10
I confess I do not understand the majority’s view that the
section of Fox on changed circumstances, quoted above, is not
triggered so long as the agency’s current view of the
circumstances is sustainable. Maj. Op. 47. Whatever the
soundness of such a view, it seems inapplicable where, as
here, the agency explicitly invokes changed circumstances:
“Changed factual circumstances cause us to revise our earlier
classification of broadband Internet access service.” Order
¶ 330.
(c) New reasoning. Perhaps recognizing the frailty of its
claims of changed facts, the Commission tries to cover its
bases by switching to the alternative approach set forth in Fox,
a straightforward disavowal of its prior interpretation of the
1996 Act and related policy views. See, e.g., Order ¶ 360
n.993.
The Commission justifies its reclassification almost
entirely in terms of arguments that provision of such services
as DNS and caching, when provided by a broadband provider,
do not turn the overall service into an “information service.”
Rather, those functions in its view fit within § 153(24)’s
exception for telecommunications systems management.
Order ¶ 365-81. Thus, the Commission set for itself a highly
technical task of classification, concluding that broadband
internet access could fit within the literal terms of the
pertinent statutory sections. And it accomplished the task.
That it could do so is hardly surprising in view of the broad
leeway provided by Brand X, which gave it authority to
reverse the policy judgment it had made in the decision there
under review, the Declaratory Ruling.
But in doing so the Commission performed Hamlet
without the Prince—a finding of market power or at least a
consideration of competitive conditions. The Declaratory
Ruling sustained in Brand X invoked serious economic
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