(e) of the Telecommunications Act of 1996: Amendment of the Commission's Rules and Policies Governing Pole Attachments, 13 FCC Rcd. 6777, 6794-6795 (1998). To be sure, to the extent that a cable television system actually provides Internet service like any other ISP it is undoubtedly providing an "information service" under the Commission's precedents. The Commission's analysis, however, failed to address the crucial question: What type of service is provided when cable wires are used to transmit information between a customer's home and an ISP's point of presence?
It is for this reason perhaps that the Commission explained in its order below that it was reviewing the extent to which its "definition[s] of 'tele-communications' and 'telecommunications service' . . . [were] consistent with the . . . Act" and did "not intend, in this proceeding, to foreclose any aspect of the Commission's ongoing examination of those issues." Id., at 6795. Crucially, when the FCC released that "review," it expressly stated "no view . . . on the applicability of [its prior] analysis to cable operators providing Internet access service," and noted that "we have not yet established the regulatory classification of Internet services provided over cable television facilities." In re Federal-State Joint Board on Universal Service, 13 FCC Rcd. 11501, 11535, n. 140 (1998).
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