Brand X Internet Services v. Federal Communications Commission

concurring:

I concur in the court’s conclusion that, in light of our holding in Mesa Verde, we are bound by our own interpretation of the Telecommunications Act in Portland and must vacate the FCC’s Declaratory Ruling.

I write separately to note that our adherence to stare decisis, even in the face of a subsequent agency interpretation contrary to our Portland decision, produces a result “strikingly inconsistent with Chevron’s underlying principles.” Russell L. Weaver, The Emperor Has No Clothes: Christensen, Mead and Dual Deference Standards, 54 Admin. L.Rev. 173, 192 (2002); see also Richard L. Pierce, Jr., Reconciling Chevron and Stare Decisis, 85 *1133 Georgetown L.J. 2225, 2260 (1997) (advocating a nuanced approach to conflicts between stare decisis and subsequent agency interpretations, and rejecting rigid adherence to precedent).

As Part I of the court’s opinion makes clear, the market for Internet services— what we called in Portland a “quicksilver technological environment,” Portland, 216 F.3d at 876 — is evolving quite rapidly. Indeed, it is the desire to ensure the continued development of this market — and to further Congress’ oft-stated desire that there be broad,…

concurring:

I agree that our prior decision in AT & T v. City of Portland, 216 F.3d 871 (9th Cir.2000), controls the statutory interpretation question and requires a remand. I write separately to underscore my conclusion that City of Portland was correctly decided. Considered in its entirety, the 1996 Telecommunications Act compels the conclusion that cable modem contains a telecommunications service component.

A

This is not a case that implicates Chevron deference, not only for the reasons noted in our unanimous opinion, but also because it is a question of pure statutory interpretation. In reviewing an administrative agency’s construction of the statute it administers, we must consider first “whether Congress has directly spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 , 104 S.Ct. 2778 , 81 L.Ed.2d 694 (1984). “If Congress has done so, the inquiry is at an end; the court ‘must give effect to the unambiguously expressed intent of Congress.’” Food and Drug Administration v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 , 120 S.Ct. 1291 , 146 L.Ed.2d 121 (2000) (quoting Chevron, 467 U.S. at 843 , 104…

PER CURIAM Opinion; Judge O’SCANNLAIN and Judge THOMAS, concurring in separate opinions.

OPINION

We must decide whether our prior interpretation of the Telecommunications Act controls review of the Federal Communications Commission’s decision to classify Internet service provided by cable companies exclusively as an interstate “information service.”

I

Over half of the households in the United States have Internet connections. See U.S. Dept, of Commerce, A Nation Online: How Americans Are Expanding Their Use of the Internet at 2 (Feb.2002), available at http:// www.ntia.doc.gov/ntia-home/dn/anationonline2.pdf (herein after “A Nation Online ’0. 1 Approximately 80 percent of those connections are “dial-up” connections. Such connections use the wires owned by local telephone companies to connect the user’s computer to an Internet Service Provider’s (“ISP’s”) “point of *1124 presence,” which in turn is connected to the Internet “backbone.” In addition to providing a connection to the Internet, most ISPs also provide services — including email, user support, and the ability to build web pages on the ISP’s servers — as well as proprietary content. Customers connecting to the Internet…