Sometimes a judicial outcome can be summed up by the aphorism “hard cases make bad law.” At other times, perhaps, it is bad law that makes hard cases. Brand X Internet Services v. FCC is an example of an easy case making bad policy.

Here we’re talking about horizontal stare decisis. Simply put, the Court ruled that cable modem service is a form of telecommunications service to be consistent with its own ruling in a prior case. The previous case involved a suit against the city of Portland, Oregon, whereby the city had placed forced access conditions on the sale of a cable franchise. The court held that cable modem service had telecommunications service components. As such, the city of Portland could not regulate the cable modem services — only the FCC had the legal authority to do so.

So should a court remain consistent for consistency-sake, recognizing that there is a value to predictability in the law? Or should the court be more policy results-oriented? See my comments from last October at http://cei.org/gencon/016,03716.cfm