National Cable & Telecommunications Ass'n v. Brand X Internet Services
| National Cable & Telecommunications Association v. Brand X Internet Services | |
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| Argued March 29, 2005 Decided June 27, 2005 |
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| Full case name | National Cable & Telecommunications Association, et al. v. Brand X Internet Services, et al. |
| Docket nos. | 04-277 |
| Citations | 545 U.S. 967 (more)
125 S. Ct. 2688; 162 L. Ed. 2d 820; 2005 U.S. LEXIS 5018; 18 Fla. L. Weekly Fed. S 482
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| Prior history | FCC order affirmed in part, vacated in part, remanded, Brand X Internet Servs. v. FCC, 345 F.3d 1120 (9th Cir. 2003); rehearing, rehearing en banc denied, 2004 U.S. App. LEXIS 8023 (9th Cir. Mar. 31, 2004); cert. granted, sub nom. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 543 U.S. 1018 (2004) |
| Subsequent history | On remand, sub nom. Brand X Internet Servs. v. FCC, 2006 U.S. App. LEXIS 1573 (9th Cir., Jan. 23, 2006) |
| Holding | |
| The Court held that the FCC properly decided that cable service is an information service. | |
| Court membership | |
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| Case opinions | |
| Majority | Thomas, joined by Rehnquist, Stevens, O'Connor, Kennedy, Breyer |
| Concurrence | Stevens |
| Concurrence | Breyer |
| Dissent | Scalia, joined by Souter, Ginsburg (part I only) |
| Laws applied | |
| Telecommunications Act of 1996 | |
National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), is a United States Supreme Court case in which the Court declared in a 6–3 decision that the administrative law principle of Chevron deference to statutory interpretations by administrative agencies tasked with executing the statute trumped the precedents of the United States Courts of Appeals unless the Court of Appeals had held that the statute was "unambiguous" under Chevron. The Supreme Court therefore upheld the Federal Communications Commission's determination that a cable Internet provider is an "information service", and not a "telecommunications service" and as such competing internet service providers (ISPs) like Brand X Internet were denied access to the cable and phone wires to provide home users with competing internet service.
In the United States, modern telecommunications law began in 1934 with the passage of the first Telecommunications Act. This act created the Federal Communications Commission and charged said agency to regulate telegraph and telephone providers "regardless of whether they had monopoly power." The Commission also was to place common carrier restrictions on such providers. A "common carrier" designation has been historically applied to "private entities which [have] served the public in the performance of public functions similar to those performed by the government...." In addition, under common carrier status these entities were charged with "certain obligations."
With the increased adoption of cable television in the 1970s, the courts were tasked with deciding whether the new medium should be classified according to common carrier stipulations. The first test came in 1972 with United States v. Midwest Video Corp. In the case, the FCC created a rule which forced cable providers with 3,500 or more subscribers to broadcast or otherwise make their facilities available for local public-access programming. A Court of Appeals vacated the decision, ruling that the Commission had no right to issue it. The Supreme Court reversed, stating that the FCC could indeed regulate cable providers through its so-called ancillary jurisdiction. Furthermore, the Court stated that '"until Congress acts to deal with the problems brought about by the emergence of CATV, the FCC should be allowed wide latitude."' Seven years later another case dealing with cable and common carrier came before the Court. FCC v. Midwest Video II involved another FCC decree, this time requiring cable providers with 4,500 or more subscribers and twenty or more channels to provide some of their channel space for publicly-minded programming. This time, the Supreme Court sided with the cable company, reversing the Appeals Court ruling and stating that the FCC overstepped its bounds in passing the regulations. In its opinion, the Court wrote that "with its access rules, the Commission has transferred control of the content of access cable channels from cable operators to members of the public who wish to communicate by the cable medium. Effectively, the Commission has relegated cable systems, pro tanto, to common-carrier status.'" This was the first time the Supreme Court distinguished between entities that were subject to common carrier restrictions and those that were not.
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