360 NATIONAL CABLE & TELECOMMUNICATIONS ASSN.,
INC. v. GULF POWER CO. Opinion of Thomas, J.
has the authority to regulate rates for attachments providing commingled cable television programming and high-speed Internet access. Prior to 1996, the Act was interpreted to grant the FCC such broad authority, see Texas Util. Elec. Co. v. FCC, 997 F. 2d 925, 929 (CADC 1993), and there is no clear indication in either the text of the 1996 amendments to the Act or the relevant legislative history that Congress intended to take this power away from the FCC.
Moreover, such an interpretation of the 1996 amendments to the Act would be in substantial tension with two congressional policies underlying the Telecommunications Act of 1996. First, Congress directed the FCC to "encourage the deployment" of high-speed Internet capability and, if necessary, to "take immediate action to accelerate deployment of such capability by removing barriers to infrastructure investment." See §§ 706(a), (b), and (c)(1), 110 Stat. 153, note following 47 U. S. C. § 157 (1994 ed., Supp. V). And second, Congress declared that "[i]t is the policy of the United States . . . to promote the continued development of the Internet and other interactive computer services and other interactive media." § 509, 47 U. S. C. § 230(b)(1). Needless to say, withdrawing the Act's rate protection for the attachments of those cable operators providing high-speed Internet access through their wires and instead subjecting their attachments to monopoly pricing would appear to be fundamentally inconsistent with encouraging the deployment of cable modem service and promoting the development of the Internet.
That the FCC may have reached a permissible conclusion below, however, does not excuse its failure to engage in reasoned decisionmaking and does not justify the Court's decision to allow the Commission's order to stand.12 If the FCC
12 Indeed, to the extent that the FCC holds open the possibility that high-speed Internet access using cable modem technology is a telecommunications service, its decision to regulate rates for the disputed attachments pursuant to § 224(d)'s rate methodology may result in utilities re-
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