Brand X Internet Services v. FCC¹

The court’s role in the Brand X case was to determine whether the prior interpretation of the Telecommunications Act controls the FCC’s finding of the cable modem platform as either a cable service, telecommunications service, or an information service.  Similar to VoIP, the cable modem can be molded into various categories regarding the regulation of the service. 

Being decided after the decision in AT&T v. City of Portland, the court used the two prong test established by Chevron U.S.A., Inc. v. National Resources Defense Council, Inc.²: the court must review the statute and if the “intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress;” if the statue is not clear, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Despite its attempted use of this test, the court found it ineffectual because the AT&T ruling is binding on the circuit.  The court basically repeated the finding in AT&T v. City of Portland that “cable broadband service was not a ‘cable service,’ but instead was part ‘telecommunications service’ and part ‘information service.’”

Furthermore, the Court discussed that if they had determined Congress’s intent in creating an act was unambiguous, then the court must follow the decision and no agency can modify it.  Similarly, with regard to universal service, the court found that the transfer of unchanged data does not mean an information service contains a telecommunications component.

Chevron case

Brand X case

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