Seila Law LLC v. Consumer Financial Protection Bureau: The Supreme Court Considers Whether an Independent Agency with a Single Director Who Can Be Removed Only “For Cause” is Constitutional

RODGER CITRON

Rodger Citron, Associate Dean for Research & Scholarship and Professor of Law at Touro Law, comments on a case in which the U.S. Supreme Court will hear argument this week that presents the question whether an independent agency with a single director who can be removed only “for cause” violates the separation of powers principle enshrined in the Constitution. Citron notes that the decision to hear the case is unusual in that there is no conflict among the federal appeals courts, but he points out that that the government’s support of the cert. petition and then-Judge Brett Kavanaugh’s dissent on the issue when it came before the D.C. Circuit likely helped the present case come before the Court.

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West v. Charter Communications, Inc.

Docket: 19-2442

Opinion Date: March 2, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Communications Law, Energy, Oil & Gas Law, Internet Law, Real Estate & Property Law, Zoning, Planning & Land Use

In 1938, West’s predecessor granted Louisville Gas & Electric’s predecessor a perpetual easement permitting a 248-foot-tall tower carrying high-voltage electric lines. In 1990, Louisville sought permission to allow Charter Communication install on the towers a fiber-optic cable that carries communications (telephone service, cable TV service, and internet data); West refused. In 2000 Louisville concluded that the existing easement allows the installation of wires that carry photons (fiber-optic cables) along with the wires that carry electrons. West disagreed and filed suit, seeking compensation. The Seventh Circuit affirmed that the use that Louisville and Charter have jointly made of the easement is permissible under Indiana law. The court cited 47 U.S.C. 541(a)(2), part of the Cable Communications Policy Act of 1984, which provides: Any franchise shall be construed to authorize the construction of a cable system over public rights-of-way, and through easements, which is within the area to be served by the cable system and which have been dedicated for compatible uses, except that in using such easements the cable operator shall ensure…. The court examined the language of the easement and stated: “At least the air rights have been “dedicated” to transmission, and a telecom cable is “compatible” with electric transmission. Both photons and electrons are in the electromagnetic spectrum.”