-124-
Portland, 216 F.3d 871, 880 (9th Cir. 2000), that court had
specifically ruled that broadband cable modems were a
“telecommunications service.”
The Supreme Court began its analysis by citing the FCC’s
broad grant of regulation-writing power--very similar to the
Secretary’s in section 7805(a)--of prescribing “such rules and
regulations as may be necessary in the public interest.” Brand
X, 125 S. Ct. at 2699. The Court recognized that the regulation
did change existing caselaw but reasoned:
A court’s prior judicial construction of a
statute trumps an agency construction
otherwise entitled to Chevron deference only
if the prior court decision holds that its
construction follows from the unambiguous
terms of the statute and thus leaves no room
for agency discretion.* * *
Id. at 2700.
The majority distinguishes Brand X in several ways:
! the FCC gave a more careful consideration of
developments in the field than the Secretary did
here;
! Brand X did not involve a change in the agency’s
own interpretation;
! the FCC was not a party in the court case whose
holding it was reversing; and
! the FCC’s new regulation was promulgated only five
years after the contrary caselaw.
Majority op. pp. 78-81.
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