# United States Telecom Ass'n v. Federal Communications Commission

> Court of Appeals for the D.C. Circuit · June 14, 2016 · 825 F.3d 674

URL: https://www.frixlaw.com/law-library/cases/3212871

## Case

- **Full name:** UNITED STATES TELECOM ASSOCIATION, Et Al., Petitioners v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Independent Telephone & Telecommunications Alliance, Et Al., Intervenors
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 14, 2016
- **Citations:** 825 F.3d 674; 423 U.S. App. D.C. 183; 64 Communications Reg. (P&F) 1663; 2016 U.S. App. LEXIS 10716; 2016 WL 3251234
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Tatel, Srinivasan, Williams
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3212871

## How later opinions describe it (automated extraction)

- explaining that online communication “has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watch- ing a movie”
- explaining that opline communication “has transformed nearly every aspect of our lives, from profound actions like choosing a leader1, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie”
- stating that the APA requires agencies to “provide sufficient factual detail and rationale for [a proposed] rule to permit interested parties to comment meaningfully” (quotation marks omitted)
- noting Johnson and holding that a statute passed vagueness muster “even if [the court did] not apply Hoffman’s elevated bar for facial challenges” because the statute “g[ave] sufficient notice to affected entities of the prohibited conduct”
- finding no jurisdiction to review regulatory flexibility analysis where petitioner failed to challenge that analysis in a petition for reconsideration

## Opinion text

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 2015 Decided June 14, 2016

No. 15-1063

UNITED STATES TELECOM ASSOCIATION, ET AL.,
PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS

INDEPENDENT TELEPHONE & TELECOMMUNICATIONS
ALLIANCE, ET AL.,
INTERVENORS

Consolidated with 15-1078, 15-1086, 15-1090, 15-1091,
15-1092, 15-1095, 15-1099, 15-1117, 15-1128, 15-1151,
15-1164

On Petitions for Review of an Order of
the Federal Communications Commission

Peter D. Keisler argued the cause for petitioners United
States Telecom Association, et al. With him on the joint
briefs were Michael K. Kellogg, Scott H. Angstreich, Miguel
A. Estrada, Theodore B. Olson, Jonathan C. Bond, Stephen E.
2
Coran, S. Jenell Trigg, Jeffrey A. Lamken, David H. Solomon,
Russell P. Hanser, Rick C. Chessen, Neal M. Goldberg,
Michael S. Schooler, Matthew A. Brill, Matthew T.
Murchison, Jonathan Y. Ellis, Helgi C. Walker, Michael R.
Huston, Kathleen M. Sullivan, James P. Young, C. Frederick
Beckner III, David L. Lawson, Gary L. Phillips, and
Christopher M. Heimann. Dennis Corbett and Kellam M.
Conover entered appearances.

Brett A. Shumate argued the cause for petitioners Alamo
Broadband Inc. and Daniel Berninger. With him on the briefs
were Andrew G. McBride, Eve Klindera Reed, Richard E.
Wiley, and Bennett L. Ross.

Earl W. Comstock argued the cause for petitioners Full
Service Network, et al. With him on the briefs were Robert J.
Gastner and Michael A. Graziano.

Bryan N. Tramont and Craig E. Gilmore were on the
briefs for amicus curiae Mobile Future in support of
petitioners CTIA-The Wireless Association and AT&T Inc.

Bryan N. Tramont was on the brief for amicus curiae
Telecommunications Industry Association in support of
petitioners. Russell P. Hanser entered an appearance.

William S. Consovoy, Thomas R. McCarthy, and J.
Michael Connolly were on the brief for amicus curiae Center
for Boundless Innovation in support of petitioners United
States Telecom Association, National Cable &
Telecommunications Association, CTIA-The Wireless
Association, American Cable Association, Wireless Internet
Service Providers Association, AT&T Inc., CenturyLink,
Alamo Broadband Inc., and Daniel Berninger.
3
Thomas R. McCarthy, William S. Consovoy, and J.
Michael Connolly were on the brief for amici curiae Members
of Congress in support of petitioners United States Telecom
Association, National Cable & Telecommunications
Association, CTIA-The Wireless Association, American
Cable Association, Wireless Internet Service Providers
Association, AT&T Inc., Centurylink, Alamo Broadband Inc.,
and Daniel Berninger.

R. Benjamin Sperry was on the brief for amici curiae
International Center for Law & Economics and
Administrative Law Scholars in support of petitioners United
States Telecom Association, National Cable &
Telecommunications Association, CTIA-The Wireless
Association, American Cable Association, Wireless Internet
Service Providers Association, AT&T Inc., Centurylink,
Alamo Broadband Inc., and Daniel Berninger.

David A. Balto was on the brief for amicus curiae
Richard Bennett in support of petitioners United States
Telecom Association, National Cable & Telecommunications
Association, CTIA-The Wireless Association, AT&T Inc.,
American Cable Association, Centurylink, Wireless Internet
Service Providers Association, Alamo Broadband Inc., and
Daniel Berninger.

David A. Balto was on the brief for amici curiae
Georgetown Center for Business and Public Policy and
Thirteen Prominent Economists and Scholars in support of
petitioners United States Telecom Association, National
Cable & Telecommunications Association, CTIA-The
Wireless Association, AT&T Inc., American Cable
Association, Centurylink, Wireless Internet Service Providers
Association, Alamo Broadband Inc., and Daniel Berninger.
4
John P. Elwood, Kate Comerford Todd, and Steven P.
Lehotsky were on the brief for amici curiae The National
Association of Manufacturers, et al. in support of petitioners.

Christopher S. Yoo was on the brief for amicus curiae
Christopher S. Yoo in support of petitioners.

Cory L. Andrews was on the brief for amici curiae
Former FCC Commissioner Harold Furchtgott-Roth and
Washington Legal Foundation in support of petitioners.
Richard A. Samp entered an appearance.

Hans Bader, Sam Kazman, and Russell D. Lukas were on
the brief for amicus curiae Competitive Enterprise Institute in
support of petitioners.

Kim M. Keenan and David Honig were on the brief for
amicus curiae Multicultural Media, Telecom and Internet
Council in support of petitioners.

Lawrence J. Spiwak was on the brief for amicus curiae
Phoenix Center for Advanced Legal and Economic Public
Policy Studies in support of petitioners.

William J. Kirsch was on the briefs for amicus curiae
William J. Kirsch in support of petitioners.

C. Boyden Gray, Adam J. White, and Adam R.F.
Gustafson were on the briefs for intervenors TechFreedom, et
al. in support of United States Telecom Association, National
Cable & Telecommunications Association, CTIA-The
Wireless Association, American Cable Association, Wireless
Internet Service Providers Association, AT&T Inc.,
CenturyLink, Alamo Broadband Inc., and Daniel Berninger.
Bradley A. Benbrook entered an appearance.
5
Jonathan B. Sallet, General Counsel, Federal
Communications Commission, and Jacob M. Lewis,
Associate General Counsel, argued the causes for
respondents. With them on the brief were William J. Baer,
Assistant Attorney General, U.S. Department of Justice,
David I. Gelfand, Deputy Assistant Attorney General, Kristen
C. Limarzi, Robert J. Wiggers, Nickolai G. Levin, Attorneys,
David M. Gossett, Deputy General Counsel, Federal
Communications Commission, James M. Carr, Matthew J.
Dunne, and Scott M. Noveck, Counsel. Richard K. Welch,
Counsel, Federal Communications Commission, entered an
appearance.

Kevin Russell and Pantelis Michalopoulos argued the
cause for intervenors, Cogent Communications, Inc., et al. in
support of respondents. With them on the joint brief were
Markham C. Erickson, Stephanie A. Roy, Andrew W. Guhr,
Robert M. Cooper, Scott E. Gant, Hershel A. Wancjer,
Christopher J. Wright, Scott Blake Harris, Russell M. Blau,
Joshua M. Bobeck, Sarah J. Morris, Kevin S. Bankston, Seth
D. Greenstein, Robert S. Schwartz, Marvin Ammori, Michael
A. Cheah, Deepak Gupta, Erik Stallman, Matthew F. Wood,
James Bradford Ramsay, Jennifer Murphy, Harold Jay Feld,
David Bergmann, and Colleen L. Boothby. Hamish Hume and
Patrick J. Whittle entered appearances.

Michael K. Kellogg, Scott H. Angstreich, Miguel A.
Estrada, Theodore B. Olson, Jonathan C. Bond, Stephen E.
Coran, S. Jenell Trigg, Jeffrey A. Lamken, Matthew A. Brill,
Matthew T. Murchison, Jonathan Y. Ellis, Helgi C. Walker,
and Michael R. Huston were on the joint brief for intervenors
AT&T Inc., et al. in support of respondents in case no. 15-
1151.
6
Christopher Jon Sprigman was on the brief for amici
curiae Members of Congress in support of respondents.

Gregory A. Beck was on the brief for First Amendment
Scholars as amici curiae in support of respondents.

Michael J. Burstein was on the brief for Professors of
Administrative Law as amici curiae in support of
respondents.

Andrew Jay Schwartzman was on the brief for amicus
curiae Tim Wu in support of respondents.

Andrew Jay Schwartzman was on the brief for amicus
curiae Open Internet Civil Rights Coalition in support of
respondents.

Joseph C. Gratz and Alexandra H. Moss were on the
brief for amici curiae Automattic Inc., et al. in support of
respondents.

Markham C. Erickson and Andrew W. Guhr were on the
brief for amicus curiae Internet Association in support of
respondents.

J. Carl Cecere and David T. Goldberg were on the brief
for amici curiae Reed Hundt, et al. in support of respondents.

Anthony P. Schoenberg and Deepak Gupta were on the
brief for amici curiae Engine Advocacy, et al. in support of
respondents.

Anthony R. Segall was on the brief for amici curiae
Writers Guild of America, et al. in support of respondents.
7
Allen Hammond was on the brief for amici curiae The
Broadband Institute of California and The Media Alliance in
support of respondents.

Corynne McSherry and Arthur B. Spitzer were on the
brief for amici curiae Electronic Frontier Foundation, et al. in
support of respondents.

Eric G. Null was on the brief for amicus curiae
Consumer Union of the U.S., Inc. in support of respondents.

Alexandra Sternburg and Henry Goldberg were on the
brief for amici curiae Computer & Communications Industry
and Mozilla in support of respondents.

Krista L. Cox was on the brief for amici curiae American
Library Association, et al. in support of respondents.

Phillip R. Malone and Jeffrey T. Pearlman were on the
brief for amici curiae Sascha Meinrath, Zephyr Teachout and
45,707 Users of the Internet in support of respondents.

Before: TATEL and SRINIVASAN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judges TATEL and
SRINIVASAN.

Opinion concurring in part and dissenting in part filed by
Senior Circuit Judge WILLIAMS.

TATEL and SRINIVASAN, Circuit Judges: For the third
time in seven years, we confront an effort by the Federal
Communications Commission to compel internet openness—
commonly known as net neutrality—the principle that
broadband providers must treat all internet traffic the same
8
regardless of source. In our first decision, Comcast Corp. v.
FCC, 600 F.3d 642 (D.C. Cir. 2010), we held that the
Commission had failed to cite any statutory authority that
would justify its order compelling a broadband provider to
adhere to certain open internet practices. In response, relying
on section 706 of the Telecommunications Act of 1996, the
Commission issued an order imposing transparency, anti-
blocking, and anti-discrimination requirements on broadband
providers. In our second opinion, Verizon v. FCC, 740 F.3d
623 (D.C. Cir. 2014), we held that section 706 gives the
Commission authority to enact open internet rules. We
nonetheless vacated the anti-blocking and anti-discrimination
provisions because the Commission had chosen to classify
broadband service as an information service under the
Communications Act of 1934, which expressly prohibits the
Commission from applying common carrier regulations to
such services. The Commission then promulgated the order at
issue in this case—the 2015 Open Internet Order—in which it
reclassified broadband service as a telecommunications
service, subject to common carrier regulation under Title II of
the Communications Act. The Commission also exercised its
statutory authority to forbear from applying many of Title II’s
provisions to broadband service and promulgated five rules to
promote internet openness. Three separate groups of
petitioners, consisting primarily of broadband providers and
their associations, challenge the Order, arguing that the
Commission lacks statutory authority to reclassify broadband
as a telecommunications service, that even if the Commission
has such authority its decision was arbitrary and capricious,
that the Commission impermissibly classified mobile
broadband as a commercial mobile service, that the
Commission impermissibly forbore from certain provisions of
Title II, and that some of the rules violate the First
Amendment. For the reasons set forth in this opinion, we
deny the petitions for review.
9
I.
Called “one of the most significant technological
advancements of the 20th century,” Senate Committee on
Commerce, Science and Transportation, Report on Online
Personal Privacy Act, Sen. Rep. No. 107-240, at 7 (2002), the
internet has four major participants: end users, broadband
providers, backbone networks, and edge providers. Most end
users connect to the internet through a broadband provider,
which delivers high-speed internet access using technologies
such as cable modem service, digital subscriber line (DSL)
service, and fiber optics. See In re Protecting and Promoting
the Open Internet (“2015 Open Internet Order” or “the
Order”), 30 FCC Rcd. 5601, 5682–83 ¶ 188, 5751 ¶ 346.
Broadband providers interconnect with backbone networks—
“long-haul fiber-optic links and high-speed routers capable of
transmitting vast amounts of data.” Verizon, 740 F.3d at 628
(citing In re Verizon Communications Inc. and MCI, Inc.
Applications for Approval of Transfer of Control, 20 FCC
Rcd. 18,433, 18,493 ¶ 110 (2005)). Edge providers, like
Netflix, Google, and Amazon, “provide content, services, and
applications over the Internet.” Id. at 629 (citing In re
Preserving the Open Internet (“2010 Open Internet Order”),
25 FCC Rcd. 17,905, 17,910 ¶ 13 (2010)). To bring this all
together, when an end user wishes to check last night’s
baseball scores on ESPN.com, his computer sends a signal to
his broadband provider, which in turn transmits it across the
backbone to ESPN’s broadband provider, which transmits the
signal to ESPN’s computer. Having received the signal,
ESPN’s computer breaks the scores into packets of
information which travel back across ESPN’s broadband
provider network to the backbone and then across the end
user’s broadband provider network to the end user, who will
then know that the Nats won 5 to 3. In recent years, some
edge providers, such as Netflix and Google, have begun
connecting directly to broadband providers’ networks, thus
10
avoiding the need to interconnect with the backbone, 2015
Open Internet Order, 30 FCC Rcd. at 5610 ¶ 30, and some
broadband providers, such as Comcast and AT&T, have
begun developing their own backbone networks, id. at 5688
¶ 198.
Proponents of internet openness “worry about the
relationship between broadband providers and edge
providers.” Verizon, 740 F.3d at 629. “They fear that
broadband providers might prevent their end-user subscribers
from accessing certain edge providers altogether, or might
degrade the quality of their end-user subscribers’ access to
certain edge providers, either as a means of favoring their
own competing content or services or to enable them to
collect fees from certain edge providers.” Id. Thus, for
example, “a broadband provider like Comcast might limit its
end-user subscribers’ ability to access the New York Times
website if it wanted to spike traffic to its own news website,
or it might degrade the quality of the connection to a search
website like Bing if a competitor like Google paid for
prioritized access.” Id.

Understanding the issues raised by the Commission’s
current attempt to achieve internet openness requires
familiarity with its past efforts to do so, as well as with the
history of broadband regulation more generally.

A.
Much of the structure of the current regulatory scheme
derives from rules the Commission established in its 1980
Computer II Order. The Computer II rules distinguished
between “basic services” and “enhanced services.” Basic
services, such as telephone service, offered “pure
transmission capability over a communications path that is
virtually transparent in terms of its interaction with customer
11
supplied information.” In re Amendment of Section 64.702
of the Commission’s Rules and Regulations (“Computer II”),
77 F.C.C. 2d 384, 420 ¶ 96 (1980). Enhanced services
consisted of “any offering over the telecommunications
network which is more than a basic transmission service,” for
example, one in which “computer processing applications are
used to act on the content, code, protocol, and other aspects of
the subscriber’s information,” such as voicemail. Id. at 420
¶ 97. The rules subjected basic services, but not enhanced
services, to common carrier treatment under Title II of the
Communications Act. Id. at 387 ¶¶ 5–7. Among other things,
Title II requires that carriers “furnish . . . communication
service upon reasonable request,” 47 U.S.C. § 201(a), engage
in no “unjust or unreasonable discrimination in charges,
practices, classifications, regulations, facilities, or services,”
id. § 202(a), and charge “just and reasonable” rates, id.
§ 201(b).

The Computer II rules also recognized a third category of
services, “adjunct-to-basic” services: enhanced services, such
as “speed dialing, call forwarding, [and] computer-provided
directory assistance,” that facilitated use of a basic service.
See In re Implementation of the Non-Accounting Safeguards
(“Non-Accounting Safeguards Order”), 11 FCC Rcd. 21,905,
21,958 ¶ 107 n.245 (1996). Although adjunct-to-basic
services fell within the definition of enhanced services, the
Commission nonetheless treated them as basic because of
their role in facilitating basic services. See Computer II, 77
F.C.C. 2d at 421 ¶ 98 (explaining that the Commission would
not treat as an enhanced service those services used to
“facilitate [consumers’] use of traditional telephone
services”).

Fifteen years later, Congress, borrowing heavily from the
Computer II framework, enacted the Telecommunications Act
12
of 1996, which amended the Communications Act. The
Telecommunications Act subjects a “telecommunications
service,” the successor to basic service, to common carrier
regulation under Title II. 47 U.S.C. § 153(51) (“A
telecommunications carrier shall be treated as a common
carrier under [the Communications Act] only to the extent
that it is engaged in providing telecommunications
services.”). By contrast, an “information service,” the
successor to an enhanced service, is not subject to Title II.
The Telecommunications Act defines a “telecommunications
service” as “the offering of telecommunications for a fee
directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the
facilities used.” Id. § 153(53). It defines telecommunications
as “the transmission, between or among points specified by
the user, of information of the user’s choosing without change
in the form or content of the information as sent and
received.” Id. § 153(50). An information service is an
“offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making
available information via telecommunications.” Id.
§ 153(24). The appropriate regulatory treatment therefore
turns on what services a provider offers to the public: if it
offers telecommunications, that service is subject to Title II
regulation.

Tracking the Commission’s approach to adjunct-to-basic
services, Congress also effectively created a third category for
information services that facilitate use of a
telecommunications service. The “telecommunications
management exception” exempts from information service
treatment—and thus treats as a telecommunications service—
“any use [of an information service] for the management,
control, or operation of a telecommunications system or the
management of a telecommunications service.” Id.
13
The Commission first applied this statutory framework to
broadband in 1998 when it classified a portion of DSL
service—broadband internet service furnished over telephone
lines—as a telecommunications service. See In re
Deployment of Wireline Services Offering Advanced
Telecommunications Capability (“Advanced Services
Order”), 13 FCC Rcd. 24,012, 24,014 ¶ 3, 24,029–30 ¶¶ 35–
36 (1998). According to the Commission, the transmission
component of DSL—the phone lines that carried the
information—was a telecommunications service. Id. at
24,029–30 ¶¶ 35–36. The Commission classified the internet
access delivered via the phone lines, however, as a separate
offering of an information service. Id. at 24,030 ¶ 36. DSL
providers that supplied the phone lines and the internet access
therefore offered both a telecommunications service and an
information service.

Four years later, the Commission took a different
approach when it classified cable modem service—broadband
service provided over cable lines—as solely an information
service. In re Inquiry Concerning High-Speed Access to the
Internet over Cable and Other Facilities (“Cable Broadband
Order”), 17 FCC Rcd. 4798, 4823 ¶¶ 39–40 (2002). In its
2002 Cable Broadband Order, the Commission acknowledged
that when providing the information service component of
broadband—which, according to the Commission, consisted
of several distinct applications, including email and online
newsgroups, id. at 4822–23 ¶ 38—cable broadband providers
transmit information and thus use telecommunications. In the
Commission’s view, however, the transmission functioned as
a component of a “single, integrated information service,”
rather than as a standalone offering. Id. at 4823 ¶ 38. The
Commission therefore classified them together as an
information service. Id. at 4822–23 ¶¶ 38–40.
14
The Supreme Court upheld the Commission’s
classification of cable modem service in National Cable &
Telecommunications Ass’n v. Brand X Internet Services, 545
U.S. 967, 986 (2005). Applying the principles of statutory
interpretation established in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), the
Court explained that the key statutory term “offering” in the
definition of “telecommunications service” is ambiguous.
Brand X, 545 U.S. at 989. What a company offers, the Court
reasoned, can refer to either the “single, finished product” or
the product’s individual components. Id. at 991. According
to the Court, resolving that question in the context of
broadband service requires the Commission to determine
whether the information service and the telecommunications
components “are functionally integrated . . . or functionally
separate.” Id. That question “turns not on the language of
[the Communications Act], but on the factual particulars of
how Internet technology works and how it is provided,
questions Chevron leaves to the Commission to resolve in the
first instance.” Id. Examining the classification at Chevron’s
second step—reasonableness—the Court deferred to the
Commission’s finding that “the high-speed transmission used
to provide [the information service] is a functionally
integrated component of that service,” id. at 998, and upheld
the order, id. at 1003. Three Justices dissented, arguing that
cable broadband providers offered telecommunications in the
form of the “physical connection” between their computers
and end users’ computers. See id. at 1009 (Scalia, J.,
dissenting).

Following Brand X, the Commission classified other
types of broadband service, such as DSL and mobile
broadband service, as integrated offerings of information
services without a standalone offering of telecommunications.
See, e.g., In re Appropriate Regulatory Treatment for
15
Broadband Access to the Internet over Wireless Networks
(“2007 Wireless Order”), 22 FCC Rcd. 5901, 5901–02 ¶ 1
(2007) (mobile broadband); In re Appropriate Framework for
Broadband Access to the Internet over Wireline Facilities
(“2005 Wireline Broadband Order”), 20 FCC Rcd. 14,853,
14,863–64 ¶ 14 (2005) (DSL).

B.
Although the Commission’s classification decisions
spared broadband providers from Title II common carrier
obligations, the Commission made clear that it would
nonetheless seek to preserve principles of internet openness.
In the 2005 Wireline Broadband Order, which classified DSL
as an integrated information service, the Commission
announced that should it “see evidence that providers of
telecommunications for Internet access or IP-enabled services
are violating these principles,” it would “not hesitate to take
action to address that conduct.” 2005 Wireline Broadband
Order, 20 FCC Rcd. at 14,904 ¶ 96. Simultaneously, the
Commission issued a policy statement signaling its intention
to “preserve and promote the open and interconnected nature
of the public Internet.” In re Appropriate Framework for
Broadband Access to the Internet over Wireline Facilities, 20
FCC Rcd. 14,986, 14,988 ¶ 4 (2005).

In 2007, the Commission found reason to act when
Comcast customers accused the company of interfering with
their ability to access certain applications. Comcast, 600 F.3d
at 644. Because Comcast voluntarily adopted new practices
to address the customers’ concerns, the Commission “simply
ordered [Comcast] to make a set of disclosures describing the
details of its new approach and the company’s progress
toward implementing it.” Id. at 645. As authority for that
order, the Commission cited its section 4(i) “ancillary
jurisdiction.” 47 U.S.C. § 154(i) (“The Commission may
16
perform any and all acts, make such rules and regulations, and
issue such orders, not inconsistent with this chapter, as may
be necessary in the execution of its functions.”); In re Formal
Complaint of Free Press and Public Knowledge Against
Comcast Corp. for Secretly Degrading Peer-to-Peer
Applications, 23 FCC Rcd. 13,028, 13,034–41 ¶¶ 14–22
(2008). In Comcast, we vacated that order because the
Commission had failed to identify any grant of statutory
authority to which the order was reasonably ancillary. 600
F.3d at 644.

C.
Following Comcast, the Commission issued a notice of
inquiry, seeking comment on whether it should reclassify
broadband as a telecommunications service. See In re
Framework for Broadband Internet Service, 25 FCC Rcd.
7866, 7867 ¶ 2 (2010). Rather than reclassify broadband,
however, the Commission adopted the 2010 Open Internet
Order. See 25 FCC Rcd. 17,905. In that order, the
Commission promulgated three rules: (1) a transparency rule,
which required broadband providers to “disclose the network
management practices, performance characteristics, and terms
and conditions of their broadband services”; (2) an anti-
blocking rule, which prohibited broadband providers from
“block[ing] lawful content, applications, services, or non-
harmful devices”; and (3) an anti-discrimination rule, which
established that broadband providers “may not unreasonably
discriminate in transmitting lawful network traffic.” Id. at
17,906 ¶ 1. The transparency rule applied to both “fixed”
broadband, the service a consumer uses on her laptop when
she is at home, and “mobile” broadband, the service a
consumer uses on her iPhone when she is riding the bus to
work. Id. The anti-blocking rule applied in full only to fixed
broadband, but the order prohibited mobile broadband
providers from “block[ing] lawful websites, or block[ing]
17
applications that compete with their voice or video telephony
services.” Id. The anti-discrimination rule applied only to
fixed broadband. Id. According to the Commission, mobile
broadband warranted different treatment because, among
other things, “the mobile ecosystem is experiencing very
rapid innovation and change,” id. at 17,956 ¶ 94, and “most
consumers have more choices for mobile broadband than for
fixed,” id. at 17,957 ¶ 95. In support of its rules, the
Commission relied primarily on section 706 of the
Telecommunications Act, which requires that the
Commission “encourage the deployment on a reasonable and
timely basis of advanced telecommunications capability to all
Americans,” 47 U.S.C. § 1302(a). 25 FCC Rcd. at 17,968–72
¶¶ 117–23.

In Verizon, we upheld the Commission’s conclusion that
section 706 provides it authority to promulgate open internet
rules. According to the Commission, such rules encourage
broadband deployment because they “preserve and facilitate
the ‘virtuous circle’ of innovation that has driven the
explosive growth of the Internet.” Verizon, 740 F.3d at 628.
Under the Commission’s “virtuous circle” theory, “Internet
openness . . . spurs investment and development by edge
providers, which leads to increased end-user demand for
broadband access, which leads to increased investment in
broadband network infrastructure and technologies, which in
turns leads to further innovation and development by edge
providers.” Id. at 634. Reviewing the record, we concluded
that the Commission’s “finding that Internet openness
fosters . . . edge-provider innovation . . . was . . . reasonable
and grounded in substantial evidence” and that the
Commission had “more than adequately supported and
explained its conclusion that edge-provider innovation leads
to the expansion and improvement of broadband
infrastructure.” Id. at 644.
18
We also determined that the Commission had
“adequately supported and explained its conclusion that,
absent rules such as those set forth in the [2010 Open Internet
Order], broadband providers represent[ed] a threat to Internet
openness and could act in ways that would ultimately inhibit
the speed and extent of future broadband deployment.” Id. at
645. For example, the Commission noted that “broadband
providers like AT & T and Time Warner have acknowledged
that online video aggregators such as Netflix and Hulu
compete directly with their own core video subscription
service,” id. (internal quotation marks omitted), and that, even
absent direct competition, “[b]roadband providers . . . have
powerful incentives to accept fees from edge providers, either
in return for excluding their competitors or for granting them
prioritized access to end users,” id. at 645–46. Importantly,
moreover, the Commission found that “broadband providers
have the technical . . . ability to impose such restrictions,”
noting that there was “little dispute that broadband providers
have the technological ability to distinguish between and
discriminate against certain types of Internet traffic.” Id. at
646. The Commission also “convincingly detailed how
broadband providers’ [gatekeeper] position in the market
gives them the economic power to restrict edge-provider
traffic and charge for the services they furnish edge
providers.” Id. Although the providers’ gatekeeper position
would have brought them little benefit if end users could have
easily switched providers, “we [saw] no basis for questioning
the Commission’s conclusion that end users [were] unlikely to
react in this fashion.” Id. The Commission
“detailed . . . thoroughly . . . the costs of switching,” and
found that “many end users may have no option to switch, or
at least face very limited options.” Id. at 647.

Finally, we explained that although some record evidence
supported Verizon’s insistence that the order would have a
19
detrimental effect on broadband deployment, other record
evidence suggested the opposite. Id. at 649. The case was
thus one where “‘the available data do[] not settle a regulatory
issue and the agency must then exercise its judgment in
moving from the facts and probabilities on the record to a
policy conclusion.’” Id. (alteration in original) (quoting
Motor Vehicle Manufacturers Ass’n v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29, 52 (1983)). The
Commission, we concluded, had “offered ‘a rational
connection between the facts found and the choice made.’”
Id. (quoting State Farm, 463 U.S. at 52).

We nonetheless vacated the anti-blocking and anti-
discrimination rules because they unlawfully subjected
broadband providers to per se common carrier treatment. Id.
at 655, 658–59. As we explained, the Communications Act
provides that “[a] telecommunications carrier shall be treated
as a common carrier . . . only to the extent that it is engaged in
providing telecommunications services.” Id. at 650 (quoting
47 U.S.C. § 153(51)). The Commission, however, had
classified broadband not as a telecommunications service, but
rather as an information service, exempt from common carrier
regulation. Id. Because the anti-blocking and anti-
discrimination rules required broadband providers to offer
service indiscriminately—the common law test for a per se
common carrier obligation—they ran afoul of the
Communications Act. See id. at 651–52, 655, 658–59. We
upheld the transparency rule, however, because it imposed no
per se common carrier obligations on broadband providers.
Id. at 659.

D.
A few months after our decision in Verizon, the
Commission issued a notice of proposed rulemaking to “find
the best approach to protecting and promoting Internet
20
openness.” In re Protecting and Promoting the Open Internet
(“NPRM”), 29 FCC Rcd. 5561, 5563 ¶ 4 (2014). After
receiving nearly four million comments, the Commission
promulgated the order at issue in this case, the 2015 Open
Internet Order. 30 FCC Rcd. at 5624 ¶ 74.

The Order consists of three components. First, the
Commission reclassified both fixed and mobile “broadband
Internet access service” as telecommunications services. Id.
at 5743–44 ¶ 331. For purposes of the Order, the
Commission defined “broadband Internet access service” as
“a mass-market retail service by wire or radio that provides
the capability to transmit data to and receive data from all or
substantially all Internet endpoints, including any capabilities
that are incidental to and enable the operation of the
communications service, but excluding dial-up Internet access
service.” Id. at 5745–46 ¶ 336 (footnote omitted). Because
the Commission concluded that the telecommunications
service offered to end users necessarily includes the
arrangements that broadband providers make with other
networks to exchange traffic—commonly referred to as
“interconnection arrangements”—the Commission
determined that Title II would apply to those arrangements as
well. Id. at 5686 ¶ 195. The Commission also reclassified
mobile broadband service, which it had previously deemed a
“private mobile service,” exempt from common carrier
regulation, as a “commercial mobile service,” subject to such
regulation. Id. at 5778 ¶ 388.

In the Order’s second component, the Commission
carried out its statutory mandate to forbear “from applying
any regulation or any provision” of the Communications Act
if it determines that the provision is unnecessary to ensure just
and reasonable service or protect consumers and determines
that forbearance is “consistent with the public interest.” 47
21
U.S.C. § 160(a). Specifically, the Commission forbore from
applying certain Title II provisions to broadband service,
including section 251’s mandatory unbundling requirements.
2015 Open Internet Order, 30 FCC Rcd. at 5804–05 ¶ 434,
5849–51 ¶ 513.

In the third portion of the Order, the Commission
promulgated five open internet rules, which it applied to both
fixed and mobile broadband service. The first three of the
Commission’s rules, which it called “bright-line rules,” ban
blocking, throttling, and paid prioritization. Id. at 5647 ¶ 110.
The anti-blocking and anti-throttling rules prohibit broadband
providers from blocking “lawful content, applications,
services, or non-harmful devices” or throttling—degrading or
impairing—access to the same. Id. at 5648 ¶ 112, 5651 ¶ 119.
The anti-paid-prioritization rule bars broadband providers
from “favor[ing] some traffic over other traffic . . . either (a)
in exchange for consideration (monetary or otherwise) from a
third party, or (b) to benefit an affiliated entity.” Id. at 5653
¶ 125. The fourth rule, known as the “General Conduct
Rule,” prohibits broadband providers from “unreasonably
interfer[ing] with or unreasonably disadvantag[ing] (i) end
users’ ability to select, access, and use broadband Internet
access service or the lawful Internet content, applications,
services, or devices of their choice, or (ii) edge providers’
ability to make lawful content, applications, services, or
devices available to end users.” Id. at 5660 ¶ 136. The
Commission set forth a nonexhaustive list of factors to guide
its application of the General Conduct Rule, which we discuss
at greater length below. See id. at 5661–64 ¶¶ 138–45.
Finally, the Commission adopted an enhanced transparency
rule, which builds upon the transparency rule that it
promulgated in its 2010 Open Internet Order and that we
sustained in Verizon. Id. at 5669–82 ¶¶ 154–85.
22
Several groups of petitioners now challenge the Order:
US Telecom Association, an association of service providers,
along with several other providers and associations; Full
Service Network, a service provider, joined by other such
providers; and Alamo Broadband Inc., a service provider,
joined by an edge provider, Daniel Berninger. TechFreedom,
a think tank devoted to technology issues, along with a
service provider and several individual investors and
entrepreneurs, has intervened on the side of petitioners US
Telecom and Alamo. Cogent, a service provider, joined by
several edge providers, users, and organizations, has
intervened on the side of the Commission.

In part II, we address petitioners’ arguments that the
Commission has no statutory authority to reclassify
broadband as a telecommunications service and that, even if it
possesses such authority, it acted arbitrarily and capriciously.
In part III, we address challenges to the Commission’s
regulation of interconnection arrangements under Title II. In
part IV, we consider arguments that the Commission lacks
statutory authority to classify mobile broadband service as a
“commercial mobile service” and that, in any event, its
decision to do so was arbitrary and capricious. In part V, we
assess the contention that the Commission impermissibly
forbore from certain provisions of Title II. In part VI, we
consider challenges to the open internet rules. And finally, in
part VII, we evaluate the claim that some of the open internet
rules run afoul of the First Amendment.

Before addressing these issues, we think it important to
emphasize two fundamental principles governing our
responsibility as a reviewing court. First, our “role in
reviewing agency regulations . . . is a limited one.” Ass’n of
American Railroads v. Interstate Commerce Commission, 978
F.2d 737, 740 (D.C. Cir. 1992). Our job is to ensure that an
23
agency has acted “within the limits of [Congress’s]
delegation” of authority, Chevron, 467 U.S. at 865, and that
its action is not “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law,” 5 U.S.C. §
706(2)(A). Critically, we do not “inquire as to whether the
agency’s decision is wise as a policy matter; indeed, we are
forbidden from substituting our judgment for that of the
agency.” Ass’n of American Railroads, 978 F.2d at 740
(alteration and internal quotation marks omitted). Nor do we
inquire whether “some or many economists would disapprove
of the [agency’s] approach” because “we do not sit as a panel
of referees on a professional economics journal, but as a panel
of generalist judges obliged to defer to a reasonable judgment
by an agency acting pursuant to congressionally delegated
authority.” City of Los Angeles v. U.S. Department of
Transportation, 165 F.3d 972, 978 (D.C. Cir. 1999). Second,
we “sit to resolve only legal questions presented and argued
by the parties.” In re Cheney, 334 F.3d 1096, 1108 (D.C. Cir.
2003), vacated and remanded on other grounds sub nom.
Cheney v. U.S. District Court for the District of Columbia,
542 U.S. 367 (2004); see also, e.g., United Parcel Service,
Inc. v. Mitchell, 451 U.S. 56, 61 n.2 (1981) (“We decline to
consider this argument since it was not raised by either of the
parties here or below.”). “It is not our duty” to consider
“novel arguments a [party] could have made but did not.”
United States v. Laureys, 653 F.3d 27, 32 (D.C. Cir. 2011).
“The premise of our adversarial system is that appellate courts
do not sit as self-directed boards of legal inquiry and research,
but essentially as arbiters of legal questions presented and
argued by the parties before them.” Carducci v. Regan, 714
F.2d 171, 177 (D.C. Cir. 1983). Departing from this rule
would “deprive us in substantial measure of that assistance of
counsel which the system assumes—a deficiency that we can
perhaps supply by other means, but not without altering the
character of our institution.” Id. With these two critical
24
principles in mind, we turn to the first issue in this case—the
Commission’s reclassification of broadband as a
“telecommunications service.”

II.
In the Open Internet Order, the Commission determined
that broadband service satisfies the statutory definition of a
telecommunications service: “the offering of
telecommunications for a fee directly to the public.” 47
U.S.C. § 153(53). In accordance with Brand X, the
Commission arrived at this conclusion by examining
consumer perception of what broadband providers offer.
2015 Open Internet Order, 30 FCC Rcd. at 5750 ¶ 342. In
Brand X, the Supreme Court held that it was “consistent with
the statute’s terms” for the Commission to take into account
“the end user’s perspective” in classifying a service as
“information” or “telecommunications.” 545 U.S. at 993.
Specifically, the Court held that the Commission had
reasonably concluded that a provider supplies a
telecommunications service when it makes a “‘stand-alone’
offering of telecommunications, i.e., an offered service that,
from the user’s perspective, transmits messages unadulterated
by computer processing.” Id. at 989. In the Order, the
Commission concluded that consumers perceive broadband
service both as a standalone offering and as providing
telecommunications. See 2015 Open Internet Order, 30 FCC
Rcd. at 5765 ¶ 365. These conclusions about consumer
perception find extensive support in the record and together
justify the Commission’s decision to reclassify broadband as a
telecommunications service.

With respect to its first conclusion—that consumers
perceive broadband as a standalone offering—the
Commission explained that broadband providers offer two
separate types of services: “a broadband Internet access
25
service,” id. at 5750 ¶ 341, which provides “the ability to
transmit data to and from Internet endpoints,” id. at 5755
¶ 350; and “‘add-on’ applications, content, and services that
are generally information services,” id. at 5750 ¶ 341, such as
email and cloud-based storage programs, id. at 5773 ¶ 376. It
found that from the consumer’s perspective, “broadband
Internet access service is today sufficiently independent of
these information services that it is a separate offering.” Id. at
5757–58 ¶ 356.

In support of its conclusion, the Commission pointed to
record evidence demonstrating that consumers use broadband
principally to access third-party content, not email and other
add-on applications. “As more American households have
gained access to broadband Internet access service,” the
Commission explained, “the market for Internet-based
services provided by parties other than broadband Internet
access providers has flourished.” Id. at 5753 ¶ 347. Indeed,
from 2003 to 2015, the number of websites increased from
“approximately 36 million” to “an estimated 900 million.” Id.
By one estimate, two edge providers, Netflix and YouTube,
“account for 50 percent of peak Internet download traffic in
North America.” Id. at 5754 ¶ 349.

That consumers focus on transmission to the exclusion of
add-on applications is hardly controversial. Even the most
limited examination of contemporary broadband usage reveals
that consumers rely on the service primarily to access third-
party content. The “typical consumer” purchases broadband
to use “third-party apps such as Facebook, Netflix, YouTube,
Twitter, or MLB.tv, or . . . to access any of thousands of
websites.” Computer & Communications Industry
Association Amicus Br. 7. As one amicus succinctly
explains, consumers today “pay telecommunications
providers for access to the Internet, and access is exactly what
26
they get. For content, they turn to [the] creative efforts . . . of
others.” Automattic Amicus Br. 1.

Indeed, given the tremendous impact third-party internet
content has had on our society, it would be hard to deny its
dominance in the broadband experience. Over the past two
decades, this content has transformed nearly every aspect of
our lives, from profound actions like choosing a leader,
building a career, and falling in love to more quotidian ones
like hailing a cab and watching a movie. The same assuredly
cannot be said for broadband providers’ own add-on
applications.

The Commission found, moreover, that broadband
consumers not only focus on the offering of transmission but
often avoid using the broadband providers’ add-on services
altogether, choosing instead “to use their high-speed Internet
connections to take advantage of competing services offered
by third parties.” 2015 Open Internet Order, 30 FCC Rcd. at
5753 ¶ 347. For instance, two third-party email services,
Gmail and Yahoo! Mail, were “among the ten Internet sites
most frequently visited during the week of January 17, 2015,
with approximately 400 million and 350 million visits
respectively.” Id. at 5753 ¶ 348. Some “even advise
consumers specifically not to use a broadband provider-based
email address[] because a consumer cannot take that email
address with them if he or she switches providers.” Id.

Amici Members of Congress in Support of Respondents
provide many more examples of third-party content that
consumers use in lieu of broadband provider content,
examples that will be abundantly familiar to most internet
users. “[M]any consumers,” they note, “have spurned the
applications . . . offered by their broadband Internet access
service provider, in favor of services and applications offered
27
by third parties, such as . . . news and related content on
nytimes.com or washingtonpost.com or Google News; home
pages on Microsoft’s MSN or Yahoo!’s ‘my.yahoo’; video
content on Netflix or YouTube or Hulu; streaming music on
Spotify or Pandora or Apple Music; and on-line shopping on
Amazon.com or Target.com, as well as many others in each
category.” Members of Congress for Resp’ts Amicus Br. 22.

In support of its second conclusion—that from the user’s
point of view, the standalone offering of broadband service
provides telecommunications—the Commission explained
that “[u]sers rely on broadband Internet access service to
transmit ‘information of the user’s choosing,’ ‘between or
among points specified by the user,’” without changing the
form or content of that information. 2015 Open Internet
Order, 30 FCC Rcd. at 5761 ¶ 361 (quoting 47 U.S.C.
§ 153(50)); see also id. at 5762–63 ¶ 362. The Commission
grounded that determination in record evidence that
“broadband Internet access service is marketed today
primarily as a conduit for the transmission of data across the
Internet.” Id. at 5757 ¶ 354. Specifically, broadband
providers focus their advertising on the speed of transmission.
For example, the Commission quoted a Comcast ad offering
“the consistently fast speeds you need, even during peak
hours”; an RCN ad promising the ability “to upload and
download in a flash”; and a Verizon ad claiming that
“[w]hatever your life demands, there’s a Verizon FiOS plan
with the perfect upload/download speed for you.” Id. at 5755
¶ 351 (alteration in original) (internal quotation marks
omitted). The Commission further observed that “fixed
broadband providers use transmission speeds to classify tiers
of service offerings and to distinguish their offerings from
those of competitors.” Id.
28
Those advertisements, moreover, “link higher
transmission speeds and service reliability with enhanced
access to the Internet at large—to any ‘points’ a user may
wish to reach.” Id. at 5756 ¶ 352. For example, RCN brags
that its service is “ideal for watching Netflix,” and Verizon
touts its service as “work[ing] well for uploading and sharing
videos on YouTube.” Id. Based on the providers’ emphasis
on how useful their services are for accessing third-party
content, the Commission found that end users view broadband
service as a mechanism to transmit data of their own choosing
to their desired destination—i.e., as a telecommunications
service.

In concluding that broadband qualifies as a
telecommunications service, the Commission explained that
although broadband often relies on certain information
services to transmit content to end users, these services “do
not turn broadband Internet access service into a functionally
integrated information service” because “they fall within the
telecommunications system management exception.” Id. at
5765 ¶ 365. The Commission focused on two such services.
The first, DNS, routes end users who input the name of a
website to its numerical IP address, allowing users to reach
the website without having to remember its multidigit
address. Id. at 5766 ¶ 366. The second, caching, refers to the
process of storing copies of web content at network locations
closer to users so that they can access it more quickly. Id. at
5770 ¶ 372. The Commission found that DNS and caching fit
within the statute’s telecommunications management
exception because both services are “simply used to facilitate
the transmission of information so that users can access other
services.” Id.

Petitioners assert numerous challenges to the
Commission’s decision to reclassify broadband. Finding that
29
none has merit, we uphold the classification. Significantly,
although our colleague believes that the Commission acted
arbitrarily and capriciously when it reclassified broadband, he
agrees that the Commission has statutory authority to classify
broadband as a telecommunications service. Concurring &
Dissenting Op. at 10.

A.
Before addressing petitioners’ substantive challenges to
the Commission’s reclassification of broadband service, we
must consider two procedural arguments, both offered by US
Telecom.

First, US Telecom asserts that the Commission violated
section 553 of the Administrative Procedure Act, which
requires that an NPRM “include . . . either the terms or
substance of the proposed rule or a description of the subjects
and issues involved.” 5 U.S.C. § 553(b)(3). According to US
Telecom, the Commission violated this requirement because
the NPRM proposed relying on section 706, not Title II; never
explained that the Commission would justify reclassification
based on consumer perception; and failed to signal that it
would rely on the telecommunications management
exception.

Under the APA, an NPRM must “provide sufficient
factual detail and rationale for the rule to permit interested
parties to comment meaningfully.” Honeywell International,
Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004) (internal
quotation marks omitted). The final rule, however, “need not
be the one proposed in the NPRM.” Agape Church, Inc. v.
FCC, 738 F.3d 397, 411 (D.C. Cir. 2013). Instead, it “need
only be a ‘logical outgrowth’ of its notice.” Covad
Communications Co. v. FCC, 450 F.3d 528, 548 (D.C. Cir.
2006). An NPRM satisfies the logical outgrowth test if it
30
“expressly ask[s] for comments on a particular issue or
otherwise ma[kes] clear that the agency [is] contemplating a
particular change.” CSX Transportation, Inc. v. Surface
Transportation Board, 584 F.3d 1076, 1081 (D.C. Cir. 2009).

The Commission’s NPRM satisfied this standard.
Although the NPRM did say that the Commission was
considering relying on section 706, it also “expressly asked
for comments” on whether the Commission should reclassify
broadband: “[w]e seek comment on whether the Commission
should rely on its authority under Title II of the
Communications Act, including . . . whether we should revisit
the Commission’s classification of broadband Internet access
service as an information service . . . .” NPRM, 29 FCC Rcd.
at 5612 ¶ 148 (footnote omitted).

US Telecom’s second complaint—that the NPRM failed
to provide a meaningful opportunity to comment on the
Commission’s reliance on consumer perception—is equally
without merit. In Brand X, the Supreme Court explained that
classification under the Communications Act turns on “what
the consumer perceives to be the . . . finished product.” 545
U.S. at 990. Given this, and given that the NPRM expressly
stated that the Commission was considering reclassifying
broadband as a telecommunications service, interested parties
could “comment meaningfully” on the possibility that the
Commission would follow Brand X and look to consumer
perception.

Brand X also provides the answer to US Telecom’s
complaint about the telecommunications management
exception. In Brand X, the Court made clear that to reclassify
broadband as a telecommunications service, the Commission
would need to conclude that the telecommunications
component of broadband was “functionally separate” from the
31
information services component. Id. at 991. Moreover, the
dissent expressly noted that the Commission could reach this
conclusion in part by determining that certain information
services fit within the telecommunications management
exception. “[The] exception,” the dissent explained, “would
seem to apply to [DNS and caching]. DNS, in particular, is
scarcely more than routing information . . . .” Id. at 1012–13
(Scalia, J., dissenting). As they could with consumer
perception, therefore, interested parties could “comment
meaningfully” on the Commission’s use of the
telecommunications management exception.

US Telecom next argues that the Commission violated
the Regulatory Flexibility Act by failing to conduct an
adequate Final Regulatory Flexibility Analysis regarding the
effects of reclassification on small businesses. See 5 U.S.C.
§ 604(a). We lack jurisdiction to entertain this argument.
Under the Communications Act, for a party to challenge an
order based “on questions of fact or law upon which the
Commission . . . has been afforded no opportunity to pass,” a
party must “petition for reconsideration.” 47 U.S.C. § 405(a).
Because the Commission included its Final Regulatory
Flexibility Analysis in the Order, US Telecom had to file a
petition for reconsideration if it wished to object to the
analysis. US Telecom failed to do so.

B.
This brings us to petitioners’ substantive challenges to
reclassification. Specifically, they argue that the Commission
lacks statutory authority to reclassify broadband as a
telecommunications service. They also argue that, even if it
has such authority, the Commission failed to adequately
explain why it reclassified broadband from an information
service to a telecommunications service. Finally, they
contend that the Commission had to determine that broadband
32
providers were common carriers under this court’s NARUC
test in order to reclassify.

1.
In addressing petitioners’ first argument, we follow the
Supreme Court’s decision in Brand X and apply Chevron’s
two-step analysis. Brand X, 545 U.S. at 981 (“[W]e apply the
Chevron framework to the Commission’s interpretation of the
Communications Act.”). At Chevron step one, we ask
“whether Congress has directly spoken to the precise question
at issue.” Chevron, 467 U.S. at 842. Where “the intent of
Congress is clear, that is the end of the matter; for [we], as
well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842–43. But if “the
statute is silent or ambiguous with respect to the specific
issue,” we proceed to Chevron step two, where “the question
for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843.
As part of its challenge to the Commission’s
reclassification, US Telecom argues that broadband is
unambiguously an information service, which would bar the
Commission from classifying it as a telecommunications
service. The Commission maintains, however, that Brand X
established that the Communications Act is ambiguous with
respect to the proper classification of broadband. As the
Commission points out, the Court explained that whether a
carrier provides a “telecommunications service” depends on
whether it makes an “offering” of telecommunications.
Brand X, 545 U.S. at 989; see also 47 U.S.C. § 153(53) (“The
term ‘telecommunications service’ means the offering of
telecommunications for a fee directly to the public . . . .”
(emphasis added)). The term “offering,” the Court held, is
ambiguous. Brand X, 545 U.S. at 989.
33
Seeking to escape Brand X, US Telecom argues that the
Court held only that the Commission could classify as a
telecommunications service the “last mile” of transmission,
which US Telecom defines as the span between the end user’s
computer and the broadband provider’s computer. Here,
however, the Commission classified “the entire broadband
service from the end user all the way to edge providers” as a
telecommunications service. US Telecom Pet’rs’ Br. 44.
According to US Telecom, “[t]he ambiguity addressed in
Brand X thus has no bearing here because the Order goes
beyond the scope of whatever ambiguity [the statute]
contains.” Id. (second alteration in original) (internal
quotation marks omitted).

We have no need to resolve this dispute because, even if
the Brand X decision was only about the last mile, the Court
focused on the nature of the functions broadband providers
offered to end users, not the length of the transmission
pathway, in holding that the “offering” was ambiguous. As
discussed earlier, the Commission adopted that approach in
the Order in concluding that the term was ambiguous as to the
classification question presented here: whether the “offering”
of broadband internet access service can be considered a
telecommunications service. In doing so, the Commission
acted in accordance with the Court’s instruction in Brand X
that the proper classification of broadband turns “on the
factual particulars of how Internet technology works and how
it is provided, questions Chevron leaves to the Commission to
resolve in the first instance.” 545 U.S. at 991.

US Telecom makes several arguments in support of its
contrary position that broadband is unambiguously an
information service. None persuades us. First, US Telecom
contends that the statute’s text makes clear that broadband
service “qualifies under each of the eight, independent parts
34
of the [information service] definition,” US Telecom Pet’rs’
Br. 30—namely, that it “offer[s] . . . a capability for
generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via
telecommunications,” 47 U.S.C. § 153(24). Accordingly, US
Telecom argues, broadband service “cannot fall within the
mutually exclusive category of telecommunications service.”
US Telecom Pet’rs’ Br. 30 (internal quotation marks and
footnote omitted). But this argument ignores that under the
statute’s definition of “information service,” such services are
provided “via telecommunications.” 47 U.S.C. § 153(24).
This, then, brings us back to the basic question: do broadband
providers make a standalone offering of telecommunications?
US Telecom’s argument fails to provide an unambiguous
answer to that question.

US Telecom next claims that 47 U.S.C. § 230, enacted as
part of the Communications Decency Act of 1996, a portion
of the Telecommunications Act, “confirms that Congress
understood Internet access to be an information service.” US
Telecom Pet’rs’ Br. 33. Section 230(b) states that “[i]t is the
policy of the United States . . . to promote the continued
development of the Internet and other interactive computer
services and other interactive media.” 47 U.S.C. § 230(b)(1).
In turn, section 230(f) defines an “interactive computer
service” “[a]s used in this section” as “any information
service, system, or access software provider that provides or
enables computer access by multiple users to a computer
server, including specifically a service or system that provides
access to the Internet.” Id. § 230(f)(2). According to US
Telecom, this definition of “interactive computer service”
makes clear that an information service “includes an Internet
access service.” US Telecom Pet’rs’ Br. 33. As the
Commission pointed out in the Order, however, it is “unlikely
that Congress would attempt to settle the regulatory status of
35
broadband Internet access services in such an oblique and
indirect manner, especially given the opportunity to do so
when it adopted the Telecommunications Act of 1996.” 30
FCC Rcd. at 5777 ¶ 386; see Whitman v. American Trucking
Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not
alter the fundamental details of a regulatory scheme in vague
terms or ancillary provisions—it does not, one might say, hide
elephants in mouseholes.”).

Finally, US Telecom argues that “[t]he statutory context
and history confirm the plain meaning of the statutory text.”
US Telecom Pet’rs’ Br. 33. According to US Telecom, while
the Computer II regime was in effect, the Commission
classified “gateway services allowing access to information
stored by third parties” as enhanced services, and Congress
incorporated that classification into the Communications Act
when it enacted the Telecommunications Act’s
information/telecommunications service dichotomy. Id. at
33–35. “Those ‘gateways,’” US Telecom insists, “involved
the same ‘functions and services associated with Internet
access.’” Id. at 34 (quoting In re Federal-State Joint Board on
Universal Service, 13 FCC Rcd. 11,501 ¶ 75 (1998)). This
argument suffers from a significant flaw: nothing in the
Telecommunications Act suggests that Congress intended to
freeze in place the Commission’s existing classifications of
various services. Indeed, such a reading of the
Telecommunications Act would conflict with the Supreme
Court’s holding in Brand X that classification of broadband
“turns . . . on the factual particulars of how Internet
technology works and how it is provided, questions Chevron
leaves to the Commission to resolve in the first instance.”
545 U.S. at 991.

Amici Members of Congress in Support of Petitioners
advance an additional argument that post-
36
Telecommunications Act legislative history “demonstrates
that Congress never delegated to the Commission” authority
to regulate broadband service as a telecommunications
service. Members of Congress for Pet’rs Amicus Br. 4. In
support, they point out that Congress has repeatedly tried and
failed to enact open internet legislation, confirming, in their
view, that the Commission lacks authority to issue open
internet rules. But as the Supreme Court has made clear,
courts do not regard Congress’s “attention” to a matter
subsequently resolved by an agency pursuant to statutory
authority as “legislative history demonstrating a congressional
construction of the meaning of the statute.” American
Trucking Ass’ns v. Atchison, Topeka, & Santa Fe Railway
Co., 387 U.S. 397, 416–17 (1967). Following this approach,
we have rejected attempts to use legislative history to cabin an
agency’s statutory authority in the manner amici propose. For
example, in Advanced Micro Devices v. Civil Aeronautics
Board, petitioners challenged the Civil Aeronautics Board’s
rules adopting a more deferential approach to the regulation
of international cargo rates. 742 F.2d 1520, 1527–28 (D.C.
Cir. 1984). Petitioners asserted that the Board had no
authority to promulgate the rules because “Congress
deliberately eschewed the course now advanced by the
[Board],” id. at 1541, when it tried and failed to enact
legislation that would have put “limits on the Board’s
ratemaking functions regarding international cargo,” id. at
1523. Rejecting petitioners’ argument, we explained that
“Congress’s failure to enact legislation . . . d[oes] not
preclude analogous rulemaking.” Id. at 1542 (citing
American Trucking Ass’ns, 387 U.S. at 416–18). In that case,
as here, the relevant question was whether the agency had
statutory authority to promulgate its regulations, and, as we
explained, “congressional inaction or congressional action
short of the enactment of positive law . . . is often entitled to
no weight” in answering that question. Id. at 1541. Amici
37
also argue that Congress’s grants to the Commission of
“narrow authority over circumscribed aspects of the Internet”
indicate that the Commission lacks “the authority it claims
here.” Members of Congress for Pet’rs Amicus Br. 9. None
of the statutes amici cite, however, have anything to do with
the sort of common carrier regulations at issue here.

Full Service Network also urges us to resolve this case at
Chevron step one, though it takes the opposite position of US
Telecom. According to Full Service Network, broadband is
unambiguously a telecommunications service because it
functions primarily as a transmission service. That argument
clearly fails in light of Brand X, which held that classification
of broadband as an information service was permissible.

Brand X also requires that we reject intervenor
TechFreedom’s argument that the reclassification issue is
controlled by the Supreme Court’s decision in FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120 (2000). In that
case, the Court held that “Congress ha[d] clearly precluded
the FDA from asserting jurisdiction to regulate tobacco
products.” Id. at 126. The Court emphasized that the FDA
had disclaimed any authority to regulate tobacco products for
more than eighty years and that Congress had repeatedly
legislated against this background. Id. at 143–59.
Furthermore, the Court observed, if the FDA did have
authority to regulate the tobacco industry, given its statutory
obligations and its factual findings regarding the harmful
effects of tobacco, the FDA would have had to ban tobacco
products, a result clearly contrary to congressional intent. See
id. at 135–43. If Congress sought to “delegate a decision of
such economic and political significance” to the agency, the
Court noted, it would have done so clearly. Id. at 160.
Relying on Brown & Williamson, TechFreedom urges us to
38
exercise “judicial skepticism of the [Commission’s] power
grab.” TechFreedom Intervenor Br. 18.

TechFreedom ignores Brand X. As explained above, the
Supreme Court expressly recognized that Congress, by
leaving a statutory ambiguity, had delegated to the
Commission the power to regulate broadband service. By
contrast, in Brown & Williamson the Court held that Congress
had “precluded” the FDA from regulating cigarettes.

This brings us, then, to petitioners’ and intervenors’
Chevron step two challenges.

First, US Telecom argues that the Commission’s
classification is unreasonable because many broadband
providers offer information services, such as email, alongside
internet access. According to US Telecom, because
broadband providers still offer such services, consumers must
perceive that those providers offer an information service.
For its part, the Commission agreed that broadband providers
offer email and other services, but simply concluded that
“broadband Internet access service is today sufficiently
independent of these information services that it is a separate
offering.” 2015 Open Internet Order, 30 FCC Rcd. at 5758
¶ 356. US Telecom nowhere challenges that conclusion, and
for good reason: the record contains extensive evidence that
consumers perceive a standalone offering of transmission,
separate from the offering of information services like email
and cloud storage. See supra at 25–27.

US Telecom next contends that the Commission’s
reclassification of broadband was unreasonable because DNS
and caching do not fall within the Communications Act’s
telecommunications management exception. As noted above,
that exception excludes from the definition of an information
service “any [service] for the management, control, or
39
operation of a telecommunications system or the management
of a telecommunications service.” 47 U.S.C. § 153(24). The
Commission found that “[w]hen offered as part of a
broadband Internet access service, caching [and] DNS [are]
simply used to facilitate the transmission of information so
that users can access other services.” 2015 Open Internet
Order, 30 FCC Rcd. at 5770 ¶ 372. Challenging this
interpretation, US Telecom argues that DNS and caching fall
outside the exception because neither “manage[s] a
telecommunications system or service,” US Telecom Pet’rs’
Br. 39, but are instead examples of the “many core
information-service functions associated with Internet
access,” id. at 37. US Telecom claims that the Commission’s
use of the telecommunications management exception was
also unreasonable because the Commission “contends that the
same functions—DNS and caching—are used for
telecommunications management when offered as part of
Internet access, but are an information service when third-
party content providers similarly offer them.” Id. at 40. We
are unpersuaded.

First, the Commission explained that the
Communications Act’s telecommunications management
exception encompasses those services that would have
qualified as “adjunct-to-basic” under the Computer II regime.
2015 Open Internet Order, 30 FCC Rcd. at 5766–67 ¶ 367
(citing Non-Accounting Safeguards Order, 11 FCC Rcd. at
21,958 ¶ 107). To qualify as an adjunct-to-basic service, a
service had to be “‘basic in purpose and use’ in the sense that
[it] facilitate[d] use of the network, and . . . [it] could ‘not
alter the fundamental character of the [telecommunications
service].’” Id. at 5767 ¶ 367 (last alteration in original)
(quoting In re North American Telecommunications Ass’n,
101 F.C.C. 2d 349, 359 ¶ 24, 360 ¶ 27 (1985)) (some internal
quotation marks omitted). The Commission concluded that
40
DNS and caching satisfy this test because both services
facilitate use of the network without altering the fundamental
character of the telecommunications service. DNS does so by
“allow[ing] more efficient use of the telecommunications
network by facilitating accurate and efficient routing from the
end user to the receiving party.” Id. at 5768 ¶ 368. Caching
qualifies because it “enabl[es] the user to obtain more rapid
retrieval of information through the network.” Id. at 5770
¶ 372 (internal quotation marks omitted). US Telecom does
not challenge the applicability of the adjunct-to-basic
standard, nor does it give us any reason to believe that the
Commission’s application of that standard was unreasonable.
See GTE Service Corp. v. FCC, 224 F.3d 768, 772 (D.C. Cir.
2000) (“[W]e will defer to the [Commission’s] interpretation
of [the Communications Act] if it is reasonable in light of the
text, the structure, and the purpose of [the Communications
Act].”).

As to US Telecom’s second point, the Commission
justified treating third-party DNS and caching services
differently on the ground that when such services are
“provided on a stand-alone basis by entities other than the
provider of Internet access service[,] . . . there would be no
telecommunications service to which [the services are]
adjunct.” 2015 Open Internet Order, 30 FCC Rcd. at 5769
¶ 370 n.1046. Again, US Telecom has given us no basis for
questioning the reasonableness of this conclusion. Once a
carrier uses a service that would ordinarily be an information
service—such as DNS or caching—to manage a
telecommunications service, that service no longer qualifies
as an information service under the Communications Act.
The same service, though, when unconnected to a
telecommunications service, remains an information service.
41
Intervenor TechFreedom makes one additional Chevron
step two argument. It contends that this case resembles
Utility Air Regulatory Group v. EPA, in which the Supreme
Court reviewed EPA regulations applying certain statutory
programs governing air pollution to greenhouse gases. 134 S.
Ct. 2427, 2437 (2014). EPA had “tailored” the programs to
greenhouse gases by using different numerical thresholds for
triggering application of the programs than those listed in the
statute because using “the statutory thresholds would [have]
radically expand[ed] those programs.” Id. at 2437–38.
Rejecting this approach, the Supreme Court held that because
the statute’s numerical thresholds were “unambiguous,” EPA
had no “authority to ‘tailor’ [them] to accommodate its
greenhouse-gas-inclusive interpretation of the permitting
triggers.” Id. at 2446. “[T]he need to rewrite clear provisions
of the statute,” the Court declared, “should have alerted EPA
that it had taken a wrong interpretive turn.” Id. According to
TechFreedom, the Commission’s need to extensively forbear
from Title II similarly reveals the “incoherence” of its
decision. TechFreedom Intervenor Br. 21.

This case is nothing like Utility Air. Far from rewriting
clear statutory language, the Commission followed an express
statutory mandate requiring it to “forbear from applying any
regulation or any provision” of the Communications Act if
certain criteria are met. 47 U.S.C. § 160(a). Nothing in the
Clean Air Act gave EPA any comparable authority.
Accordingly, the Commission’s extensive forbearance does
not suggest that the Order is unreasonable.

2.
We next consider US Telecom’s argument that the
Commission failed to adequately explain why, having long
classified broadband as an information service, it chose to
reclassify it as a telecommunications service. Under the
42
APA, we must “determine whether the Commission’s actions
were ‘arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.’” Verizon, 740 F.3d at
635 (quoting 5 U.S.C. § 706(2)(A)). As noted at the outset of
our opinion, “[o]ur role in this regard is a limited one, and we
will not substitute our judgment for that of the agency.”
EarthLink, Inc. v. FCC, 462 F.3d 1, 9 (D.C. Cir. 2006).
Provided that the Commission has “articulate[d] . . . a
‘rational connection between the facts found and the choice
made,’” we will uphold its decision. Verizon, 740 F.3d at
643–44 (alteration in original) (quoting State Farm, 463 U.S.
at 52) (some internal quotation marks omitted); see also
FERC v. Electric Power Supply Ass’n, 136 S. Ct. 760, 784
(2016) (“Our important but limited role is to ensure that [the
agency] engaged in reasoned decisionmaking—that it
weighed competing views, selected [an approach] with
adequate support in the record, and intelligibly explained the
reasons for making that choice.”).

As relevant here, “[t]he APA’s requirement of reasoned
decision-making ordinarily demands that an agency
acknowledge and explain the reasons for a changed
interpretation.” Verizon, 740 F.3d at 636. “An agency may
not, for example, depart from a prior policy sub silentio or
simply disregard rules that are still on the books.” FCC v.
Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). That
said, although the agency “must show that there are good
reasons for the new policy[,] . . . it need not demonstrate to a
court’s satisfaction that the reasons for the new policy are
better than the reasons for the old one.” Id.

US Telecom contends that the Commission lacked good
reasons for reclassifying broadband because “as Verizon made
clear, and as the [Commission] originally recognized, it could
have adopted appropriate Open Internet rules based upon
43
§ 706 without reclassifying broadband.” US Telecom Pet’rs’
Br. 54 (internal citations omitted). But the Commission did
not believe it could do so. Specifically, the Commission
found it necessary to establish three bright-line rules, the anti-
blocking, anti-throttling, and anti-paid-prioritization rules,
2015 Open Internet Order, 30 FCC Rcd. at 5607 ¶ 14, all of
which impose per se common carrier obligations by requiring
broadband providers to offer indiscriminate service to edge
providers, see Verizon, 740 F.3d at 651–52. “[I]n light of
Verizon,” the Commission explained, “absent a classification
of broadband providers as providing a ‘telecommunications
service,’ the Commission could only rely on section 706 to
put in place open Internet protections that steered clear of
regulating broadband providers as common carriers per se.”
2015 Open Internet Order, 30 FCC Rcd. at 5614 ¶ 42. This,
in our view, represents a perfectly “good reason” for the
Commission’s change in position.

Raising an additional argument, US Telecom asserts that
reclassification “will undermine” investment in broadband.
US Telecom Pet’rs’ Br. 54. The partial dissent agrees,
pointing specifically to 47 U.S.C. § 207, which subjects Title
II common carriers to private complaints. Concurring &
Dissenting Op. at 24. The Commission, however, reached a
different conclusion with respect to reclassification’s impact
on broadband investment. It found that “Internet traffic is
expected to grow substantially in the coming years,” driving
investment, 2015 Open Internet Order, 30 FCC Rcd. at 5792
¶ 412; that Title II regulation had not stifled investment when
applied in other circumstances, id. at 5793–94 ¶ 414; and that
“major infrastructure providers have indicated that they will
in fact continue to invest under the [Title II] framework,” id.
at 5795 ¶ 416. In any event, the Commission found that the
virtuous cycle—spurred by the open internet rules—provides
an ample counterweight, in that any harmful effects on
44
broadband investment “are far outweighed by positive effects
on innovation and investment in other areas of the ecosystem
that [its] core broadband polices will promote.” Id. at 5791 ¶
410. In reviewing these conclusions, we ask not whether they
“are correct or are the ones that we would reach on our own,
but only whether they are reasonable.” EarthLink, 462 F.3d
at 12 (internal quotation marks omitted). Moreover, “[a]n
agency’s predictive judgments about areas that are within the
agency’s field of discretion and expertise are entitled to
particularly deferential review, as long as they are
reasonable.” Id. (internal quotation marks omitted). The
Commission has satisfied this highly deferential standard. As
to section 207, the Commission explained that “[a]lthough [it]
appreciate[d] carriers’ concerns that [its] reclassification
decision could create investment-chilling regulatory burdens
and uncertainty, [it] believe[d] that any effects are likely to be
short term and will dissipate over time as the marketplace
internalizes [the] Title II approach.” 2015 Open Internet
Order, 30 FCC Rcd. at 5791 ¶ 410. This too is precisely the
kind of “predictive judgment[] . . . within the agency’s field of
discretion and expertise” that we do not second guess.

In a related argument, the partial dissent contends that the
Commission lacked “good reasons” for reclassifying because
its rules, particularly the General Conduct Rule, will decrease
future investment in broadband by increasing regulatory
uncertainty. Although US Telecom asserts in the introduction
to its brief that the rules “will undermine future investment by
large and small broadband providers,” US Telecom Pet’rs’ Br.
4, it provides no further elaboration on this point and never
challenges reclassification on the ground that the rules will
harm broadband investment. As we have said before, “[i]t is
not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel’s work.” New
York Rehabilitation Care Management, LLC v. NLRB, 506
45
F.3d 1070, 1076 (D.C. Cir. 2007) (internal quotation marks
omitted). Given that no party adequately raised this
argument, we decline to consider it. See In re Cheney, 334
F.3d at 1108 (Reviewing courts “sit to resolve only legal
questions presented and argued by the parties.”).

Finally, the partial dissent disagrees with our conclusion
that the Commission had “good reasons” to reclassify
because, according to the partial dissent, it failed to make “a
finding of market power or at least a consideration of
competitive conditions.” Concurring & Dissenting Op. at 10.
But nothing in the statute requires the Commission to make
such a finding. Under the Act, a service qualifies as a
“telecommunications service” as long as it constitutes an
“offering of telecommunications for a fee directly to the
public.” 47 U.S.C. § 153(53). As explained above, supra at
24, when interpreting this provision in Brand X, the Supreme
Court held that classification of broadband turns on consumer
perception, see 545 U.S. at 990 (explaining that classification
depends on what “the consumer perceives to be the integrated
finished product”). Nothing in Brand X suggests that an
examination of market power or competition in the market is
a prerequisite to classifying broadband. True, as the partial
dissent notes, the Supreme Court cited the Commission’s
findings regarding the level of competition in the market for
cable broadband as further support for the agency’s decision
to classify cable broadband as an information service. See id.
at 1001 (describing the Commission’s conclusion that market
conditions supported taking a deregulatory approach to cable
broadband service). But citing the Commission’s economic
findings as additional support for its approach is a far cry
from requiring the Commission to find market power. The
partial dissent also cites several Commission decisions in
support of the proposition that the Commission has “for
nearly four decades made the presence or prospect of
46
competition the touchstone for refusal to apply Title II.”
Concurring & Dissenting Op. at 12. All of those cases,
however, predate the 1996 Telecommunications Act, which
established the statutory test that Brand X considered and that
we apply here.

US Telecom raises a distinct arbitrary and capricious
argument. It contends that the Commission needed to satisfy
a heightened standard for justifying its reclassification. As
US Telecom points out, the Supreme Court has held that “the
APA requires an agency to provide more substantial
justification when ‘its new policy rests upon factual findings
that contradict those which underlay its prior policy; or when
its prior policy has engendered serious reliance interests that
must be taken into account.’” Perez v. Mortgage Bankers
Ass’n, 135 S. Ct. 1199, 1209 (2015) (quoting Fox Television,
556 U.S. at 515). “[I]t is not that further justification is
demanded by the mere fact of policy change[,] but that a
reasoned explanation is needed for disregarding facts and
circumstances that underlay or were engendered by the prior
policy.” Fox Television, 556 U.S. at 515–16. Put another
way, “[i]t would be arbitrary and capricious to ignore such
matters.” Id. at 515.

US Telecom believes that the Commission failed to
satisfy the heightened standard because it departed from
factual findings it made regarding consumer perception in its
2002 Cable Broadband Order without pointing to any changes
in how consumers actually view broadband. According to US
Telecom, even in 2002, when the Commission classified
broadband as an information service, consumers used
broadband primarily as a means to access third-party content
and broadband providers marketed their services based on
speed. As we have explained, however, although in 2002 the
Commission found that consumers perceived an integrated
47
offering of an information service, in the present order the
Commission cited ample record evidence supporting its
current view that consumers perceive a standalone offering of
transmission. See supra at 25–27. It thus satisfied the APA’s
requirement that an agency provide a “reasoned
explanation . . . for disregarding facts and circumstances that
underlay . . . the prior policy.” Fox Television, 556 U.S. at
515–16. Nothing more is required.

Presenting an argument quite similar to US Telecom’s,
the partial dissent asserts that the Commission needed to do
more than justify its current factual findings because, in this
case, “the agency explicitly invoke[d] changed
circumstances” as a basis for reclassifying broadband.
Concurring & Dissenting Op. at 10. At least when an agency
relies on a change in circumstances, the partial dissent
reasons, “Fox requires us to examine whether there is really
anything new.” Id. at 4. But we need not decide whether
there “is really anything new” because, as the partial dissent
acknowledges, id., the Commission concluded that changed
factual circumstances were not critical to its classification
decision: “[E]ven assuming, arguendo, that the facts
regarding how [broadband service] is offered had not
changed, in now applying the Act’s definitions to these facts,
we find that the provision of [broadband service] is best
understood as a telecommunications service, as discussed
[herein] . . . and disavow our prior interpretations to the extent
they held otherwise.” 2015 Open Internet Order, 30 FCC
Rcd. at 5761 ¶ 360 n.993.

US Telecom next argues that the Commission “could not
rationally abandon its prior policy without account[ing] for
reliance interests that its prior policy engendered.” US
Telecom Pet’rs’ Br. 51 (alteration in original) (internal
quotation marks omitted). The Commission, however, did not
48
fail to “account” for reliance interests. Fox Television, 556
U.S. at 515. Quite to the contrary, it expressly considered the
claims of reliance and found that “the regulatory status of
broadband Internet access service appears to have, at most, an
indirect effect (along with many other factors) on
investment.” 2015 Open Internet Order, 30 FCC Rcd. at 5760
¶ 360. The Commission explained that “the key drivers of
investment are demand and competition,” not the form of
regulation. Id. at 5792 ¶ 412. Additionally, the Commission
noted that its past regulatory treatment of broadband likely
had a particularly small effect on investment because the
regulatory status of broadband service was settled for only a
short period of time. Id. at 5760–61 ¶ 360. As the
Commission pointed out, just five years after Brand X upheld
the Commission’s classification of broadband as an
information service, the Commission asked in a notice of
inquiry whether it should reclassify broadband as a
telecommunications service. Id. at 5760 ¶ 360.

The partial dissent finds the Commission’s explanation
insufficient and concludes that it failed “to make a serious
assessment of [broadband providers’] reliance.” Concurring
& Dissenting Op. at 8. With regard to the Commission’s
conclusion that the regulatory status of broadband had only an
indirect effect on investment, the partial dissent believes that
this explanation is an “irrelevance” because “[t]he proposition
that ‘many other factors’ affect investment is a truism” and
thus the explanation “tells us little about how much” the prior
classification “accounts for the current robust broadband
infrastructure.” Id. at 5. But the Commission did more than
simply state that the regulatory classification of broadband
was one of many relevant factors. It went on to explain why
other factors, namely, increased demand for broadband and
increased competition to provide it, were more significant
drivers of broadband investment. 2015 Open Internet Order,
49
30 FCC Rcd. at 5760 ¶ 360 & n.986; id. at 5792 ¶ 412. We
also disagree with the partial dissent’s assertion that the
Commission “misread[] the history of the classification of
broadband” when it found that the unsettled regulatory
treatment of broadband likely diminished the extent of
investors’ reliance on the prior classification. Concurring &
Dissenting Op. at 7. As explained above, supra at 13–16, the
Commission classified broadband for the first time in 1998,
when it determined that the phone lines used in DSL service
qualified as a telecommunications service. See Advanced
Services Order, 13 FCC Rcd. at 24,014 ¶ 3, 24,029–30 ¶¶ 35–
36. Then, in 2002 the Commission classified cable broadband
service as an information service, see Cable Broadband Order,
17 FCC Rcd. at 4823 ¶¶ 39–40, a classification that was
challenged and not definitively settled until 2005 when the
Supreme Court decided Brand X. Only five years later, the
Commission sought public comment on whether it should
reverse course and classify broadband as a
telecommunications service. See In re Framework for
Broadband Internet Service, 25 FCC Rcd. at 7867 ¶ 2. Given
this shifting regulatory treatment, it was not unreasonable for
the Commission to conclude that broadband’s particular
classification was less important to investors than increased
demand. Contrary to our colleague, “[w]e see no reason to
second guess these factual determinations, since the court
properly defers to policy determinations invoking the
[agency’s] expertise in evaluating complex market
conditions.” Gas Transmission Northwest Corp. v. FERC,
504 F.3d 1318, 1322 (D.C. Cir. 2007) (internal quotation
marks and alteration omitted).

3.
Finally, we consider US Telecom’s argument that the
Commission could not reclassify broadband without first
determining that broadband providers were common carriers
50
under this court’s NARUC test. See National Ass’n of
Regulatory Utility Commissioners v. FCC, 533 F.2d 601
(D.C. Cir. 1976); National Ass’n of Regulatory Utility
Commissioners v. FCC, 525 F.2d 630 (D.C. Cir. 1976).
Under that test, “a carrier has to be regulated as a common
carrier if it will make capacity available to the public
indifferently or if the public interest requires common carrier
operation.” Virgin Islands Telephone Corp. v. FCC, 198 F.3d
921, 924 (D.C. Cir. 1999) (internal quotation marks omitted).
As the Commission points out, however, this argument
ignores that the Communications Act “provides that ‘[a]
telecommunications carrier shall be treated as a common
carrier . . . to the extent that it is engaged in providing
telecommunications services,’” Resp’ts’ Br. 79 (alteration and
omission in original) (quoting 47 U.S.C. § 153(51)), and that
“[t]he Act thus authorizes—indeed, requires—broadband
providers to be treated as common carriers once they are
found to offer telecommunications service,” id. The
Communications Act in turn defines a telecommunications
service as “the offering of telecommunications for a fee
directly to the public,” 47 U.S.C. § 153(53), and the
Commission found that broadband providers satisfy this
statutory test: “[h]aving affirmatively determined that
broadband Internet access service involves
‘telecommunications,’ we also find . . . that broadband
Internet access service providers offer broadband Internet
access service ‘directly to the public.’” 2015 Open Internet
Order, 30 FCC Rcd. at 5763 ¶ 363. Other than challenging
the Commission’s interpretation of the term “offering”—an
argument which we have already rejected, see supra section
II.B.1—US Telecom never questions the Commission’s
application of the statute’s test for common carriage.
Moreover, US Telecom cites no case, nor are we aware of
one, holding that when the Commission invokes the statutory
test for common carriage, it must also apply the NARUC test.
51
III.
Having thus rejected petitioners’ arguments against
reclassification, we turn to US Telecom’s challenges to the
Commission’s regulation of interconnection arrangements—
arrangements that broadband providers make with other
networks to exchange traffic in order to ensure that their end
users can access edge provider content anywhere on the
internet. Broadband providers have such arrangements with
backbone networks, as well as with certain edge providers,
such as Netflix, that connect directly to broadband provider
networks. In the Order, the Commission found that regulation
of interconnection arrangements was necessary to ensure
broadband providers do not “use terms of interconnection to
disadvantage edge providers” or “prevent[] consumers from
reaching the services and applications of their choosing.”
2015 Open Internet Order, 30 FCC Rcd. at 5694 ¶ 205.
Several commenters, the Commission pointed out, had
emphasized “the potential for anticompetitive behavior on the
part of broadband Internet access service providers that serve
as gatekeepers to the edge providers . . . seeking to deliver
Internet traffic to the broadband providers’ end users.” Id. at
5691 ¶ 200.

As authority for regulating interconnection arrangements,
the Commission relied on Title II. “Broadband Internet
access service,” it explained, “involves the exchange of traffic
between a . . . broadband provider and connecting networks,”
since “[t]he representation to retail customers that they will be
able to reach ‘all or substantially all Internet endpoints’
necessarily includes the promise to make the interconnection
arrangements necessary to allow that access.” Id. at 5693–94
¶ 204. Because the “same data is flowing between the end
user and edge consumer,” the end user necessarily
experiences any discriminatory treatment of the edge
provider, the Commission reasoned, making interconnection
52
“simply derivative of” the service offered to end users. Id. at
5748–49 ¶ 339.

As a result, the Commission concluded that it could
regulate interconnection arrangements under Title II as a
component of broadband service. Id. at 5686 ¶ 195. It
refrained, however, from applying the General Conduct Rule
or any of the bright-line rules to interconnection arrangements
because, given that it “lack[ed] [a] background in practices
addressing Internet traffic exchange,” it would be “premature
to adopt prescriptive rules to address any problems that have
arisen or may arise.” Id. at 5692–93 ¶ 202. Rather, it
explained that interconnection disputes would be evaluated on
a case-by-case basis under sections 201, 202, and 208 of the
Communications Act. See id. at 5686–87 ¶ 195. US Telecom
presents two challenges to the Commission’s decision to
regulate interconnection arrangements under Title II, one
procedural and one substantive. We reject both.

Echoing its arguments with respect to reclassification, US
Telecom first claims that the NPRM provided inadequate
notice that the Commission would regulate interconnection
arrangements under Title II. As we noted above, an NPRM
satisfies APA notice obligations when it “expressly ask[s] for
comments on a particular issue or otherwise ma[kes] clear
that the agency [is] contemplating a particular change.” CSX
Transportation, Inc., 584 F.3d at 1081. The NPRM did just
that. It expressly asked whether the Commission should
apply its new rules—rules which it had signaled might depend
upon Title II reclassification, NPRM, 29 FCC Rcd. at 5612
¶ 148—to interconnection arrangements. The NPRM
explained that the 2010 Open Internet Order had applied only
“to a broadband provider’s use of its own network . . . but
[had] not appl[ied] . . . to the exchange of traffic between
networks.” NPRM, 29 FCC Rcd. at 5582 ¶ 59. Although the
53
Commission “tentatively conclude[d] that [it] should maintain
this approach, . . . [the NPRM sought] comment on whether
[the Commission] should change [its] conclusion.” Id.

US Telecom insists that the NPRM was nonetheless
inadequate because it nowhere suggested that the Commission
might justify regulating interconnection arrangements under
Title II on the basis that they are a component of the offering
of telecommunications to end users. Under the APA, an
NPRM provides adequate notice as long as it reveals the
“substance of the proposed rule or a description of the
subjects and issues involved.” 5 U.S.C. § 553(b)(3). An
NPRM does so if it “provide[s] sufficient factual detail and
rationale for the rule to permit interested parties to comment
meaningfully.” Honeywell International, Inc., 372 F.3d at
445 (internal quotation marks omitted). Again, the NPRM
did just that. It asked whether the Commission should expand
its reach beyond “a broadband provider’s use of its own
network” in order to “ensure that a broadband provider would
not be able to evade our open Internet rules by engaging in
traffic exchange practices.” NPRM, 29 FCC Rcd. at 5582
¶ 59. By focusing on the threat that broadband providers
might block edge provider access to end users at an earlier
point in the transmission pathway, the NPRM allowed
interested parties to comment meaningfully on the possibility
that the Commission would consider interconnection
arrangements to be part of the offering of telecommunications
to end users. Indeed, interested parties interpreted the NPRM
as presenting just that possibility. To take one example,
COMPTEL explained in its comments that “as feared by the
Commission in its [NPRM], a [broadband] provider can
simply evade the Commission’s 2010 rules by moving its
demand for an access fee upstream to the entry point to the
[broadband provider’s network].” Letter from Markham C.
Erickson, Counsel to COMPTEL, to Marlene H. Dortch,
54
FCC, GN Dkt. Nos. 14-28 & 10-127, at 10 (Feb. 19, 2015).
Because “[t]he interconnection point is simply a literal
extension of the [broadband provider’s network],”
COMPTEL explained, “applying the same open Internet rules
to the point of interconnection is a logical extension of the
2010 Open Internet Order and clearly in line with the
Commission’s . . . proposal [in the NPRM].” Id.

US Telecom next argues that our decision in Verizon
prevents the Commission from regulating interconnection
arrangements under Title II without first classifying the
arrangements as an offering of telecommunications to edge
providers and backbone networks. As US Telecom points
out, Verizon recognized that broadband, and thus
interconnection arrangements, provides a service not only to
end users but also to edge providers and backbone networks,
namely, the ability to reach the broadband provider’s users.
Verizon, 740 F.3d at 653. According to US Telecom, Verizon
therefore requires the Commission to classify this service to
edge providers and backbone networks as a
telecommunications service before it regulates
interconnection arrangements under Title II.

US Telecom misreads Verizon. Although Verizon does
recognize that broadband providers’ delivery of broadband to
end users also provides a service to edge providers, id., it does
not hold that the Commission must classify broadband as a
telecommunications service in both directions before it can
regulate the interconnection arrangements under Title II. The
problem in Verizon was not that the Commission had
misclassified the service between carriers and edge providers
but that the Commission had failed to classify broadband
service as a Title II service at all. The Commission overcame
this problem in the Order by reclassifying broadband
55
service—and the interconnection arrangements necessary to
provide it—as a telecommunications service.

IV.
We now turn to the Commission’s treatment of mobile
broadband service, i.e., high-speed internet access for mobile
devices such as smartphones and tablets. As explained above,
the Commission permissibly found that mobile broadband—
like all broadband—is a telecommunications service subject
to common carrier regulation under Title II of the
Communications Act. We address here a second set of
provisions that pertain to the treatment of mobile broadband
as common carriage.

Those provisions, found in Title III of the
Communications Act, segregate “mobile services” into two,
mutually exclusive categories: “commercial mobile services”
and “private mobile services.” 47 U.S.C. § 332(c). Providers
of commercial mobile services—mobile services that are,
among other things, available “to the public” or “a substantial
portion of the public”—are subject to common carrier
regulation. Id. § 332(c)(1), (d)(1). Providers of private
mobile services, by contrast, “shall not . . . be treated as []
common carrier[s].” Id. § 332(c)(2).

In 2007, the Commission initially classified mobile
broadband as a private mobile service. At the time, the
Commission considered mobile broadband a “nascent”
service. 2007 Wireless Order, 22 FCC Rcd. at 5922 ¶ 59. In
the 2015 Order we now review, the Commission found that,
“[i]n sharp contrast to 2007,” the “mobile broadband
marketplace has evolved such that hundreds of millions of
consumers now use mobile broadband to access the Internet.”
2015 Open Internet Order, 30 FCC Rcd. at 5785 ¶ 398. The
Commission thus concluded that “today’s mobile broadband
56
Internet access service, with hundreds of millions of
subscribers,” is not a “private” mobile service “that offer[s]
users access to a discrete and limited set of endpoints.” Id. at
5788–89 ¶ 404. Rather, “[g]iven the universal access
provided today and in the foreseeable future by and to mobile
broadband and its present and anticipated future penetration
rates in the United States,” the Commission decided to
“classify[] mobile broadband Internet access as a commercial
mobile service” subject to common carrier regulation. Id. at
5786 ¶ 399; see generally id. at 5778–88 ¶¶ 388–403.

Petitioners CTIA and AT&T (“mobile petitioners”)
challenge the Order’s reclassification of mobile broadband as
a commercial mobile service. In their view, mobile
broadband is, and must be treated as, a private mobile service,
and therefore cannot be subject to common carrier regulation.
We reject mobile petitioners’ arguments and find that the
Commission’s reclassification of mobile broadband as a
commercial mobile service is reasonable and supported by the
record.

A.
In assessing whether the Commission permissibly
reclassified mobile broadband as a commercial rather than a
private mobile service, we begin with an overview of the
governing statutory and regulatory framework and of the
Commission’s application of that framework to mobile
broadband. The statute defines “commercial mobile service”
as “any mobile service . . . that is provided for profit and
makes interconnected service available (A) to the public or
(B) to such classes of eligible users as to be effectively
available to a substantial portion of the public, as specified by
regulation by the Commission.” 47 U.S.C. § 332(d)(1). The
statute then defines “private mobile service” strictly in the
negative, i.e., as “any mobile service . . . that is not a
57
commercial mobile service or the functional equivalent of a
commercial mobile service, as specified by regulation by the
Commission.” Id. § 332(d)(3).

Because private mobile service is a residual category
defined in relation to commercial mobile service, the
definition of commercial mobile service is the operative one
for our purposes. There is no dispute that mobile broadband
meets three of the four parts of the statutory definition of
commercial mobile service. Mobile broadband is a “mobile
service”; it “is provided for profit”; and it is available “to the
public” or “a substantial portion of the public.” Id.
§ 332(d)(1). In those respects, mobile broadband bears the
hallmarks of a commercial—and hence not a private—mobile
service. The sole remaining question is whether mobile
broadband also “makes interconnected service available.” Id.

The statute defines “interconnected service” as “service
that is interconnected with the public switched network (as
such terms are defined by regulation by the Commission).”
Id. § 332(d)(2). Until the Order, the Commission in turn
defined the “public switched network” as a set of telephone
(cellular and landline) networks, with users’ ten-digit
telephone numbers making up the interconnected endpoints of
the network. Specifically, “public switched network” meant
“[a]ny common carrier switched network . . . that use[s] the
North American Numbering Plan in connection with the
provision of switched services.” 47 C.F.R. § 20.3 (prior
version effective through June 11, 2015). The “North
American Numbering Plan” (NANP) is the ten-digit
telephone numbering plan used in the United States. See In re
Implementation of Sections 3(n) & 332 of the
Communications Act (“1994 Order”), 9 FCC Rcd. 1411, 1437
¶ 60 n.116 (1994).
58
In 1994, when the Commission initially established that
definition of “public switched network,” cellular telephone
(i.e., mobile voice) service was the major mobile service;
mobile broadband did not yet exist. Noting that the “purpose
of the public switched network is to allow the public to send
or receive messages to or from anywhere in the nation,” the
Commission observed that the NANP fulfilled that purpose by
providing users with “ubiquitous access” to all other users.
Id. at 1436–37 ¶¶ 59–60; see 2015 Open Internet Order, 30
FCC Rcd. at 5779 ¶ 391. Because mobile voice users could
interconnect with the public switched network as then defined
(the network of ten-digit telephone numbers), mobile voice
was classified as a “commercial”—as opposed to “private”—
“mobile service.” 1994 Order, 9 FCC Rcd. at 1454–55 ¶ 102.
It therefore was subject to common carrier treatment.

In 2007, the Commission first classified the then-
emerging platform of mobile broadband. The Commission
determined that mobile broadband users could not
interconnect with the public switched network—defined at the
time as the telephone network—because mobile broadband
uses IP addresses, not telephone numbers. See 2015 Open
Internet Order, 30 FCC Rcd. at 5784 ¶ 397; 2007 Wireless
Order, 22 FCC Rcd. at 5917–18 ¶ 45. Mobile broadband thus
was not considered an “interconnected service” (or, therefore,
a commercial mobile service), i.e., a “service that is
interconnected with the public switched network” as that term
was then “defined by . . . the Commission.” 47 U.S.C.
§ 332(d)(2). Presumably in light of mobile broadband’s
“nascent” status at the time, 2007 Wireless Order, 22 FCC
Rcd. at 5922 ¶ 59, the Commission gave no evident
consideration to expanding its definition of the “public
switched network” so as to encompass IP addresses in
addition to telephone numbers.
59
In the 2015 Order, the Commission determined that it
should expand its definition of the public switched network in
that fashion to “reflect[] the current network landscape.” 30
FCC Rcd. at 5779 ¶ 391; see id. at 5786 ¶ 399. The
Commission took note of “evidence of the extensive changes
that have occurred in the mobile marketplace.” Id. at 5785–
86 ¶ 398. For instance, as of the end of 2014, nearly three-
quarters “of the entire U.S. age 13+ population was
communicating with smart phones,” and “by 2019,”
according to one forecast, “North America will have nearly
90% of its installed base[] converted to smart devices and
connections.” Id. at 5785 ¶ 398. In addition, the Commission
noted that the “hundreds of millions of consumers” who
already “use[d] mobile broadband” as of 2015 could “send or
receive communications to or from anywhere in the nation,
whether connected with other mobile broadband subscribers,
fixed broadband subscribers, or the hundreds of millions of
websites available to them over the Internet.” Id. Those
significant developments, the Commission found,
“demonstrate[] the ubiquity and wide scale use of mobile
broadband Internet access service today.” Id. at 5786 ¶ 398.

The upshot is that, just as mobile voice (i.e., cellular
telephone) service in 1994 provided “ubiquitous access” for
members of the public to communicate with one another
“from anywhere in the nation,” mobile broadband by 2015
had come to provide the same sort of ubiquitous access. Id. at
5779–80 ¶ 391, 5785–86 ¶¶ 398–99. And the ubiquitous
access characterizing both mobile voice and mobile
broadband stands in marked contrast to “the private mobile
service[s] of 1994, such as a private taxi dispatch service,
services that offered users access to a discrete and limited set
of endpoints.” Id. at 5789 ¶ 404; see 1994 Order, 9 FCC Rcd.
at 1414 ¶ 4. In recognition of the similarity of mobile
broadband to mobile voice as a universal medium of
60
communication for the general public—and the dissimilarity
of mobile broadband to closed private networks such as those
used by taxi companies or local police and fire departments—
the Commission in 2015 sought to reclassify “today’s broadly
available mobile broadband” service as a commercial mobile
service like mobile voice, rather than as a private mobile
service like those employed by closed police or fire
department networks. 2015 Open Internet Order, 30 FCC
Rcd. at 5786 ¶ 399; see 1994 Order, 9 FCC Rcd. at 1414 ¶ 4.
Aligning mobile broadband with mobile voice based on their
affording similarly ubiquitous access, moreover, was in
keeping with Congress’s objective in establishing a defined
category of “commercial mobile services” subject to common
carrier treatment: to “creat[e] regulatory symmetry among
similar mobile services.” 1994 Order, 9 FCC Rcd. at 1413
¶ 2; see 2015 Open Internet Order, 30 FCC Rcd. at 5786
¶ 399; H.R. Rep. No. 103-111 at 259 (May 25, 1993) (noting
that amendments to section 332 were intended to ensure “that
services that provide equivalent mobile services are regulated
in the same manner”).

In the interest of achieving that regulatory symmetry and
bringing mobile broadband into alignment with mobile voice
as a commercial mobile service, the Commission updated its
definition of the “public switched network” to include both
users reachable by ten-digit phone numbers and users
reachable by IP addresses. See 2015 Open Internet Order, 30
FCC Rcd. at 5779 ¶ 391. The newly expanded definition of
“public switched network” thus covers “the network that
includes any common carrier switched network . . . that use[s]
the North American Numbering Plan, or public IP addresses,
in connection with the provision of switched services.” Id.
(emphasis added) (alteration in original); 47 C.F.R. § 20.3;
see Bell Atlantic Telephone Cos. v. FCC, 206 F.3d 1, 4 (D.C.
Cir. 2000) (“[T]he internet is a ‘distributed packet-switched
61
network.’”). And because the public switched network now
includes IP addresses, the Commission found that mobile
broadband qualifies as an “interconnected service,” i.e.,
“service that is interconnected with the public switched
network” as redefined. 47 U.S.C. § 332(d)(2); see 2015 Open
Internet Order, 30 FCC Rcd. at 5779–80 ¶ 391, 5786 ¶ 399.

According to the Commission, then, mobile broadband
meets all parts of the statutory definition of a “commercial
mobile service” subject to common carrier regulation: it is a
“mobile service . . . that is provided for profit and makes
interconnected service available . . . to the public or . . . a
substantial portion of the public.” 47 U.S.C. § 332(d)(1). We
find the Commission’s reclassification of mobile broadband
as a commercial mobile service under that definition to be
reasonable and supported by record evidence demonstrating
the “rapidly growing and virtually universal use of mobile
broadband service” today. 2015 Open Internet Order, 30 FCC
Rcd. at 5786 ¶ 399. In support of its reclassification decision,
the Commission relied on, and recounted in detail, evidence
of the explosive growth of mobile broadband service and its
near universal use by the public. See id. at 5635–38 ¶¶ 88–92,
5779 ¶ 391, 5785–86 ¶¶ 398–99. In the face of that evidence,
we see no basis for concluding that the Commission was
required in 2015 to continue classifying mobile broadband as
a “private” mobile service.

B.
Mobile petitioners offer two principal arguments in
support of their position that mobile broadband nonetheless
must be treated as a private mobile service rather than a
commercial mobile service. First, they argue that “public
switched network” is a term of art confined to the public
switched telephone network. Second, they contend that, even
if the Commission can expand the definition of public
62
switched network to encompass users with IP addresses in
addition to users with telephone numbers, mobile broadband
still fails to qualify as an “interconnected service.”

We reject both arguments. In mobile petitioners’ view,
mobile broadband (or any non-telephone mobile service)—no
matter how universal, widespread, and essential a medium of
communication for the public it may become—must always
be considered a “private mobile service” and can never be
considered a “commercial mobile service.” Nothing in the
statute compels attributing to Congress such a wooden,
counterintuitive understanding of those categories. Rather,
Congress expressly delegated to the Commission the authority
to define—and hence necessarily to update and revise—those
categories’ key definitional components, “public switched
network” and “interconnected service.” 47 U.S.C. § 332(d);
see 2015 Open Internet Order, 30 FCC Rcd. at 5783–84
¶ 396.

“In this sort of case, there is no need to rely on the
presumptive delegation to agencies of authority to define
ambiguous or imprecise terms we apply under the Chevron
doctrine, for the delegation of interpretative authority is
express.” Women Involved in Farm Economics v. U.S.
Department of Agriculture, 876 F.2d 994, 1000–01 (D.C. Cir.
1989) (citation omitted); see Rush University Medical Center
v. Burwell, 763 F.3d 754, 760 (7th Cir. 2014); 2015 Open
Internet Order, 30 FCC Rcd. at 5783 ¶ 396 & n.1145. We
find the Commission’s exercise of that express definitional
authority to be a reasoned and reasonable interpretation of the
statute. We therefore sustain the Commission’s
reclassification of mobile broadband as a commercial mobile
service against mobile petitioners’ challenges. In light of that
disposition, we need not address the Commission’s alternative
finding that mobile broadband, even if not a commercial
63
mobile service, is still subject to common carrier treatment as
the “functional equivalent” of a commercial mobile service.
See 47 U.S.C. § 332(d)(3); 2015 Open Internet Order, 30 FCC
Rcd. at 5788–90 ¶¶ 404–08.

1.
We first consider mobile petitioners’ challenge to the
Commission’s updated definition of “public switched
network.” That term, as set out above, forms an integral
component of the statutory definition of “commercial mobile
service.” Any such service must qualify as an
“interconnected service,” defined in the statute as “service
that is interconnected with the public switched network.” 47
U.S.C. § 332(d)(1)–(2). And Congress expressly gave the
Commission the authority to define the public switched
network, id. § 332(d)(2), which the Commission exercised by
revising its definition in the Order. As we have explained, the
Commission, relying on the growing universality of mobile
broadband as a medium of communication for the public,
expanded the definition of the public switched network so that
it now uses IP addresses in addition to telephone numbers in
connection with the provision of switched services.

Mobile petitioners argue that Congress intended “public
switched network” to mean—forever—“public switched
telephone network,” and that the Commission thus lacks
authority to expand the definition of the network to include
endpoints other than telephone numbers. We are
unpersuaded. Mobile petitioners’ interpretation necessarily
contemplates adding a critical word (“telephone”) that
Congress left out of the statute, an unpromising avenue for an
argument about the meaning of the words Congress used.
See, e.g., Adirondack Medical Center v. Sebelius, 740 F.3d
692, 699–700 (D.C. Cir. 2014); Public Citizen, Inc. v. Rubber
Manufacturers Ass’n, 533 F.3d 810, 816 (D.C. Cir. 2008). If
64
Congress meant for the phrase “public switched network” to
carry the more restrictive meaning attributed to it by mobile
petitioners, Congress could (and presumably would) have
used the more limited—and more precise—term “public
switched telephone network.” Indeed, Congress used that
precise formulation in another, later-enacted statute. See 18
U.S.C. § 1039(h)(4). Here, though, Congress elected to use
the more general term “public switched network,” which by
its plain language can reach beyond telephone networks
alone. See 2015 Open Internet Order, 30 FCC Rcd. at 5783
¶ 396.

Not only did Congress decline to invoke the term “public
switched telephone network,” but it also gave the
Commission express authority to define the broader term it
used instead. See 47 U.S.C. § 332(d)(2). Mobile petitioners
conceive of “public switched network” as a term of art
referring only to a network using telephone numbers. But if
that were so, it is far from clear why Congress would have
invited the Commission to define the term, rather than simply
setting out its ostensibly fixed meaning in the statute. We
instead agree with the Commission that, in granting the
Commission general definitional authority, Congress
“expected the notion [of the public switched network] to
evolve and therefore charged the Commission with the
continuing obligation to define it.” 2015 Open Internet Order,
30 FCC Rcd. at 5783 ¶ 396.

It is of no moment that Congress, in another statute, used
the term “public switched network” in a context indicating an
intention to refer to the telephone network. See 47 U.S.C.
§ 1422(b)(1)(B)(ii) (referring to “the public Internet or the
public switched network”). That statute, unlike section
332(d)(2), contains no grant of authority to the Commission to
define the term. And it was enacted during the time when the
65
Commission’s prior, longstanding regulatory definition of
“public switched network” was in effect. Because the
Commission at the time had defined the “public switched
network” by reference to the telephone network, it is
unsurprising that Congress would have assumed the term to
have that meaning. But that assumption by no means
indicates that Congress meant to divest the Commission of the
definitional authority it had expressly granted the
Commission in section 332(d)(2). We do not understand
Congress’s express grant of definitional authority to have
come burdened with an unstated intention to compel the
Commission to forever retain a definition confined to one
specific type of “public switched network,” i.e., the telephone
network.

We therefore reject mobile petitioners’ counter-textual
argument that the statutory phrase “public switched network”
must be understood as if Congress had used the phrase
“public switched telephone network.” Instead, the more
general phrase “public switched network,” by its terms,
reaches any network that is both “public” and “switched.”
Mobile petitioners do not dispute that a network using both IP
addresses and telephone numbers is “public” and “switched.”
As the Commission explained, its expansion of the network to
include the use of IP addresses involves a “switched” network
in that it “reflects the emergence and growth of packet
switched Internet Protocol-based networks,” and it also
involves a “public” network in that “today’s broadband
Internet access networks use their own unique addressing
identifier, IP addresses, to give users a universally recognized
format for sending and receiving messages across the country
and worldwide.” 2015 Open Internet Order, 30 FCC Rcd. at
5779–80 ¶ 391 (emphasis added). The Commission thus
permissibly considered a network using telephone numbers
and IP addresses to be a “public switched network.”
66
2.
Mobile petitioners next challenge the Commission’s
understanding of “interconnected service.” That term, too, is
an integral part of the definition of commercial mobile
service. A commercial mobile service must “make[]
interconnected service available . . . to the public or to . . . a
substantial portion of the public.” 47 U.S.C. § 332(d)(1).
And “interconnected service” is “service that is
interconnected with the public switched network.” Id.
§ 332(d)(2). As with the phrase “public switched network,”
Congress gave the Commission express authority to define the
term “interconnected service.” Id.

The Commission has defined “interconnected service” as
a service “that gives subscribers the capability to
communicate to or receive communication from all other
users on the public switched network.” 47 C.F.R. § 20.3
(prior version effective through June 11, 2015); see 2015
Open Internet Order, 30 FCC Rcd. at 5779 ¶ 390. (We note
that, in the 2015 Order, the Commission excised the word
“all” from that definition. But as we explain below, the
Commission considered that adjustment a purely conforming
one with no substantive effect; we use the prior language to
confirm that mobile broadband would qualify as
interconnected service regardless of the Commission’s
adjustment.)

The question under the Commission’s definition of
“interconnected service,” then, is whether mobile broadband
“gives subscribers the capability to communicate to or receive
communication from all other users on the public switched
network” as redefined to encompass devices using both IP
addresses and telephone numbers. 47 C.F.R. § 20.3 (prior
version effective through June 11, 2015). The Commission
reasonably found that mobile broadband gives users that
67
“capability.” See 2015 Open Internet Order, 30 FCC Rcd. at
5779–80 ¶¶ 390–91, 5785–86 ¶ 398, 5787 ¶ 401.

As an initial matter, there is no dispute about the
“capability” of mobile broadband subscribers to
“communicate to” oth

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3212871. Public record. Not legal advice.