We all know now that in its now famous Brand X decision, the Supreme Court majority accorded famous Chevron deference to the FCC's interpretation of the meaning of the statutory terms "telecommunications" and "information services". The Supreme Court's 1984 Chevron decision held that if a statutoty directive is ambiguous, then courts must defer to any reasonable agency construction of the statute. If the statutory directive is unambiguous, then, of course, the agency administering the statute must implement the clear statutory mandate.

Now, in Brand X, speaking through Justice Thomas, the Court ruled that when a court of appeals (here, perchance, the misbegotten almost-never-right Ninth Circuit) already has ruled on the very issue (here, perchance, the meaning of "telecommunications" and "information services") that again comes before the court after a subsequent agency interpretation, the court must defer to the agency's interpretation if --and this is a big IF--the earlier judicial decision was not based on the view that the statute unambiguously required that construction. Whew! Exhale!

As I write this my colleague Kent Lassman is in Austin, Texas, testifying before the House Committee on Regulated Industries. The topic is "The Impact of Statewide Video Franchise and Telecommunications Reform in Texas," and along with testifying, Kent is presenting the committee with a new Progress on Point he has authored titled "Franchising in the Local Communications Market: A Primer and Discussion of Three Questions." The paper is worth a read for those interested in the jurisdictional questions surrounding franchising.

In Kent's own words, here is the thrust of his message to the Texas state legislature:

Local franchise authority is an anachronism. Franchises were established as a medieval grant of authority, enmeshed in communications law as a regulatory tool to limit market power, and cemented in local government as a stable, and hidden, source of tax revenues. Today local franchise authority stands in the way of new market entry, additional facilities investment and enhanced digital, broadband choices for consumers. A statewide franchise to the multichannel video marketplace would be a welcome change from the status quo and an opportunity to reduce regulatory costs on all providers of IP based services. Eventually, both the law and the technologies at issue suggest a national solution is in order.

On a relatively unrelated note, I hope while Kent's in Austin he'll have a chance to take in some good blues at Antone's.

Beware lowly citizens of Planet Cyberspace, an ominous new threat lurks in your midst. Its name is Google and this beast won't rest until it has taken control of all our minds. At least that's what Wired columnist Adam Penenberg would lead us to believe.

In a June 23rd article entitled "Beware the Google Threat," Penenberg spins a dark and foreboding tale of "big, bad" Google's apparent sinister plot to take over the world and control our minds. You think I'm kidding? Well, let's dissect Penenberg's apocalyptic article in detail.

The FCC has a proceeding open that, even after its Supreme Court victory in Brand X, suggests there may be some uncertainty about whether the agency will regulate one-price "bundles" of broadband and other services like voice. To read my SkyReport op-ed on this issue, click here.

Those who would retain the regulatory status quo of pervasive price regulation have switched epithets in the last year from "monopoly" to "duopoly." A duopoly, we are told, is just as bad because the two firms in the market will cozily divide up markets and share supracompetitive profits.

It appears someone forget the duopolists that this is how the textbooks demand they behave. SBC has again escalated the price wars with cable, offering three free months of TV and high-speed Internet service for defectors from cable.

As I have stated repeatedly, the FCC needed to win the Brand X litigation to carry out its plan to minimize regulation and thereby bring consumers the benefits of investment and innovation in competing broadband networks. Based on his reaction to Monday's Supreme Court decision affirming the FCC, Chairman Martin appears to agree. But even as we (or at least some of us) celebrate Monday's decision as a victory for consumers, it is important to remember that, for the FCC, this is only a first step down a long and winding road.

I am in the middle of reading Justice Thomas's opinion in Brand X. It is always dangerous to comment half-way through -- but what's blogging for if not partial takes that later prove embarrassingly wrong?

Nonetheless, this reads to me like an important administrative law decision that cleans up many of the messes between courts and agencies that may exist or potentially exist. In short, the opinion puts the administrative agencies in the driver's seat to decide statutory ambiguities. To this, an administrative lawyer says, Duh! But getting Chevron deference even after a court has construed the statute is clarifying (the Ninth Circuit had already decided that cable broadband fell under Title II common carriage in its City of Portland case).

Of course, as Phil Weiser notes, the FCC could have avoided all of this difficulty had it just acted more quickly and not allowed the Ninth Circuit to fill the void.

Finally, this case destroys further the quaint assumption that Justices Thomas and Scalia vote lockstep. The majority is Thomas, J.; the dissent is Scalia, J.

Question: Though I agree with Professor Weiser's post above about the FCC needing to make a decision, doesn't this outcome deepen the hazard that agencies can hang back and wait for a court to decide a hard case and then act in a quasi-appellate fashion to reverse that construction? I suppose there is still the danger that the court will deem the statute "unambiguous" and hence foreclose contrary agency interpretations, but this decision still ultimately vindicates the FCC's inaction.

The FT has a handy graphic and explanation of various Wi Fi standards.

Adam Thierer and Mr. Property Matters himself Jim DeLong have blogged on Kelo and what it means, and its ironies.

Just a quick note on the politics of this case. The Right, as it has, has ample reason to decry this public taking of private property to give the property to a "worthier" user. The foundational meaning of property rights to the political right traces to Locke, if you are a classical liberal, or Burke, if you are prudential conservative.

The Left here is in a pickle. Though they have no qualms about the public taking of private property for "public purposes," which they not coincidentally get to define and thus have to make a half-hearted defense of Kelo. The facts here belie that defense though, because this taking is for corporate gain and the supposed public gains are all subsidiary to that.

The defenders of Kelo then turn out to be a most unsavory lot: the corporatists, the municipal renewal dreamers and the city council empire-builders. Predictably, it is the Left's weakening of property rights that has given the corporatists space to crush the little guy.

Thanks legal positivists and progressives. You have made taking property for corporate interests respectable .

University of Chicago prof Randy Picker has launched a new "MobBlog" which creates a temporary blog community to discuss a chosen topic. The forum is currently discussing the Brand X and Grokster cases, which may now be decided on Monday. DACA co-chairs Phil Weiser and Jim Speta are among those who are all mobbed up.