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regulations on coal-fired power plants very well might spur
investment in energy by making legacy coal-fired plants less
feasible to operate, thus encouraging investment in renewable
energy to replace them. But that tells us little about whether
the prior regulations on coal-fired plants and their alternatives,
adjusted in light of reasonably foreseeable change, had a
material impact on prior energy investments.
The Commission also argues that “the regulatory history
regarding the classification of broadband Internet access
service would not provide a reasonable basis for assuming that
the service would receive sustained treatment as an
information service in any event.” Order ¶ 360. In short, the
Commission says that reliance was not reasonable. The
statement misreads the history of the classification of
broadband. In March 2002, the Commission classified cable
broadband as an information service, see In the Matter of
Inquiry Concerning High-Speed Access to the Internet over
Cable and Other Facilities (the “Cable Modem Declaratory
Ruling”), 17 F.C.C. Rcd. 4798 (2002); soon after that Order
was affirmed by the Supreme Court in National Cable &
Telecommunications Ass’n v. Brand X Internet Service, 545
U.S. 967 (2005), the Commission reclassified the transmission
component of DSL service as an information service as well.
See Appropriate Framework for Broadband Access to the
Internet Over Wireline Facilities et al. (the “Wireline
Broadband Classification Order”), 20 F.C.C. Rcd. 14853
(2005). The Commission continued to hold that view until
2010, when in the 2010 Notice, Notice of Inquiry, Framework
for Broadband Internet Service, 25 F.C.C. Rcd. 7866 (2010),
it sought comment on reclassification (though rejecting it in
the ultimate 2010 Order). I’m puzzled at the Commission’s
implicit claim, Order ¶ 360, that judicial uncertainly—dating
back to the 9th Circuit’s 2000 decision in AT&T Corp. v. City
of Portland, 216 F.3d 871 (9th Cir. 2000), reading the statute
to compel classification as a telecommunications service—
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