Case Study: Brand X

Case Study:
National Cable & Telecommunications Association et al. v. Brand X Internet Services et al. (2005)

Full Text of the Opinion:

1. Background and Summary of Case.

In February, 2015, the FCC released the 2015 Open Internet Order. Among other things, the Order reclassified broadband Internet access as a telecommunications service subject to common carrier regulation under the FCC’s Title II authority, pursuant to authority granted by the Telecommunications Act of 1996. Litigation in federal courts has already begun to challenge the FCC’s new regulatory scheme, including the FCC’s authority to change broadband’s existing classification from an information service regulated under Title I (in which it was not subject to common carrier regulatory practices).

However, Brand X clarifies the Supreme Court’s perception of this authority. Although in Brand X the Court upheld the FCC’s authority to classify broadband as an information service and not a telecommunications service, the rationale of the majority opinion clearly supports the opposite decision, too. Brand X recognizes the FCC’s authority to make this decision, regardless of which way it decides to classify.

The opinion discussed in this case study was issued concurrently on June 17, 2005 with the certiorari on Federal Communications Commission et al v. Brand X Internet Services et al. It reverses the decision of the Ninth Circuit Court of Appeals which had ruled against the FCC’s classification of broadband as an information service. The Ninth Circuit had reasoned that because cable modems used telecommunications technology, classifying broadband as telecommunication service was the best interpretation of The Telecommunications Act of 1996. The Ninth Circuit reasoned that since the FCC did not make the best interpretation, the agency’s classification could be struck down by the court. Supreme Court Justice Thomas’ majority opinion found fault with the Ninth Circuit’s reasoning.

2. Major Points of Reasoning.

The majority found the FCC’s construction of language from the Telecommunications Act of 1996 to be well within its lawful authority. Much of the opinion provides a primer on internet technology, both emerging and converging at that time. It gives the appropriate technological and policy background for why the thorny distinctions between “information” and “telecommunication” services exist in the first place. Given the complexity of this discussion, it suffices to say it allowed the Court to assert that the FCC’s interpretation of The Act was, in fact, reasonable. That it may not have been the best or even the only interpretation was beside the point to the Court, so long as it was reasonable.

In terms of precedent, the Court disapproved of the Ninth Circuit’s use of AT&T Corp. v. Portland which held that cable modem was a telecommunications service. The Court asserted that the proper precedent to use was Chevron. The Court’s reasoning began first with establishing the ambiguity of The Act, an ambiguity immediately obvious upon any reading of the legislation, and a persistent regulatory problem in more cases than this one.

The Court then uses this ambiguity to establish Chevron as the correct precedent in such a case: “If a statute is ambiguous, and if the implementing agency’s construction is reasonable, Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation. Id., at 843-844, and n. 11” (Thomas, 2005, p. 8).

Therefore, the majority opinion in Brand X clearly established:
1. The Telecommunications Act of 1996 is ambiguous regarding the definitions and classifications of “telecommunications services” versus “information services”, and
2. This ambiguity affords the FCC the authority to classify the services and create regulation based on a reasonable interpretation of the given wording, and
3. This interpretation does not need to agree with any particular court’s preferred reading of the ambiguity but must only be reasonable, and
4. In such a scenario where a court might read The Act differently than the FCC might, the courts must defer to the FCC (per Chevron).

In short, the FCC has authority under the ambiguous terms of the Telecommunications Act of 1996 to classify cable modem internet access as either information service (regulated under Title I) or telecommunications service (regulated under Title II) as it sees fit. Therefore, when considering the 2015 Open Internet Order, it is entirely reasonable to accept the FCC’s authority to now reclassify broadband as a telecommunications service (Title II) despite its earlier classification to the contrary, for this classification power rightly belongs to the FCC.

3. Dissenting Opinion.

Justice Scalia’s dissenting opinion focuses on his belief that because a cable modem has a telecommunications function, it by definition renders broadband cable Internet access a telecommunications service. This contrasts with majority arguments that the essential service provided as broadband Internet access is, by definition, an information service, and the modem is simply a functionally inseparable tool for providing the actual underlying service.

Scalia’s dissent also argued that the “Chevron deference” to agency interpretation gave federal agencies a dangerous amount of power to take “action that the Supreme Court found unlawful” by creating an environment where “judicial decisions” are “subject to reversal by Executive officers” (p. 14, p. 13).

4. Conclusion.

If the distinction between “information” and “telecommunication” services appears confusing or arbitrary, it is exactly this artificial and legally cumbersome distinction between converging technologies the 2015 Open Internet Order seeks to eliminate. While the majority may have been correct on their legal definitions, Scalia too was correct in his insight that these technologies could not logically or meaningfully be separated.
The FCC’s interpretation of Brand X agrees with this analysis. Section C.43 of the 2015 Order refers to both the majority and dissenting opinions of this case. And it states in no uncertain terms,

“Exercising our delegated authority to interpret ambiguous terms in the Communications Act, as confirmed by the Supreme Court in Brand X, today’s Order concludes that the facts in the market today are very different from the facts that supported the Commission’s 2002 decision to treat cable broadband as an information service” (FCC, 2015, Feb. 26, p. 14).

Opponents of the 2015 Open Internet Order who argue the FCC lacks authority to reclassify broadband under Title II betray a shallow understanding of the Brand X case. The FCC may have classified broadband one way for years, but that classification is theirs to make—or, as is now the case, to remake.

Case Study: Obergefell v. Hodges

Case Study:
576 U.S.; Obergefell v. Hodges, Director, Ohio Department of Health, et al. (2015)

Full Text of Opinion:

1. Summary of Case and Decision.

This case addresses several cases consolidated by the Sixth Circuit Court where same-sex couples filed District Court suits when their States had either denied them marriage licenses or refused to recognize same-sex marriages performed lawfully in other States. The District Courts all ruled in favor of these people, but the Circuit Court reversed and ruled against them.

Associate Justice Kennedy’s majority opinion reversed the Sixth Circuit Court’s decision. The Supreme Court determined States must grant marriage licenses to same-sex partners and recognize the legality of same-sex marriages performed in other States, per the Fourteenth Amendment.

2. Opinion as to Jurisdiction and Justiciability.

The opinion asserts marriage is a fundamental civil right and therefore covered by the Fourteenth Amendment “guarantee of equal protection” as a fundamental constitutional right. The opinion argues the Court can strike down laws which create inequality even when such laws have not been previously challenged. The opinion rejects arguments that more debate and studies need to be done, arguing that a body of law and literature has sufficiently addressed the question, and that “individuals who are harmed need not await legislative action before asserting a fundamental right.”

The Court refused to leave the fundamental right to marry in the hands of State legislatures because citizens were being denied Constitutionally-protected liberties. The opinion asserts this fundamentally constitutional matter falls within the jurisdiction of the Court and is entirely justiciable, not a matter which must await State legislation.

3. Opinion as to the Definition of Marriage.

The opinion’s discussion of the definition of marriage is broken down into several arguments. First, the opinion rejects arguments that same-sex marriages demean marriage, reasoning that same-sex applicants clearly place a high value on marriage or else would not pursue it. Second, the opinion recognizes that the institution of marriage has greatly changed and been redefined throughout history, and the inclusion of same-sex partners is merely one more phase in that historical trend. (The opinion refers especially to prior laws banning inter-racial marriages, though it touches on other historical trends such as arranged marriage.) Finally, the opinion gives no credence to arguments on the immorality of homosexual acts, arguing instead that laws to that effect demean citizens.

4. Opinion as to Marriage as a Fundamental Constitutional Right.

Four principles support the opinion’s assertion that marriage is a fundamental, constitutional right. First, the choice to marry is “inherent in the concept of individual autonomy.” Second, marriage “supports a two-person union unlike any other in its importance to committed individuals.” Third, marriage “safeguards children and families” by providing stability and dignity. (The court rejects arguments that intent to procreate is a qualification for marriage, reasoning that even opposite-sex unions may choose not to procreate.) Fourth, “marriage is a keystone of the Nation’s social order” due to the role it plays legally and socially.

5. Dissenting Opinions.

Dissenting opinions claim the Court had the “power to say what the law is, not what it should be,” denying arguments on the constitutionality of marriage rights. Dissenters argued marriage has “always been understood” as between a man and a woman, and was understood as such when the Fourteenth Amendment was ratified. Dissenters argued this core definition is not subject to change until State legislatures or public referenda redefine it through the democratic process. Dissenters argued the Court was not interpreting law but making policy, a job reserved for the legislature.

Dissenters found no merit in applying the Fourteenth Amendment to marriage, arguing that the judicial role is not to determine which rights are fundamental constitutional rights. Alito argued the constitution gives the people the right to determine what marriage is, not a fundamental right to marry regardless of gender. Thomas’ dissent focuses on the definition of liberty in terms of the Due Process and Equal Protection clauses of the Fourteenth Amendment, and argues that denying same-sex marriages in no way infringes upon a citizen’s liberty. He asserts that protected liberties are freedom from government interference, not necessarily freedom to do anything.

Dissenters argued that judicial precedent does not support the majority opinion, and the opinion is based solely on the majority’s belief that same-sex couples should be able to marry.

6. Conclusion.

Though I am glad for the Supreme Court’s decision, the Dissenters have valid reservations about the Court’s pushing the boundaries of its power. However, future generations will look back on this decision as favorably as Brown v. Board of Education, where the Court exercised power to strike down segregated education, or even Abraham Lincoln’s decision to end the institution of slavery. Neither of these actions was viewed without dissent at the time. Yet progressive-minded people view them favorably, for they acted against discrimination, inequality, and bigotry.

A fully democratic process does little to prevent abuses of minorities. The majority can always vote to marginalize a minority group, and this is the weakness of leaving this matter to State legislatures. As long as the Supreme Court uses its power to provide equal civil rights, then I applaud its application of power. The letter of the law as to the boundaries of power will always be a subordinate concern to the primary questions of improving justice in a society based on equality and fairness.

APPENDIX: Amendment 14, Section 1 (of 5)

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Passed by Congress 13 June, 1866. Ratified 9 July, 1868.

Separation of Powers: United States vs. Klein, 1871

U.S. Supreme Court (1871)

Facts: Wilson abandoned property to the Treasury Department when he was judged to have aided the rebellion. Under the Abandoned and Captured Property Act of March 12, 1863, Wilson’s property was sold, and the proceeds added to the Treasury. Wilson gained a full presidential pardon and amnesty by swearing a loyalty oath under the proclamation of Dec. 8th, 1863, said proclamation promising restoration of all rights of property to those who took the oath and accepted pardon. After Wilson’s death, Klein, the administrator of his estate, successfully petitioned the Court of Claims for the refund of said proceeds from the Treasury. An appeal was taken to the Supreme Court.

Within months of the filing of this appeal, the Supreme Court ruled in favor of the claimant in a factually similar case: U.S. v. Padelford. Congress subsequently passed new legislation, inside the year’s appropriation bill, that would force the courts to throw out cases in which the claimant had received a pardon for aiding the rebellion, and whose only proof of loyalty was an oath and acceptance of pardon. This legislation precluded a pardon as evidence in a claim, and would make unqualified acceptance of the pardon an admission of guilt in aiding the rebellion. The Attorney General remanded Padelford to the Supreme Court for dismissal under this new legislation.

Issue: Does Congress’ power to make exceptions to the appellate jurisdiction of inferior courts extend to withholding appellate jurisdiction from the Supreme Court in order to force a decision or to limit the full effect of presidential pardons, even to the extent of restoration of property rights?

Rule: Using legislation to either limit an executive pardon or force a de facto judicial decision exceeds the constitutional powers of the legislative branch.

Reasoning: Congress provided that the Supreme Court has appellate jurisdiction of the judgments of the Court of Claims in 1863. The appropriation bill of 1870 removed this jurisdiction only in specific cases, all of which would be adverse decisions for the government, effectively deciding the cases for the court. Although Congress has powers relating to the judicial branch, this exercise of legislative power to create judicial decisions surpasses the limits of separation of powers.

Furthermore, the bill’s impairment of the full effect of a presidential pardon infringes on the executive branch. Congress can neither limit the effect of a presidential pardon nor exclude from its exercise any class of offenders. The Supreme Court upheld its decision of Padelford, ruled in favor of Klein, and declared that Congress had violated its constitutional powers. The dissenting opinion disagreed upon the ruling of Klein’s case on matters of interpretation, but upheld the majority opinion on constitutional separation of powers.