The University of New Hampshire Law Review
From AT&T to Brand X Declining Checks and Balances in an Increasingly Complex Marketplace
When President Clinton signed the Telecommunications Act of 1996, he used the same pen that President Eisenhower used to sign legislation for the Interstate Highway system into law. It was a fitting analogy. In the same way that the interstate road system was expected to open up interstate commerce, the Internet system was expected to open up electronic commerce. In signing the 1996 legislation into law, President Clinton and Congress were updating the regulatory and legislative framework to adapt it to the new realities and opportunities provided by the Internet. The legislation noted that broadband access to the Internet was critical to the continued economic vitality of the United States.
In contrast to the success of the Interstate Highway system, however, broadband adoption in the United States has lagged behind that of other developed nations. Against this backdrop, in National Cable & Telecommunications Ass’n v. Brand X Internet Services, the Supreme Court held that, under the Telecommunications Act, cable modem providers are not required to provide access to other Internet Service Providers (ISPs), despite the fact that local telephone providers had been required to provide access to third party Digital Subscriber Line (DSL) providers. As a result, the goal of increased broadband adoption now falls squarely on the unfettered administrative choices made by the FCC. […]
This note examines the administrative law implications of the Brand X decision. First, this note reviews the history and legal context framing the decision. Then, this note examines the decision itself from a textual, historical, and policy perspective. It is concluded that, while agencies offer welcome expertise for resolving complex questions, deference to agency expertise should not trump Congressional guidance to the contrary.”
Ross G. Hicks, From AT&T to Brand X Declining Checks and Balances in an Increasingly Complex Marketplace, 5 Pierce L. Rev. 113 (2006), available at http://scholars.unh.edu/unh_lr/vol5/iss1/7