35
broadband Internet access services in such an oblique and
indirect manner, especially given the opportunity to do so
when it adopted the Telecommunications Act of 1996.” 30
FCC Rcd. at 5777 ¶ 386; see Whitman v. American Trucking
Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not
alter the fundamental details of a regulatory scheme in vague
terms or ancillary provisions—it does not, one might say, hide
elephants in mouseholes.”).
Finally, US Telecom argues that “[t]he statutory context
and history confirm the plain meaning of the statutory text.”
US Telecom Pet’rs’ Br. 33. According to US Telecom, while
the Computer II regime was in effect, the Commission
classified “gateway services allowing access to information
stored by third parties” as enhanced services, and Congress
incorporated that classification into the Communications Act
when it enacted the Telecommunications Act’s
information/telecommunications service dichotomy. Id. at
33–35. “Those ‘gateways,’” US Telecom insists, “involved
the same ‘functions and services associated with Internet
access.’” Id. at 34 (quoting In re Federal-State Joint Board on
Universal Service, 13 FCC Rcd. 11,501 ¶ 75 (1998)). This
argument suffers from a significant flaw: nothing in the
Telecommunications Act suggests that Congress intended to
freeze in place the Commission’s existing classifications of
various services.
Indeed, such a reading of the
Telecommunications Act would conflict with the Supreme
Court’s holding in Brand X that classification of broadband
“turns . . . on the factual particulars of how Internet
technology works and how it is provided, questions Chevron
leaves to the Commission to resolve in the first instance.”
545 U.S. at 991.
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