Cable’s Brand X Triumph Featured In Chevron Doctrine Argument

Jan 17, 2024

By Ted Hearn, Editor of Policyband

Washington, D.C., Jan.17, 2024 – A key case won by the cable industry in 2005 could determine the outcome of a major Supreme Court decision on a pillar of administrative law that governs agencies like the Federal Communications Commission.

At oral argument today, Justices referred several times to the Brand X case, which sustained the FCC’s decision to keep cable broadband deregulated. The importance of the case was the court’s decision to defer to the FCC’s legal reasoning that cable broadband wasn’t a telecommunications service normally subject to heavy oversight.

In referencing the Brand X case, Justice Neil Gorsuch suggested the decision underscored flaws in the judicial doctrine called Chevron deference, which gives the benefit of the doubt to government agencies, whether the policy at issue is regulatory or deregulatory.

“.. I'm struck on that score by the Brand X case, which involved broadband, in which this Court said, okay, agency, you automatically win with respect to one interpretation of the Bush administration, I believe it was, and then, of course, the next administration came back and proposed an opposite rule. And then the next administration came back and flipped it back closer to the first. And as I understand it, the present administration is thinking about going back to where we started,” Gorsuch said.

In October, the FCC under Democratic Chair Jessica Rosenworcel proposed new Net Neutrality rules that would, among other things, classify Internet Service Providers (ISPs) as common carriers and bar them from blocking or throttling online content. The rules would also ban ISPs from accepting payment in exchange for prioritized treatment of content.

The FCC's back-and-forth treatment of ISPs based on the political party in power apparently prompted Gorsuch to describe Brand X as “a recipe for instability, isn't it, because each new administration can come in and undo the work of a prior one.”

U.S. Solicitor General Elizabeth Prelogar defended Chevron deference.

“The Chevron framework is a bedrock principle of administrative law with deep roots in this court's jurisprudence. Overruling a precedent as foundational as Chevron should require a truly extraordinary justification and [Chevron opponents] don't have one,” she said.

Asked whether she supported the Brand X case, Prelogar said, “Yes. I think it is a logical follow-on of Chevron.”

She added at one point that opponents of Chevron deference have “kicked up some dust about exactly what Brand X does.”

The conservative-majority high court is expected to modify or overturn the Chevron doctrine, which requires federal courts to defer to the FCC and other agencies that offer a reasonable interpretation of vague statutory language. It could be months before the court issues a decision.

The court’s holding in the cases argued today – Relentless, Inc. v. Dept. of Commerce, and Loper Bright Enterprises v. Raimondo Commerce – could put an end to the FCC’s effort to impose Net Neutrality, meaning Congress would need to pass a law.

Opponents of the Chevron Doctrine want courts to lessen the power of regulatory agencies by being able to reach and enforce different conclusions on the meaning of laws, keeping tighter control over the bureaucracy.

Liberal Justices Justice Elena Kagan and Ketanji Brown Jackson voiced support for allowing expert agencies to fill statutory gaps left by Congress.

“I’m worried about the courts becoming uber-legislators,” Jackson said.

Justice Brett Kavanaugh suggested he didn’t agree it was necessary to keep Chevron deference as a precedent in an effort to promote stability in the law.

“You say don't overrule Chevron because it would be a shock to the system, but the reality of how this works is Chevron itself ushers in shocks to the system every four or eight years when a new administration comes in, whether it's communications law or securities law or competition law or environmental law …”

Kavanaugh referred to George Washington University Law School Professor Richard J. Pierce Jr, as a scholar who has soured on Chevron deference.

“He had been a fan of Chevron. Now he's not because he says it's a source of extreme instability in the law. That's his phrase,” Kavanaugh said.