-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.Page: Previous 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 Next
Last modified: May 25, 2011