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Free Press adviser challenges claim that FCC reclassification would be overturned

Would a reclassification of broadband to Title II be overturned by courts? A former Supreme Court litigator hired by U.S. Telecom to give his opinion says so, but some disagree.

Proponents of the Federal Communications Commission putting broadband under a Title II common carrier framework say the agency has more flexibility than U.S. Telecom is describing.

Here's how Marvin Ammori, senior adviser for public interest group Free Press and law professor at the University of Nebraska, breaks it down (in an e-mail):

The basic law is pretty simple and well-known. Under a precedent called Chevron, courts must defer to an agency’s “reasonable interpretation” of a statute where a statute is “ambiguous.” “Ambiguous” means that the statute is subject to more than one reasonable interpretation.

The Supreme Court already held, in Brand X, that the Act was ambiguous on classifying broadband Internet access. The two “reasonable” interpretations, according to the Supreme Court itself, were whether broadband Internet access did or did not have a Title II component. Therefore, courts must defer to either interpretation -- both are reasonable. The issue is already decided

The FCC changing its past conclusion also is subject to the same deference. Courts expect agencies to change their policies as facts change and as administrations pursue different policies. The precedent called Chevron, itself, upheld an agency reversal of recent policy. And the FCC got deference in the Third Circuit when it reversed its classification of DSL—from having a Title II component to not having one. The same deference would apply.

By Cecilia Kang  |  April 30, 2010; 12:41 PM ET
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