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Monday, June 27, 2005

Brand X: The Ad Law Consequences
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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.

posted by Ray Gifford @ 11:05 AM | Communications

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