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CONTACT: Patrick Ross or Amy Smorodin
August 11, 2005
(202) 289-8928
Brand X Decision Raises Broader Questions
May Views Case as "Major Administrative Law Decision"

WASHINGTON D.C. - The Supreme Court's Brand X decision has broader implications than simply affirming the FCC's classification of broadband, states Randolph May, Senior Fellow at the Progress & Freedom Foundation. May explains in "Major Case for Agencies," an opinion piece in The National Law Journal, that in addition to classifying broadband Internet service as an information service, the decision also strongly reaffirms a seminal Supreme Court ruling from over 20 years ago. In the process, the Court enhanced the authority of federal agencies by clarifying that an agency interpretation of an ambiguous statute trumps even a prior judicial interpretation of the same statute.

In his article, May states that the Brand X ruling "amounts to a strong endorsement of so-called Chevron deference, with significant separation of powers implications. The landmark 1984 case of Chevron U.S.A. Inc. v. Natural Resources Defense Council held that if a statutory provision is ambiguous, and if the implementing agency's construction is reasonable, a federal court is required to accept the agency's statutory interpretation, even if it differs from one the court deems better." At odds in the Brand X case was the FCC's and a federal appeals court's classification of cable broadband service. Specifically, the 9th U.S. Circuit Court of Appeals previously had ruled broadband Internet service to be a telecommunications service, while the FCC later classified cable broadband as an information service. The Supreme Court held the appeals court erred in not deferring to the agency. According to May, the Brand X decision also raises an interesting question concerning application of Chevron deference to the FCC. May explains, "The agency construing the statutory ambiguity in Chevron was the Environmental Protection Agency (EPA), part of the executive branch; hence, the court's reference to the political accountability of the chief executive and the incumbent administration's policy views. But, unlike the EPA, the FCC is a so-called 'independent' regulatory agency not subject to the president's control." May continues, "If this is so, the rationale underlying Chevron perhaps should have less force when applied to the FCC. While it is true that the FCC is more politically accountable than the courts, it is arguably more accountable to Congress than to the president."

May has just completed his term as Chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice. With over 20,000 Section members, this is the ABA component that focuses primarily on improving government administration and agency regulatory practices.

The Progress & Freedom Foundation is a market-oriented think tank that studies the digital revolution and its implications for public policy. It is a 501(c)(3) research & educational organization.



The Progress & Freedom Foundation