-78-
First, the issue in Natl. Cable & Telecomm. Association v.
Brand X Internet Servs., supra, was whether broadband was subject
to regulation as a telecommunications service. Before ruling,
the Federal Communications Commission (FCC) had carefully
considered technological developments and its own related
interpretations. The Supreme Court’s extensive discussion of the
FCC’s work on its ruling suggests that it was exactly the kind of
agency decision that is most entitled to deference. Here, we
find no corresponding record of the Secretary’s consideration of
whether the relevant text in 1990 included a timely filing
requirement; the Secretary’s rationale for adopting the disputed
regulations is at best perfunctory.
Second, the Supreme Court in Natl. Cable & Telecomm.
Association v. Brand X Internet Servs., supra, noted that the FCC
had not previously ruled on the question at hand, but that its
ruling regarding broadband was consistent with prior FCC rulings.
Here, the Secretary in 1990 directly altered regulations adopted
in (and unchanged since) 1957. Thus, unlike Natl. Cable, the
instant case raises questions as to the reasonableness and how
much deference applies when the Secretary issues an
interpretative regulation that reverses long-settled law.
Third, in Natl. Cable & Telecomm. Association v. Brand X
Internet Servs., supra, the FCC was not a party to AT&T Corp. v.
Portland, 216 F.3d. 871 (9th Cir. 2000), the prior case that the
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