356 NATIONAL CABLE & TELECOMMUNICATIONS ASSN.,
INC. v. GULF POWER CO. Opinion of Thomas, J.
to regulate rates for attachments providing commingled cable television programming and high-speed Internet access. Instead, the Court mistakenly concludes that the Commission has reached a decision on the issue. In the Court's view, the FCC's repeated statements that it has not determined whether high-speed Internet access using cable modem technology constitutes a telecommunications service only reflect the "[Commission's] willingness to reconsider its conclusion that Internet services are not telecommunications." Ante, at 338. The relevant issue here, however, is not whether Internet service is a telecommunications service. Rather, it is whether high-speed Internet access provided through cable wires constitutes a telecommunications service. The two questions are entirely distinct, see n. 4, supra, and, as shown above, the FCC has never answered the latter question and has indicated as much no less than six times in recent years.6 These cases therefore should be remanded to the FCC on this basis alone.
B
Second, even if the FCC had determined that high-speed Internet access provided through cable wires does not constitute a telecommunications service, these cases still would need to be remanded to the FCC. In order to endorse the FCC's primary argument that § 224(b)(1) provides the Commission with the authority to regulate rates for attachments not covered by either of the Act's specific rate methodologies, §§ 224(d) and 224(e), it seems necessary, as a matter of logic, for such attachments to exist. But as both the FCC and the
6 See Pet. for Cert. in No. 00-843, p. 15, n. 4; Brief for Petitioners in No. 00-843, at 30; Brief for FCC as Amicus Curiae in No. 99-35609 (CA9), at 19-26; In re Federal-State Joint Board on Universal Service, 13 FCC Rcd., at 11535, n. 140; In re Inquiry Concerning High-Speed Access to Internet Over Cable and Other Facilities, 15 FCC Rcd. 19287, 19294 (2000); In re Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations from MediaOne Group, Inc., to AT&T Corp., 15 FCC Rcd. 9816, 9872 (2000).
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