@Tom 13 - "Congress has explicitly decided ISP =/= common carrier."
Please read my more detailed post below but so far as I understand it, that is exactly the opposite - congress (through the Act) has not made an explicit ruling. That, when coupled with the Chevron doctrine applied by the courts, gives the FCC the power to make just such a decision (to classify ISPs as common carriers).
So, while you are correct to say that the FCC does not have the authority change the legislation, they do have the authority to interpret it and (as the supreme court put it) "fill the statutory gap":
The Commission has historically not subjected non-facilities-based information-service providers to common carrier regulation. That history suggests, in turn, that the Act does not unambiguously classify nonfacilities based ISPs as “offerors” of telecommunications. If the Act does not unambiguously classify such providers as “offering telecommunications,” it also does not unambiguously so classify facilities-based information-service providers such as cable companies; the relevant definitions do not distinguish the two types of carriers. The Act’s silence suggests, instead, that the Commission has the discretion to fill the statutory gap.
Reading through the Act, we see (p7):
- Telecommunications service = the offering of telecommunications, for a fee, to the public.
- Telecommunications carrier = provider of telecommunication services.
- Telecommunications carriers are subject to common carrier regulations.
Obviously, then, this all hinges on the definition of 'telecommunications', which is given as:
The term "telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
Quite simply, if cable broadband suppliers are ruled to be offering "telecommunications", then that will be subject to common carrier regulations.
It seems that the FCC approached the original decision (of how to classify cable broadband providers) from the desired end result, which was to promote growth and competition by not making the providers subject to common carrier regulations and, thus, they had to decide that such providers did not "[offer] telecommunications".
Personally, I think a fairly strong case can be made for classifying Internet traffic as 'telecommunications' but the fact, as noted by the Supreme Court, is that the Act does not do so explicitly and unambiguously and so that responsibility rests with the FCC.
The ruling by the Supreme Court in Brand X implies that if the FCC were to classify broadband providers as 'Telecommunications Carriers', that would also be a 'permissible' interpretation of the Act. This is seen most clearly in 1b, where they discuss the ruling made by the Court of Appeals for the Ninth Circuit, which found that classifiying a 'cable modem service' as a 'telecommunications service' was the best reading of the statute. This says that both readings are 'permissible' and thus, pass the test of Chevron.
To clarify, it is important to note that the Supreme Court did NOT rule that classifying ISPs as 'telecommunications carriers' was an un-permissible reading under the Chevron framework, but that, as more than one permissible reading exists, the FCC are free to choose whichever they deem suitable.
Granted, the nature of the case might make it hard to re-classify cable broadband providers, but it's not correct to imply that the FCC doesn't have the authority to do this.