dissenting.
Regardless of how serious the problem an administrative agency seeks to address ... it may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000).
The Communications Assistance for Law Enforcement Act (“CALEA”) sets forth “assistance capability requirements,” compelling “telecommunications carriers” to build and sustain their equipment in a manner that allows law enforcement agents to execute surveillance orders. Importantly, for purposes of this case, the statute
• explicitly states that “telecommunications carrier[s]” do not include “persons or entities insofar as they are engaged in providing information services,” 47 U.S.C. § 1001(8)(C)(i) (2000),
• defines “information services” as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications,” id. § 1001(6)(A), and
• expressly states that the assistance capability requirements “do not apply to [ ] information services,” id. § 1002(b)(2)(A).
In determining that broadband Internet providers are subject to CALEA as “telecommunications carriers,” and not excluded pursuant to the “information services” exemption, the Commission apparently forgot to read the words of the statute. CALEA does not give the FCC unlimited authority to regulate every telecommunications service that might conceivably be used to assist law enforcement. Quite the contrary. Section 1002 is precise and limited in its scope. It expressly states that the statute’s assistance capability requirements “do not apply to [] information services.” Id. Broadband Internet is an “information service” — indeed, the Commission does not dispute this. Therefore, broadband Internet providers are exempt from the substantive provisions of CA-LEA.
The FCC apparently believes that law enforcement will be better served if broadband Internet providers are subject to CA-LEA’s assistance capability requirements. Although the agency may be correct, it is not congressionally authorized to imple*318ment this view. In fact, the “information services” exemption prohibits the FCC from subjecting broadband service providers to CALEA’s assistance capability requirements. If the FCC wants the additional authority that Congress withheld, it must lobby for a new statute. Until Congress decides that the “information services” exemption is ill-advised, the agency is bound to respect the legislature’s will and we are bound to enforce it. See Ry. Labor Executives’ Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C.Cir.1994) (en banc) (“Were the courts to presume a delegation of power absent an express withholding of such power, agencies would enjoy virtually limitless hegemony, a result plainly out of keeping with Chevron and quite likely with the Constitution as well.”).
What we see in this case is an agency attempting to squeeze authority from a statute that does not give it. The FCC’s interpretation completely nullifies the information services exception and manufactures broad new powers out of thin ah*.
The most troubling aspect of the FCC’s interpretation of CALEA is that it is directly at odds with the statutory language. The statute defines “information services” as the offering of various information capabilities via telecommunications. 47 U.S.C. § 1001(6)(A). See Appendix. The offering of one of the specified information capabilities “via telecommunications ” is integral to the definition of exempt services. Despite this clear language, the Commission’s Order states that “when a single service comprises an information service component and a telecommunications component, Congress intended CALEA to apply to the telecommunications component.” Communications Assistance for Law Enforcement and Broadband Services, First Report and Order and Notice of Proposed Rulemaking, 20 F.C.C.R. 14,989 ¶21 (2005) (“Order”). This is utter gobbledygook, and it certainly cannot be what Congress intended. Under the plain words of the statute, exempt information services are those specified services that include a telecommunications component. If, as the FCC would have it, the telecommunications component is excised, the statutorily defined exemption no longer exists. This makes no sense.
The net effect of the FCC’s interpretation is to vitiate the statutory exception altogether. If all information services that are carried out “via telecommunications” are subject to CALEA, then the “information services” exemption is an empty set. Under the plain terms of the statute, this cannot be.
In the face of this reality, the Commission offers an example of a service that, under its interpretation, allegedly falls within the information services exception — the “storage functions of [a broadband Internet access provider’s] e-mail service.” Order at ¶ 38. The example highlights the absurdity of the agency’s position. Once email storage functions are viewed apart from the telecommunications mechanism used to transmit email messages, there is no sense in which email services are offered “via telecommunications.” Thus defined, email storage services fall outside of the statutory exception and are thus potentially subject to CA-LEA’s requirements.
If the FCC had construed CALEA’s information services exception consistent with the parallel provision in the Communications Act — which is identical in all relevant respects, compare 47 U.S.C. § 1001(6) (2000) (CALEA) with id. § 153(20) (Communications Act} — -the agency would have given full effect to every provision of CALEA. And the FCC could have relied on the statute’s “substantial replacement” provision to apply CA-*319LEA to services that are not information services and that do not otherwise fit within the definition of telecommunications carrier.
VoIP is an example of such a service. There is no doubt that VoIP replaces a substantial portion of local telephone exchange service — it offers exactly the same functionality as phone service. And, in contrast to broadband service, the Commission has explicitly refrained from designating VoIP as an information service under the Communications Act, see Federal-State Joint Board on Universal Service, Report to Congress, 13 F.C.C.R. 11,501, 11,541 ¶ 83, 1998 WL 166178 (1998).
It seems that the Commission had little interest in reading CALEA in a manner that is consistent with the statute’s language and structure. The Commission’s argument is quite revealing. By emphasizing the need to construe CALEA to “ensur[e] that technological change [does] not erode lawful surveillance authority,” FCC’s Br. at 30, the Commission betrays its true objective: administrative amendment of the statute. Our standard for reviewing an agency’s interpretation of congressional commands does not permit us to ratify the FCC’s unauthorized attempt to legislate new and better tools for law enforcement.
As Chevron and its progeny teach, an “agency’s interpretation of the statute is not entitled to deference absent a delegation of authority from Congress to regulate in the areas at issue.” Motion Picture Ass’n of Am., Inc. v. FCC, 309 F.3d 796, 801 (D.C.Cir.2002). In MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994), the Court held that the FCC’s congressionally authorized ability to modify the § 203 requirements of the Communications Act did not permit the agency to make basic and fundamental changes in the statute’s regulatory scheme. In refusing to ratify the Commission’s interpretation of the statute, the Court found it “highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion — and even more unlikely that it would achieve that through such a subtle device as permission to ‘modify’ rate-filing requirements.” Id. at 231, 114 S.Ct. 2223.
The Supreme Court reiterated this view in Brown & Williamson. There the Court rejected an attempt by the Food and Drug Administration to regulate tobacco products, noting that “Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” 529 U.S. at 160, 120 S.Ct. 1291. See also Am. Library Ass’n v. FCC, 406 F.3d 689 (D.C.Cir.2005) (an agency does not possess plenary authority to act within a given area simply because Congress has endowed it with some authority to act in that area); Am. Bar Ass’n v. Federal Trade Comm’n, 430 F.3d 457 (D.C.Cir.2005) (same).
Similar considerations militate against the proposition that, in enacting CALEA, Congress quietly granted the FCC the authority to subject a new industry — providers of broadband service — to the intrusive requirements of the statute. In gauging the plausibility of the FCC’s purported authority, one surely must look to the FCC’s treatment of the “information services” exception under the Communications Act. A term in one statute does not necessarily control the Commission’s actions under another statute. But here the Commission’s earlier rulings show that “information services” has become a term of art. The agency cannot simply ignore its prior consistent constructions of “information services,” especially when it offers no coherent alternative interpretation. Un*320der the Commission’s current order, “information services” is meaningless.
Prior to the issuance of the instant Order, the Commission has consistently held that broadband Internet service is an “information service.” It has never previously said otherwise. Indeed, it has never hinted otherwise. For example, in its Declaratory Ruling on the status of cable modem service under the Communications Act, the Commission held:
As currently provisioned, cable modem service is a single, integrated service that enables the subscriber to utilize Internet access service through a cable provider’s facilities and to realize the benefits of a comprehensive service offering.
... Consistent with the statutory definition of information service, cable modem service provides the capabilities described above “via telecommunications.” That telecommunications component is not, however, separable from the data-processing capabilities of the service. As provided to the end user the telecommunications is part and parcel of the cable modem service and is integral to its other capabilities.
Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities, Declaratory Ruling and Notice of Proposed Rulemaking,17 F.C.C.R. 4798, 4823 ¶¶ 38-39, 2002 WL 407567 (2002) (internal citations omitted). See also Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Report & Order & Notice of Proposed Rulemaking, CC Docket No. 02-33, FCC 05-150, ¶ 15, 2005 WL 2347773 (rel. Sept. 23, 2005) (“Because wireline broadband Internet access service inextricably combines the offering of powerful computer capabilities with telecommunications, we conclude that it falls within the class of services identified in the Act as ‘information services.’ ”); Federal-State Joint Board on Universal Service, 13 F.C.C.R. at 11,539 ¶80, 1998 WL 166178 (“The provision of Internet access service involves data transport elements .... But the provision of Internet access service crucially involves information-processing elements as well; it offers end users information-service capabilities inextricably intertwined with data transport. As such, we conclude that it is appropriately classed as an ‘information service.’ ”) (internal citations omitted).
There is no doubt that an “initial agency interpretation is not instantly carved in stone”; nor is there any doubt that, if acting pursuant to delegated authority, an agency may adopt different interpretive positions to address different problems. See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 125 S.Ct. 2688, 2700, 162 L.Ed.2d 820 (2005) (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863-64, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). But these points are of no moment in this case.
The question here is whether the FCC has identified a statutory predicate for enlarging CALEA’s scope to encompass providers of broadband access. It has not. Merely saying that broadband is not an information service does not make it so, certainly not in light of all that the FCC has said in the past. And merely invoking law enforcement, “as though it were a talisman under which any agency decision is by definition unimpeachable,” Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983), offends good sense.
The FCC can no more contend that “information service” providers are really “telecommunications carriers” because their regulation can facilitate the law enforcement purposes of CALEA, than the *321agency could assert that those who operate “movie theaters” are really “radio broadcasters” because their regulation would facilitate control of indecent material pursuant to 18 U.S.C. § 1464 (2000). There is absolutely no permissible basis for this court to sustain the FCC’s convoluted attempt to infer broad new powers under CALEA. The agency has simply abandoned the well-understood meaning of “information services” without offering any coherent alternative interpretation in its place. The net result is that the FCC has altogether gutted the “information services” exemption from CALEA. Only Congress can modify the statute in this way.
Appendix
The Applicable Provisions of the Communications Assistance for Law Enforcement Act, 47 U.S.C. § 1001 et seq.
47 U.S.C. § 1001. Definitions.
* * * * * *
(6) The term “information services ”—
(A) means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications; and
(B) includes—
(i) a service that permits a customer to retrieve stored information from, or file information for storage in, information storage facilities;
(ii) electronic publishing; and
(iii) electronic messaging services; but
(C) does not include any capability for a telecommunications carrier’s internal management, control, or operation of its telecommunications network.
(8) The term “telecommunications carrier”—
* *
(C) does not include—
(i) persons or entities insofar as they are engaged in providing information services;
‡ # *1* H*
47 U.S.C. § 1002. Assistance capability requirements.
(a) Capability requirements
... a telecommunications carrier shall ensure that its equipment, facilities, or services that provide a customer or subscriber with the ability to originate, terminate, or direct communications are capable of [serving government needs in intercepting digital and other communications] ....
(b) Limitations
$ ‡ ‡ ‡
(2) Information services; private networks and interconnection services and facilities
The requirements of subsection (a) of this section do not apply to—
(A) information services;
* * * * * *