Swallows Holding, Ltd. - Page 37

                                        -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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