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Chapter 7

Chapter 7. Part III. What is the Internet under the FCC?. The broad band provider - your connection to the Internet backbone. May also be your ISP Are broadband internet providers telecommunications or information services?

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Chapter 7

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  1. Chapter 7 Part III

  2. What is the Internet under the FCC? • The broadband provider - your connection to the Internet backbone. • May also be your ISP • Are broadband internet providers telecommunications or information services? • The FCC does regulate information services, thus no preemption of state action.

  3. National Cable & Telecommunications Association et al. v. Brand X Internet Services et al., 545 U.S. 967 (2005) - Background • Portland wants to regulate broadband providers • Why might a locality want to regulate broadband? • How are the broadband providers determined in Baton Rouge? • Industry says they are telecommunications providers, thus not subject to local regulation • 9th Cir agrees that they are telecommunications providers under FCC regs.

  4. Brand X - 545 U.S. 967 (2005) • FCC then promulgates a rule defining broadband providers as information services • What did the Appeals Court say? • Did the United States Supreme Court agree that it was the 9th Cir's call? • Why didn't the earlier case bind the agency and prevent the rule? • Why does this put the FCC in a bind over net-neutrality?

  5. Leading up to Mead: Christensen v. Harris County, 529 U.S. 576 (2000) • What did the court rule? • “Here . . . we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters--like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference.” • Why is this consistent with our definition of a guidance document?

  6. When does Chevron Apply? - United States v. Mead, 533 U.S. 218 (2001) • Chevron was a notice and comment rule • Why does the notice and comment process better assure that an agency legal interpretation is sound? • Mead is a letter ruling on the classification of a product for tariff purposes (Daytimer calendars) • No notice and comment, thus no vetting • Can be changed at a later date without notice and comment - does not bind the agency • Should this letter ruling get Chevron deference?

  7. The Mead Test • ...administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority. • Remanded for Skidmore analysis. • What would you look for to decide if Mead applied?

  8. Back to Persuasiveness (Skidmore)? - Barnhart v. Walton, 535 U.S. 212 (2002) • This is a SSA interpretation of a statute that is in various guidance documents. • This is post-Mead, so the court is now fleshing out how to do Skidmore analysis on informal agency documents.

  9. The Barnhart Factors • The importance of interpretation to agency policy; • The period that the agency has held the view; • The legal expertise of the agency; • The complexity of the problem; • This is persuasiveness analysis • What can the agency due to strengthen its case for deference under Barnhart?

  10. Applying Barnhart • HUD issues guidance on construction of the anti-kickback provisions in a real estate act • Published in the register, but no notice and comment • Should the court defer to these under Barnhart? • Yes, according to the Second and Ninth Circuits; no, according to the Seventh Circuit. • You are not the only person who is confused

  11. Public Citizen v. U.S. Dept. of Health and Human Services, 332 F.3d 654 (D.C. Cir. 2003) • Is the Medicare Manual a notice and comment regulation? • Did the agency have the authority to make law on this issue? • Does this look more like Mead or Chevron? • Did the court find that the manual was a regulation with the force of law as to a third party? • How can the Medicare Manual be binding on providers if it does not have the force of law?

  12. Whitman v. American Trucking Assns., 531 U.S. 457 (2001) • Chevron Step One • The court found that the Clean Air Act was ambiguous on the point • Chevron Step Two • The court found that the agency had stepped outside of the ambiguity and overreached its authority. • Alternative reading – the agency went beyond Congressional intent, i.e., Step One

  13. Interpretation of an Agency's Own Rules • “‘‘a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation. • Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), upheld by Auer v. Robbins, 519 U.S. 452 (1997)

  14. Implications of Seminole Rock /Auer • Should interpretation of rules and statutes be the same standard? • Does Seminole Rock /Auer look like Chevron? • What perverse incentives does this give the agency if it gets to resolve ambiguous rules? • What if it just repeats the statute in the rule? • Does this transform the statute into a regulation entitled to more deference?

  15. What has Changed SinceSeminole Rock? • “In reaffirming Seminole Rock deference in recent years, the Court has not acknowledged that one of the underlying reasons for the original adoption of the Seminole Rock doctrine no longer exists. That is, in Seminole Rock the Court assumed that besides the regulatory language itself there would be no guide to the meaning of the rule other than administrative practice, because in 1945 agencies did not have preambles for rules, much less today’s extensive preambles, explaining what the rule does and why it is adopted.”

  16. Do the Courts Really Follow Chevron/Mead? • Scholars have studied the actual behavior of the appeals courts and the United States Supreme Court in applying these tests • The courts are more likely to useChevron when there is notice and comment or formal adjudications, and more likely to use Mead/Barnhart for less formal actions. • However, there are a lot of cases where formal actions get Mead and some cases in which less formal actions get Chevron.

  17. ABA Adlaw Conference 2008 - Justice Garland, 2nd Cir, on Chevron: • If you have an ambiguous statute, and need Chevron deference, do not say that the interpretation is clear and there is no other way to construe the law. Say it is ambiguous and you are making a reasonable interpretation based on your knowledge of the statute and the regulatory circumstances.

  18. The Implications of Ambiguous Standards • Assume you are agency council. • Assume you have an ambiguous statute and the agency wants to propose a new rule • Also assume that you want to avoid reversal in the courts because of the delay and cost • How does your advice differ if you are sure you will get Chevron, versus if there is a significant chance you will get Mead?

  19. Judicial Review of Facts

  20. Scope of Judicial Review of Facts • Congress sets scope of review, within constitutional boundaries. • Since the Constitution is silent on agencies, Congress has a pretty free hand. • Congress can allow anything from a trial de novo to no review, unless such an action otherwise runs afoul of the constitution.

  21. Trial De Novo • You start over at the trial court • Agency findings can be used as evidence, but there is no deference to the agency • FOIA • Used more by the states than the feds

  22. Independent Judgment on the Evidence • Decide on the agency record, but do not defer to the agency's interpretation of the record.

  23. Clearly Erroneous • Definite and firm conviction that a mistake has been made on the facts or policy • Same as reviewing a verdict by a trial judge without a jury

  24. Substantial Evidence - Formal Adjudications • 706(2)(E) - only applies to formal adjudications and formal rulemaking • Could a reasonable person have reached the same conclusion? • Standard for reviewing a jury verdict or for taking a case from the jury • Should a jury get more or less deference than an agency? • Hint - substantial means some, not a lot, when you are the agency

  25. Substantial Evidence - Informal Adjudications and Rulemaking • 706(2)(A) • Arbitrary and capricious or abuse of discretion • Same assessment of reasonableness as 706(2)(E), so the result is about the same as the substantial evidence test used for formal proceedings • This is the most common standard

  26. Substantial Evidence - Universal Camera v. NLRB, 340 US 474 (1951) • it is ‘‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’’; it is evidence sufficient to withstand a motion for a directed verdict. It is a less rigorous standard than ‘‘clearly erroneous,’’ the standard by which appellate courts review factual findings made by a trial judge. It is more rigorous than ‘‘no basis in fact.’’ The agency’s ‘‘findings are entitled to respect, but they must nonetheless be set aside when the record before a [court] clearly precludes the [agency’s] decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both. . . .’’

  27. Some Evidence • Scintilla test • The agency needs to show even less than in the substantial evidence standard • Only limited use

  28. Facts Not Reviewable At All • Congress can prevent certain types of judicial review • Compensation decisions under the Smallpox Vaccine Compensation Act are not reviewable • Enabling law is always reviewable unless Congress has taken away the court's subject matter jurisdiction.

  29. What if the Court thinks the Agency's Policy Choice is Wrong? • Should the court defer to findings which it believes are clearly erroneous, but are supported by substantial evidence? • Why is this consistent with the political control of agencies? • When the legislature gives the agency the power, it is also saying that it only wants agency decisions overturned in the most serious cases • Courts have different political views than agencies and thus they should be esp. careful about reversing agency decisions.

  30. Agency/ALJ Conflicts • Assume there is a hearing before an ALJ, the ALJ prepares a recommended opinion, and the agency wants to overrule the ALJ. • May the agency substitute its decision for that of the ALJ? • Why is the agency in a different position than the court when reconsidering an ALJ decision? • What must the agency do when it wants to overrule an ALJ?

  31. ALJ Expertise • Which ALJ decisions are entitled to the most deference? • Can the agency really reevaluate witness credibility decisions by the ALJ? • What ALJ decisions are entitled to the least deference? • In the firing of the union organizer caught smoking, why would evidence of an anti-smoking policy and enforcement reduce the deference to the ALJ’s determination of credibility of the witnesses?

  32. O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504 (1951) • Was a worker within course and scope of employment when he drowned trying to save a foundering swimmer? • Were there any disputed facts? • Is this a legal question, entitled to less deference, or a factual one, entitled to more deference?

  33. Frankfurter’s Hybrid Decision Analysis • [This] only serves to illustrate once more the variety of ascertainments covered by the blanket term ‘‘fact.’’ Here of course it does not connote a simple, external, physical event as to which there is conflicting testimony. The conclusion concerns a combination of happenings and the inferences drawn from them. In part at least, the inferences presuppose applicable standards for assessing the simple, external facts. Yet the standards are not so severable from the experience of industry nor of such a nature as to be peculiarly appropriate for independent judicial ascertainment as ‘‘questions of law.’’

  34. NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) • Company refuses to collectively bargain with buyers, saying they are managers. • Agency finds that only managers whose interests align with the company are exempted from unionization. • The court overruled the agency, holding that the law exempted all managers. • Why no substantial evidence review and Hearst/Chevron deference? • How might the agency still get deference on the remand to determine whether buyers are managers?

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