Restoring Internet Freedom

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Federal Communications Commission FCC 17-166

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Restoring Internet Freedom

)

) WC Docket No. 17-108

DECLARATORY RULING, REPORT AND ORDER, AND ORDER

Adopted: December 14, 2017 Released: January 4, 2018

By the Commission: Chairman Pai and Commissioners O�Rielly and Carr issuing separate statements;

Commissioners Clyburn and Rosenworcel dissenting and issuing separate statements.

TABLE OF CONTENTS

Para.

I. INTRODUCTION...................................................................................................................................1

II. BACKGROUND.....................................................................................................................................6

III. ENDING PUBLIC-UTILITY REGULATION OF THE INTERNET .................................................20

A. Reinstating the Information Service Classification of Broadband Internet Access Service...........21

1. Scope ........................................................................................................................................21

2. Broadband Internet Access Service Is an Information Service Under the Act ........................26

3. Other Provisions of the Act Support Broadband�s Information Service Classification...........58

B. Reinstating the Private Mobile Service Classification of Mobile Broadband Internet

Access Service ................................................................................................................................65

C. Public Policy Supports Classifying Broadband Internet Access Service As An

Information Service ........................................................................................................................86

1. Title II Regulation Imposes Substantial Costs on the Internet Ecosystem...............................88

..............................................................65

C. Public Policy Supports Classifying Broadband Internet Access Service As An

Information Service ........................................................................................................................86

1. Title II Regulation Imposes Substantial Costs on the Internet Ecosystem...............................88

2. Utility-Style Regulation of Broadband Is a Solution in Search of a Problem........................109

3. Pre-Existing Consumer Protection and Competition Laws Protect the Openness of the

Internet....................................................................................................................................140

D. Restoring the Information Service Classification is Lawful and Necessary.................................155

E. Effects on Regulatory Structures Created by the Title II Order ...................................................162

1. Ending Title II Regulation of Internet Traffic Exchange .......................................................163

2. Forbearance ............................................................................................................................174

3. Returning Broadband Privacy Authority to the FTC .............................................................181

4. Wireline Infrastructure ...........................................................................................................185

5. Wireless Infrastructure ...........................................................................................................187

6. Universal Service....................................................................................................................192

7. Preemption of Inconsistent State and Local Regulations .......................................................194

8. Disability Access Provisions ..................................................................................................205

187

6. Universal Service....................................................................................................................192

7. Preemption of Inconsistent State and Local Regulations .......................................................194

8. Disability Access Provisions ..................................................................................................205

9. Continued Applicability of Title III Licensing Provisions.....................................................206

IV. A LIGHT-TOUCH FRAMEWORK TO RESTORE INTERNET FREEDOM .................................207

A. Transparency.................................................................................................................................209

1. History of the Transparency Rule...........................................................................................211

2. Refining the Transparency Rule.............................................................................................215

3. Authority for the Transparency Rule......................................................................................232

B. Bright-Line and General Conduct Rules.......................................................................................239

1. Transparency Leads to Openness ...........................................................................................240

Federal Communications Commission FCC 17-166

2. Costs of Conduct Rules Outweigh Benefits ...........................................................................246

3. The Record Does Not Identify Authority for Comprehensive Conduct Rules ......................267

C. Enforcement ..................................................................................................................................297

V. COST-BENEFIT ANALYSIS ............................................................................................................304

....246

3. The Record Does Not Identify Authority for Comprehensive Conduct Rules ......................267

C. Enforcement ..................................................................................................................................297

V. COST-BENEFIT ANALYSIS ............................................................................................................304

VI. ORDER................................................................................................................................................324

A. Denial of INCOMPAS Petition to Modify Protective Orders ......................................................324

B. Denial of NHMC Motion Regarding Informal Consumer Complaints ........................................339

VII. PROCEDURAL MATTERS ........................................................................................................344

A. The Administrative Record...........................................................................................................344

B. Final Regulatory Flexibility Analysis ...........................................................................................346

C. Paperwork Reduction Act Analysis ..............................................................................................347

D. Congressional Review Act............................................................................................................349

E. Data Quality Act ...........................................................................................................................350

F. Accessible Formats .......................................................................................................................351

VIII. ORDERING CLAUSES ...............................................................................................................352

APPENDIX A � Final Rules

APPENDIX B � Final Regulatory Flexibility Analysis

I. INTRODUCTION

.............350

F. Accessible Formats .......................................................................................................................351

VIII. ORDERING CLAUSES ...............................................................................................................352

APPENDIX A � Final Rules

APPENDIX B � Final Regulatory Flexibility Analysis

I. INTRODUCTION

1. Over twenty years ago, in the Telecommunications Act of 1996, President Clinton and a

Republican Congress established the policy of the United States �to preserve the vibrant and competitive

free market that presently exists for the Internet . . . unfettered by Federal or State regulation.�

Today,

we honor that bipartisan commitment to a free and open Internet by rejecting government control of the

Internet. We reverse the Commission�s abrupt shift two years ago to heavy-handed utility-style

regulation of broadband Internet access service and return to the light-touch framework under which a

free and open Internet underwent rapid and unprecedented growth for almost two decades. We eliminate

burdensome regulation that stifles innovation and deters investment, and empower Americans to choose

the broadband Internet access service that best fits their needs.

2. We take several actions in this Order to restore Internet freedom. First, we end utility-

style regulation of the Internet in favor of the market-based policies necessary to preserve the future of

Internet freedom. In the 2015 Title II Order, the Commission abandoned almost twenty years of

precedent and reclassified broadband Internet access service as a telecommunications service subject to

myriad regulatory obligations under Title II of the Communications Act of 1934, as amended (the Act).

We reverse this misguided and legally flawed approach and restore broadband Internet access service to

its Title I information service classification

andoned almost twenty years of

precedent and reclassified broadband Internet access service as a telecommunications service subject to

myriad regulatory obligations under Title II of the Communications Act of 1934, as amended (the Act).

We reverse this misguided and legally flawed approach and restore broadband Internet access service to

its Title I information service classification. We find that reclassification as an information service best

comports with the text and structure of the Act, Commission precedent, and our policy objectives. We

thus return to the approach to broadband Internet access service affirmed as reasonable by the U.S.

Supreme Court.

We also reinstate the private mobile service classification of mobile broadband Internet

access service and return to the Commission�s definition of �interconnected service� that existed prior to

2015. We determine that this light-touch information service framework will promote investment and

innovation better than applying costly and restrictive laws of a bygone era to broadband Internet access

service. Our balanced approach also restores the authority of the nation�s most experienced cop on the

privacy beat�the Federal Trade Commission�to police the privacy practices of Internet Service

Providers (ISPs).

47 U.S.C. � 230(b)(2). See generally Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56

(codified at 47 U.S.C. � 151 et seq.) (1996 Act).

See Protecting and Promoting the Open Internet, WC Docket No. 14-28, Report and Order on Remand,

Declaratory Ruling, and Order, 30 FCC Rcd 5601 (2015) (Title II Order).

See Nat�l Cable & Telecomms. Ass�n v. Brand X Internet Servs., 545 U.S. 967 (2005) (Brand X).

Federal Communications Commission FCC 17-166

3. Next, we require ISPs to be transparent

.S.C. � 151 et seq.) (1996 Act).

See Protecting and Promoting the Open Internet, WC Docket No. 14-28, Report and Order on Remand,

Declaratory Ruling, and Order, 30 FCC Rcd 5601 (2015) (Title II Order).

See Nat�l Cable & Telecomms. Ass�n v. Brand X Internet Servs., 545 U.S. 967 (2005) (Brand X).

Federal Communications Commission FCC 17-166

3. Next, we require ISPs to be transparent. Disclosure of network management practices,

performance, and commercial terms of service is important for Internet freedom because it helps

consumers choose what works best for them and enables entrepreneurs and other small businesses to get

technical information needed to innovate. Individual consumers, not the government, decide what

Internet access service best meets their individualized needs. We return to the transparency rule the

Commission adopted in 2010

with certain limited modifications to promote additional transparency, and

we eliminate certain reporting requirements adopted in the Title II Order that we find to be unnecessary

and unduly burdensome.

4. Finally, we eliminate the Commission�s conduct rules. The record evidence, including

our cost-benefit analysis, demonstrates that the costs of these rules to innovation and investment outweigh

any benefits they may have. In addition, we have not identified any sources of legal authority that could

justify the comprehensive conduct rules governing ISPs adopted in the Title II Order. Lastly, we find that

the conduct rules are unnecessary because the transparency requirement we adopt, together with antitrust

and consumer protection laws, ensures that consumers have means to take remedial action if an ISP

engages in behavior inconsistent with an open Internet.

authority that could

justify the comprehensive conduct rules governing ISPs adopted in the Title II Order. Lastly, we find that

the conduct rules are unnecessary because the transparency requirement we adopt, together with antitrust

and consumer protection laws, ensures that consumers have means to take remedial action if an ISP

engages in behavior inconsistent with an open Internet.

5. Through these actions, we advance our critical work to promote broadband deployment

in rural America and infrastructure investment throughout the nation, brighten the future of innovation

both within networks and at their edge, and move closer to the goal of eliminating the digital divide.

II. BACKGROUND

6. Since long before the commercialization of the Internet, federal law has drawn a line

between the more heavily-regulated common carrier services like traditional telephone service and more

lightly-regulated services that offer more than mere transmission. More than fifty years ago, the

Commission decided Computer I, the first of a series of decisions known as the Computer Inquiries,

which, in combination, created a dichotomy between �basic� and �enhanced� services.

In 1980�s Second

Computer Inquiry, the Commission established that basic services offered �pure transmission capability

over a communications path that is virtually transparent in terms of its interaction with customer supplied

information�

and were �regulated under Title II of the [Communications] Act.�

Enhanced services, by

contrast, were �any offering over the telecommunications network which is more than a basic

transmission service. In an enhanced service, for example, computer processing applications are used to

act on the content, code, protocol, and other aspects of the subscriber�s information.�

Unlike basic

services, the Commission found that �enhanced services should not be regulated under the Act.�

ere �any offering over the telecommunications network which is more than a basic

transmission service. In an enhanced service, for example, computer processing applications are used to

act on the content, code, protocol, and other aspects of the subscriber�s information.�

Unlike basic

services, the Commission found that �enhanced services should not be regulated under the Act.�

7. Just two years later, the federal courts would draw a similar line in resolving the

government�s antitrust case against AT&T. The Modification of Final Judgment (MFJ) of 1982

distinguished between �telecommunications services,� which Bell Operating Companies could offer when

See Preserving the Open Internet; Broadband Industry Practices, GN Docket No. 09-191, WC Docket No. 07-52,

Report and Order, 25 FCC Rcd 17905, 17972-80, 17981, paras. 124-35, 137 (2010) (Open Internet Order).

Regulatory and Policy Problems Presented by the Interdependence of Computer and Communication Services,

Notice of Inquiry, 7 FCC 2d 11 (1966).

Amendment of Section 64.702 of the Commission�s Rules and Regulations (Second Computer Inquiry), Docket No.

20828, Final Decision, 77 FCC 2d 384, 420, para. 97 (1980) (Computer II Final Decision).

Id. at 420, para. 96.

Id. at 428, para. 114.

Id. at 420, para. 97.

Id. at 428, para. 114.

Federal Communications Commission FCC 17-166

�actually regulated by tariff,�

and �information services,� including �data processing and other

computer-related services�

and �electronic publishing services,�

which Bell Operating Companies

(BOCs) were prohibited from offering under the terms of that court decision.

The Telecommunications

Act of 1996�s (the 1996 Act) �information service� definition is based on the definition of that same term

used in the MFJ, which governed the Bell Operating Companies after the breakup of the Bell system.

electronic publishing services,�

which Bell Operating Companies

(BOCs) were prohibited from offering under the terms of that court decision.

The Telecommunications

Act of 1996�s (the 1996 Act) �information service� definition is based on the definition of that same term

used in the MFJ, which governed the Bell Operating Companies after the breakup of the Bell system.

8. In the 1996 Act, intended to �promote competition and reduce regulation,�

Congress

drew a line between lightly regulated �information services� and more heavily regulated

�telecommunications services.�

It also found that the �Internet and other interactive computer services

have flourished, to the benefit of all Americans, with a minimum of government regulation�

and

declared it the policy of the United States to �promote the continued development of the Internet and

other interactive computer services and other interactive media� and �to preserve the vibrant and

competitive free market that presently exists for the Internet and other interactive computer services,

unfettered by Federal or State regulation.�

The 1996 Act went on to define �interactive computer

service� to include �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 . . . .�

9. For the next 16 years, the Commission repeatedly adopted a light-touch approach to the

Internet that favored discrete and targeted actions over pre-emptive, sweeping regulation of Internet

service providers. In the 1998 Stevens Report, the Commission comprehensively reviewed the Act�s

definitions as they applied to the emerging technology of the Internet and concluded that Internet access

service was properly classified as an information service

light-touch approach to the

Internet that favored discrete and targeted actions over pre-emptive, sweeping regulation of Internet

service providers. In the 1998 Stevens Report, the Commission comprehensively reviewed the Act�s

definitions as they applied to the emerging technology of the Internet and concluded that Internet access

service was properly classified as an information service.

The Stevens Report also found that subjecting

Internet service providers and other information service providers to �the broad range of Title II

constraints,� would �seriously curtail the regulatory freedom that the Commission concluded in Computer

II was important to the healthy and competitive development of the enhanced-services industry.�

U.S. v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 228-29 (D.D.C. 1982) (MFJ Initial Decision), aff�d sub nom.

Maryland v. U.S., 460 U.S. 1001 (1983).

Id. at 179.

Id. at 180.

Id. at 228.

Implementation of the Non-Accounting Safeguards of Section 271 and 272 of the Communications Act of 1934, as

amended, CC Docket No. 96-149, First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd

21905, 21954, para. 99 (1996) (Non-Accounting Safeguards Order); see also, e.g., H.R. Conf. Rep. No. 104-458 at

126 (Jan. 31, 1996) (��Information service� and �telecommunications� are defined based on the definition used in the

Modification of Final Judgment.�); see also Federal-State Joint Board on Universal Service, CC Docket No. 96-45,

Report to Congress, 13 FCC Rcd 11501, 11514, para. 28 (1998) (Stevens Report) (citing MFJ Initial Decision, 552

F. Supp. at 226-32).

Preamble, Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).

47 U.S.C. � 153(24), (53).

47 U.S.C. � 230(a)(4).

47 U.S.C. � 230(b)(1), (2).

47 U.S.C. � 230(f)(2).

Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd 11501,

11536, para

(citing MFJ Initial Decision, 552

F. Supp. at 226-32).

Preamble, Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996).

47 U.S.C. � 153(24), (53).

47 U.S.C. � 230(a)(4).

47 U.S.C. � 230(b)(1), (2).

47 U.S.C. � 230(f)(2).

Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd 11501,

11536, para. 73 (1998) (Stevens Report).

Id. at 11524, para. 46.

Federal Communications Commission FCC 17-166

10. In the 2002 Cable Modem Order, the Commission classified broadband Internet access

service over cable systems as an �interstate information service,�

a classification that the Supreme Court

upheld in June 2005 in the Brand X decision.

There was no dispute that at least some of the elements of

Internet access met the definition of �information services,� and the Court rejected claims that �[w]hen a

consumer goes beyond those offerings and accesses content provided by parties other than the cable

company� that �consumer uses �pure transmission.��

To the contrary, the Court found �reasonable� �the

Commission�s understanding of the nature of cable modem service��namely, that �[w]hen an end user

accesses a third party�s Web site� that user �is equally using the information service provided by the cable

company that offers him Internet access as when he accesses the company�s own Web site, its e-mail

service, or his personal Web page,� citing as examples the roles of Domain Name System (DNS) and

caching.

11. In 2004, then-FCC Chairman Michael Powell announced four principles for Internet

freedom to further ensure that the Internet would remain a place for free and open innovation with

minimal regulation.

These four �Internet freedoms� include the freedom to access lawful content, the

freedom to use applications, the freedom to attach personal devices to the network, and the freedom to

obtain service plan information.

ll announced four principles for Internet

freedom to further ensure that the Internet would remain a place for free and open innovation with

minimal regulation.

These four �Internet freedoms� include the freedom to access lawful content, the

freedom to use applications, the freedom to attach personal devices to the network, and the freedom to

obtain service plan information.

12. In the 2005 Wireline Broadband Classification Order, the Commission classified

broadband Internet access service over wireline facilities as an information service.

At the same time,

the Commission also unanimously endorsed the four Internet freedoms in the Internet Policy Statement.

The Internet Policy Statement announced the Commission�s intent to �incorporate [these] principles into

its ongoing policymaking activities� in order to �foster creation, adoption and use of Internet broadband

content, applications, services and attachments, and to ensure consumers benefit from the innovation that

comes from competition.�

See Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over Cable

Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities,

GN Docket No. 00-185, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC

Rcd 4798, 4802, para. 7 (2002) (Cable Modem Order).

Brand X, 545 U.S. 967.

Id. at 998.

Id. at 998-1000.

Michael K. Powell, Chairman, FCC, Preserving Internet Freedom: Guiding Principles for the Industry, Remarks at

the Silicon Flatirons Symposium (Feb. 8, 2004), https://apps.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf

(Powell Speech).

Id. at 5.

See Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos.

02-33, 01-337, 95-20, 98-10, WC Docket Nos

irman, FCC, Preserving Internet Freedom: Guiding Principles for the Industry, Remarks at

the Silicon Flatirons Symposium (Feb. 8, 2004), https://apps.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf

(Powell Speech).

Id. at 5.

See Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos.

02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed

Rulemaking, 20 FCC Rcd 14853 (2005) (Wireline Broadband Classification Order), aff�d Time Warner Telecom,

Inc. v. FCC, 507 F.3d 205 (3d Cir. 2007).

Appropriate Framework for Broadband Access to the Internet over Wireline Facilities et al., GN Docket No. 00-

185, CC Docket Nos. 02-33, 01-33, 98-10, 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986

(2005) (Internet Policy Statement).

Id. at 14988, para. 5. The Commission did this, for example, by incorporating such principles in its rules

governing certain wireless spectrum. See Service Rules For the 698-746, 747-762 and 777-792 MHz Bands et al.,

WT Docket No. 06-150 et al., Second Report and Order, 22 FCC Rcd 15289, 15361, 15365, paras. 194, 206 (2007).

Federal Communications Commission FCC 17-166

13. In the 2006 BPL-Enabled Broadband Order, the Commission concluded that broadband

Internet access service over power lines was properly classified as an information service,

and in the

2007 Wireless Broadband Internet Access Order, the Commission classified wireless broadband Internet

access service as an information service, again recognizing the �minimal regulatory environment� that

promoted the �ubiquitous availability of broadband to all Americans.�

The Commission also found that

�mobile wireless broadband Internet access service is not a �commercial mobile radio service� as that

term is defined in the Act and implemented in the Commission�s rules.�

access service as an information service, again recognizing the �minimal regulatory environment� that

promoted the �ubiquitous availability of broadband to all Americans.�

The Commission also found that

�mobile wireless broadband Internet access service is not a �commercial mobile radio service� as that

term is defined in the Act and implemented in the Commission�s rules.�

14. In the 2008 Comcast-BitTorrent Order, the Commission sought to directly enforce

federal Internet policy that it drew from various statutory provisions consistent with the Internet Policy

Statement, finding certain actions by Comcast �contravene[d] . . . federal policy� by �significantly

imped[ing] consumers� ability to access the content and use the applications of their choice.�

In 2010,

the U.S. Court of Appeals for the D.C. Circuit rejected the Commission�s action, holding that the

Commission had not justified its action as a valid exercise of ancillary authority.

15. In response, the Commission adopted the 2010 Open Internet Order, where once again

the Commission specifically rejected Title II-based heavy-handed regulation of broadband Internet access

service.

Instead, the Open Internet Order relied on, among other things, newly-claimed regulatory

authority under section 706 of the Telecommunications Act to establish no-blocking and no-

unreasonable-discrimination rules as well as a requirement that broadband Internet access service

providers �publicly disclose accurate information regarding the network management practices,

performance, and commercial terms of its broadband Internet access services.�

16. In 2014, the D.C

authority under section 706 of the Telecommunications Act to establish no-blocking and no-

unreasonable-discrimination rules as well as a requirement that broadband Internet access service

providers �publicly disclose accurate information regarding the network management practices,

performance, and commercial terms of its broadband Internet access services.�

16. In 2014, the D.C. Circuit vacated the no-blocking and no-unreasonable-discrimination

rules adopted in the Open Internet Order, finding that the rules impermissibly regulated broadband

Internet access service providers as common carriers,

in conflict with the Commission�s prior

determination that broadband Internet access service was not a telecommunications service and that

mobile broadband Internet access service was not a commercial mobile service.

The D.C. Circuit

nonetheless upheld the transparency rule,

held that the Commission had reasonably construed section

See United Power Line Council�s Petition for Declaratory Ruling Regarding the Classification of Broadband over

Power Line Internet Access Service as an Information Service, WC Docket No. 06-10, Memorandum Opinion and

Order, 21 FCC Rcd 13281 (2006) (BPL-Enabled Broadband Order).

See Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, Declaratory

Ruling, 22 FCC Rcd 5901, 5902, para. 2 (2007) (Wireless Broadband Internet Access Order).

Id. at 5916, para. 41.

Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading

Peer-to-Peer Applications; Broadband Industry Practices; Petition of Free Press et al. for Declaratory Ruling that

Degrading an Internet Application Violates the FCC�s Internet Policy Statement and Does Not Meet an Exception

for �Reasonable Network Management, File No. EB-08-IH-1518, WC Docket No. 07-52, Memorandum Opinion

and Order, 23 FCC Rcd 13028, 13052, 13054, paras. 43, 45 (2008) (Comcast-BitTorrent Order)

ions; Broadband Industry Practices; Petition of Free Press et al. for Declaratory Ruling that

Degrading an Internet Application Violates the FCC�s Internet Policy Statement and Does Not Meet an Exception

for �Reasonable Network Management, File No. EB-08-IH-1518, WC Docket No. 07-52, Memorandum Opinion

and Order, 23 FCC Rcd 13028, 13052, 13054, paras. 43, 45 (2008) (Comcast-BitTorrent Order).

Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) (Comcast). Among other things, the court held that section

706 of the 1996 Act could not serve as the source of direct authority to which the Commission�s action was ancillary

because the Commission was bound in Comcast by a prior Commission determination that section 706 did not

constitute a direct grant of authority. Id. at 658-59.

Open Internet Order, 25 FCC Rcd at 17972-80, 17981, paras. 124-35, 137.

Id. at 17992 (Appendix A).

Verizon v. FCC, 740 F.3d 623, 655-58 (D.C. Cir. 2014) (Verizon).

Id. at 650.

Id. at 635-42.

Federal Communications Commission FCC 17-166

706 of the Telecommunications Act as a grant of authority to regulate broadband Internet access service

providers, and suggested that no-blocking and no-unreasonable-discrimination rules might be permissible

if Internet service providers could engage in individualized bargaining.

17. Later that year, the Commission embarked yet again down the path of rulemaking,

proposing to rely on section 706 of the 1996 Act to adopt enforceable rules using the D.C. Circuit�s

�roadmap.�

But in November 2014, then-President Obama called on the FCC to �reclassify consumer

broadband service under Title II of the Telecommunications Act.�

Three months later, the Commission

shifted course and adopted the Title II Order, reclassifying broadband Internet access service from an

information service to a telecommunications service,

and reclassifying mobile broadband Internet access

service as a commercial mobile service

n the FCC to �reclassify consumer

broadband service under Title II of the Telecommunications Act.�

Three months later, the Commission

shifted course and adopted the Title II Order, reclassifying broadband Internet access service from an

information service to a telecommunications service,

and reclassifying mobile broadband Internet access

service as a commercial mobile service.

The Commission also adopted three bright-line rules

prohibiting blocking, throttling, and paid-prioritization, as well as a general Internet conduct standard and

�enhancements� to the transparency rule.

In 2016, a divided panel of the D.C. Circuit upheld the Title II

Order in United States Telecom Association v. FCC, concluding that the Commission�s classification of

broadband Internet access service was permissible under Chevron step two.

The D.C. Circuit denied

petitions for rehearing of the case en banc,

and petitions for certiorari remain pending with the Supreme

Court.

18. In May 2017, we adopted a Notice of Proposed Rulemaking (Internet Freedom NPRM),

in which we proposed to return to the successful light-touch bipartisan framework that promoted a free

and open Internet and, for almost twenty years, saw it flourish. Specifically, the Internet Freedom NPRM

proposed to reinstate the information service classification of broadband Internet access service. The

Internet Freedom NPRM also proposed to reinstate the determination that mobile broadband Internet

access service is not a commercial mobile service.

To determine how to best honor the Commission�s

commitment to ensuring the free and open Internet, the Internet Freedom NPRM also proposed to re-

evaluate the Commission�s existing rules and enforcement regime to analyze whether ex ante regulatory

See, e.g., id. at 657 (quoting Cellco Partnership v. FCC, 700 F.3d 534, 549 (D.C. Cir. 2012)).

Protecting and Promoting the Open Internet, WC Docket No

w to best honor the Commission�s

commitment to ensuring the free and open Internet, the Internet Freedom NPRM also proposed to re-

evaluate the Commission�s existing rules and enforcement regime to analyze whether ex ante regulatory

See, e.g., id. at 657 (quoting Cellco Partnership v. FCC, 700 F.3d 534, 549 (D.C. Cir. 2012)).

Protecting and Promoting the Open Internet, WC Docket No. 14-28, Notice of Proposed Rulemaking, 29 FCC

Rcd 5561 (2014) (2014 Notice).

President Obama, Statement on Net Neutrality (Nov. 10, 2014), https://obamawhitehouse.archives.gov/the-press-

office/2014/11/10/statement-president-net-neutrality.

Title II Order, 30 FCC Rcd 5601.

Id. at 5778, para. 388.

Id. at 5607-09, paras. 15-24.

United States Telecom Ass�n v. FCC, 825 F.3d 674 (D.C. Cir. 2016) (USTelecom).

United States Telecom Ass�n v. FCC, 855 F.3d 381, 382 (D.C. Cir. 2017) (Srinivasan, J., and Tatel, J., concurring

in the denial of rehearing en banc) (stating that �[e]n banc review would be particularly unwarranted at this point in

light of the uncertainty surrounding the fate of the FCC�s Order�).

See Petition for Writ of Certiorari, Berninger v. FCC, 825 F.3d 674 (No. 17-498); Petition for Writ of Certiorari,

AT&T v. FCC, 825 F.3d 674 (No. 17-499); Petition for Writ of Certiorari, American Cable Ass'n v. FCC, 825 F.3d

674 (No. 17-500); Petition for Writ of Certiorari, CTIA-The Wireless Ass'n v. FCC, 825 F.3d 674 (No. 17-501);

Petition for Writ of Certiorari, NCTA-The Internet & Television Ass'n v. FCC, 825 F.3d 674 (No. 17-502); Petition

for Writ of Certiorari, TechFreedom v. FCC, 825 F.3d 674 (No. 17-503); Petition for Writ of Certiorari, United

States Telecom Ass'n v. FCC, 825 F.3d 674 (No. 17-504)..

Restoring Internet Freedom, Notice of Proposed Rulemaking, 32 FCC Rcd 4434 (2017) (Internet Freedom

NPRM).

Id. at 4453, para. 55.

Federal Communications Commission FCC 17-166

intervention in the market is necessary

Writ of Certiorari, TechFreedom v. FCC, 825 F.3d 674 (No. 17-503); Petition for Writ of Certiorari, United

States Telecom Ass'n v. FCC, 825 F.3d 674 (No. 17-504)..

Restoring Internet Freedom, Notice of Proposed Rulemaking, 32 FCC Rcd 4434 (2017) (Internet Freedom

NPRM).

Id. at 4453, para. 55.

Federal Communications Commission FCC 17-166

intervention in the market is necessary.

Specifically, the Internet Freedom NPRM proposed to eliminate

the Internet conduct standard and the non-exhaustive list of factors intended to guide application of that

rule.

It also sought comment on whether to keep, modify, or eliminate the bright-line conduct and

transparency rules.

19. The Internet Freedom NPRM prompted more comments than any other rulemaking in the

Commission�s history. Between release of the Internet Freedom NPRM and the close of the comment

period on August 30, 2017, more than 22 million comments were filed in our Electronic Comment Filing

System (ECFS), with even more submissions lodged during the ex parte period.

The Commission is

grateful to all commenters who engaged the legal and public policy questions presented by this important

rulemaking.

III. ENDING PUBLIC-UTILITY REGULATION OF THE INTERNET

20. We reinstate the information service classification of broadband Internet access service,

consistent with the Supreme Court�s holding in Brand X.

Based on the record before us, we conclude

that the best reading of the relevant definitional provisions of the Act supports classifying broadband

Internet access service as an information service. Having determined that broadband Internet access

service, regardless of whether offered using fixed or mobile technologies, is an information service under

the Act, we also conclude that as an information service, mobile broadband Internet access service should

not be classified as a commercial mobile service or its functional equivalent

Internet access service as an information service. Having determined that broadband Internet access

service, regardless of whether offered using fixed or mobile technologies, is an information service under

the Act, we also conclude that as an information service, mobile broadband Internet access service should

not be classified as a commercial mobile service or its functional equivalent. We find that it is well

within our legal authority to classify broadband Internet access service as an information service, and

reclassification also comports with applicable law governing agency decisions to change course. While

we find our legal analysis sufficient on its own to support an information service classification of

broadband Internet access service, strong public policy considerations further weigh in favor of an

information service classification. Below, we find that economic theory, empirical data, and even

anecdotal evidence also counsel against imposing public-utility style regulation on ISPs. The broader

Internet ecosystem thrived under the light-touch regulatory treatment of Title I, with massive investment

and innovation by both ISPs and edge providers, leading to previously unimagined technological

developments and services. We conclude that a return to Title I classification will facilitate critical

broadband investment and innovation by removing regulatory uncertainty and lowering compliance costs.

A. Reinstating the Information Service Classification of Broadband Internet Access

Service

1. Scope

21. We continue to define �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

Id. at 4458, para. 70.

Id. at 4458, para. 72.

Id. at 4460, para. 76, 4461-64, paras. 80-91.

Initial comments on the Internet Freedom NPRM were due on July 17, 2017

ice

1. Scope

21. We continue to define �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

Id. at 4458, para. 70.

Id. at 4458, para. 72.

Id. at 4460, para. 76, 4461-64, paras. 80-91.

Initial comments on the Internet Freedom NPRM were due on July 17, 2017. Reply comments were originally

due on August 16, 2017, but the Commission granted a two-week extension until August 30, 2017, to allow parties

�additional time to analyze the technical, legal, and policy arguments raised by initial commenters [and] provide the

Commission with more thorough comments, ensuring that the Commission has a complete record on which to

develop its decisions.� FCC Extends Restoring Internet Freedom Reply Deadline to Aug. 30, WC Docket No. 17-

108, Order, 32 FCC Rcd 6535, 6535-36, para. 2 (WCB 2017).

Brand X, 545 U.S. at 980.

By mass market, we mean services marketed and sold on a standardized basis to residential customers, small

businesses, and other end-user customers such as schools and libraries. �Schools� would include institutions of

higher education to the extent that they purchase these standardized retail services. For purposes of this definition,

�mass market� also includes broadband Internet access service purchased with the support of the E-rate and Rural

(continued�.)

Federal Communications Commission FCC 17-166

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.

22. The term �broadband Internet access service� includes services provided over any

technology platform, including but not limited to wire, terrestrial wireless (including fixed and mobile

wireless services using licensed or unlicensed spectrum), and satellite

at are incidental to and enable the

operation of the communications service, but excluding dial-up Internet access service.

22. The term �broadband Internet access service� includes services provided over any

technology platform, including but not limited to wire, terrestrial wireless (including fixed and mobile

wireless services using licensed or unlicensed spectrum), and satellite. For purposes of our discussion,

we divide the various forms of broadband Internet access service into the two categories of �fixed� and

�mobile.� With these two categories of services�fixed and mobile�we intend to cover the entire

universe of Internet access services at issue in the Commission�s prior broadband classification

decisions,

as well as all other broadband Internet access services offered over other technology

platforms that were not addressed by prior classification orders. We also make clear that our

classification finding applies to all providers of broadband Internet access service, as we delineate them

here, regardless of whether they lease or own the facilities used to provide the service.

�Fixed�

broadband Internet access service refers to a broadband Internet access service that serves end users

primarily at fixed endpoints using stationary equipment, such as the modem that connects an end user�s

home router, computer, or other Internet access device to the Internet.

The term encompasses the

delivery of fixed broadband over any medium, including various forms of wired broadband services (e.g.,

cable, DSL, fiber), fixed wireless broadband services (including fixed services using unlicensed

spectrum), and fixed satellite broadband services. �Mobile� broadband Internet access service refers to a

broadband Internet access service that serves end users primarily using mobile stations

elivery of fixed broadband over any medium, including various forms of wired broadband services (e.g.,

cable, DSL, fiber), fixed wireless broadband services (including fixed services using unlicensed

spectrum), and fixed satellite broadband services. �Mobile� broadband Internet access service refers to a

broadband Internet access service that serves end users primarily using mobile stations.

Mobile

broadband Internet access includes, among other things, services that use smartphones or mobile-

network-enabled tablets as the primary endpoints for connection to the Internet.

The term also

encompasses mobile satellite broadband services.

23. As the Commission found in 2010, broadband Internet access service does not include

services offering connectivity to one or a small number of Internet endpoints for a particular device, e.g.,

connectivity bundled with e-readers, heart monitors, or energy consumption sensors, to the extent the

service relates to the functionality of the device.

To the extent these services are provided by ISPs over

last-mile capacity shared with broadband Internet access service, they would be non-broadband Internet

access service data services (formerly specialized services). As the Commission found in both 2010 and

2015, non-broadband Internet access service data services do not fall under the broadband Internet access

(Continued from previous page)

Healthcare programs, as well as any broadband Internet access service offered using networks supported by the

Connect America Fund (CAF), but does not include enterprise service offerings or special access services, which are

typically offered to larger organizations through customized or individually negotiated arrangements. See Open

Internet Order, 25 FCC Rcd at 17932, para. 45; Title II Order, 30 FCC Rcd at 5745-46, para. 336 & n.879.

47 CFR � 8.11(a); Open Internet Order, 25 FCC Rcd at 17932, para. 44; id. at 17935, para

oes not include enterprise service offerings or special access services, which are

typically offered to larger organizations through customized or individually negotiated arrangements. See Open

Internet Order, 25 FCC Rcd at 17932, para. 45; Title II Order, 30 FCC Rcd at 5745-46, para. 336 & n.879.

47 CFR � 8.11(a); Open Internet Order, 25 FCC Rcd at 17932, para. 44; id. at 17935, para. 51 (finding that the

market and regulatory landscape for dial-up Internet access service differed from broadband Internet access service).

See Wireless Broadband Internet Access Order, 22 FCC Rcd at 5909-10, paras. 19, 22; Cable Modem Order, 17

FCC Rcd at 4818-19, para. 31; Wireline Broadband Classification Order, 20 FCC Rcd at 14860, para. 9; BPL-

Enabled Broadband Order, 21 FCC Rcd 13281; Title II Order, 30 FCC Rcd at 5746, para. 337.

As the Supreme Court observed in Brand X, �the relevant definitions do not distinguish facilities-based and non-

facilities-based carriers.� Brand X, 545 U.S. at 997.

Open Internet Order, 25 FCC Rcd at 17934, para. 49; Title II Order, 30 FCC Rcd at 5683, para. 188.

See 47 U.S.C. � 153(34); Open Internet Order, 25 FCC Rcd at 17934, para. 49.

We note that �public safety services� as defined in section 337(f)(1) would not meet the definition of �broadband

Internet access service� subject to the rules herein given that �such services are not made commercially available to

the public by the provider� as a mass-market retail service. 47 U.S.C. � 337(f)(1).

See Open Internet Order, 25 FCC Rcd at 17933, para. 47, n.149.

Federal Communications Commission FCC 17-166

service category.

Such services generally are not used to reach large parts of the Internet; are not a

generic platform, but rather a specific applications-level service; and use some form of network

management to isolate the capacity used by these services from that used by broadband Internet access

services

t 17933, para. 47, n.149.

Federal Communications Commission FCC 17-166

service category.

Such services generally are not used to reach large parts of the Internet; are not a

generic platform, but rather a specific applications-level service; and use some form of network

management to isolate the capacity used by these services from that used by broadband Internet access

services.

Further, we observe that to the extent ISPs �use their broadband infrastructure to provide

video and voice services, those services are regulated in their own right.�

24. Broadband Internet access service also does not include virtual private network (VPN)

services, content delivery networks (CDNs), hosting or data storage services, or Internet backbone

services (if those services are separate from broadband Internet access service), consistent with past

Commission precedent.

The Commission has historically distinguished these services from �mass

market� services, as they do not provide the capability to transmit data to and receive data from all or

substantially all Internet endpoints.

We do not disturb that finding here.

25. Finally, we observe that to the extent that coffee shops, bookstores, airlines, private end-

user networks such as libraries and universities, and other businesses acquire broadband Internet access

service from an ISP to enable patrons to access the Internet from their respective establishments,

provision of such service by the premise operator would not itself be considered a broadband Internet

access service unless it was offered to patrons as a retail mass market service, as we define it here

such as libraries and universities, and other businesses acquire broadband Internet access

service from an ISP to enable patrons to access the Internet from their respective establishments,

provision of such service by the premise operator would not itself be considered a broadband Internet

access service unless it was offered to patrons as a retail mass market service, as we define it here.

Likewise, when a user employs, for example, a wireless router or a Wi-Fi hotspot to create a personal Wi-

Fi network that is not intentionally offered for the benefit of others, he or she is not offering a broadband

Internet access service under our definition, because the user is not marketing and selling such service to

residential customers, small business, and other end-user customers such as schools and libraries.

2. Broadband Internet Access Service Is an Information Service Under the Act

26. In deciding how to classify broadband Internet access service, we find that the best

reading of the relevant definitional provisions of the Act supports classifying broadband Internet access

service as an information service. Section 3 of the Act defines an �information service� as �the offering

of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making

available information via telecommunications, and includes electronic publishing, but does not include

any use of any such capability for the management, control, or operation of a telecommunications system

or the management of a telecommunications service.�

Section 3 defines a �telecommunications

service,� by contrast, 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.�

Finally, section 3 defines �telecommunications��used in each of the prior two definitions�as �the

transmission, between or among points specified by the user, of inform

service,� by contrast, 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.�

Finally, section 3 defines �telecommunications��used in each of the prior two definitions�as �the

transmission, between or among points specified by the user, of information of the user�s choosing,

Id. at 17965-66, paras. 112-13; Title II Order, 30 FCC Rcd at 5696, para. 207; see also Illinois DoIT Comments at

1-2 (�We believe it is important to highlight this distinction between BIAS and non-BIAS data services to allow

development of innovative business models that address consumer needs, that are not met through a standard BIAS

offering.�).

Title II Order, 30 FCC Rcd at 5697, para. 209.

Cox Comments at 33.

Open Internet Order, 25 FCC Rcd at 17933, para. 47.

Id. Consistent with past Commissions, we note that the transparency rule we adopt today applies only so far as

the limits of an ISP�s control over the transmission of data to or from its broadband customers.

See Open Internet Order, 25 FCC Rcd at 17935, para. 52. Although not bound by the transparency rule we adopt

today, we encourage premise operators to disclose relevant restrictions on broadband service they make available to

their patrons. See id. at 17936, para. 163.

47 U.S.C. � 153(24).

47 U.S.C. � 153(53).

Federal Communications Commission FCC 17-166

without change in the form or content of the information as sent and received.�

Prior to the Title II

Order the Commission had long interpreted and applied these terms to classify various forms of Internet

access service as information services�a conclusion affirmed as reasonable by the Supreme Court in

Brand X.

Our action here simply returns to that prior approach.

without change in the form or content of the information as sent and received.�

Prior to the Title II

Order the Commission had long interpreted and applied these terms to classify various forms of Internet

access service as information services�a conclusion affirmed as reasonable by the Supreme Court in

Brand X.

Our action here simply returns to that prior approach.

27. When interpreting a statute it administers, the Commission, like all agencies, �must

operate �within the bounds of reasonable interpretation.� And reasonable statutory interpretation must

account for both �the specific context in which . . . language is used� and �the broader context of the

statute as a whole.��

Below, we first explore the meaning of the �capability� contemplated in the

statutory definition of �information service,� and find that broadband Internet access service provides

consumers the �capability� to engage in all of the information processes listed in the information service

definition. We also find that broadband Internet access service likewise provides information processing

functionalities itself, such as DNS and caching, which satisfy the capabilities set forth in the information

service definition. We then address what �capabilities� we believe are being �offered� by ISPs, and

whether these are reasonably viewed as separate from or inextricably intertwined with transmission, and

find that broadband Internet access service offerings inextricably intertwine these information processing

capabilities with transmission.

28. We find that applying our understanding of the statutory definitions to broadband Internet

access service as it is offered today most soundly leads to the conclusion that it is an information service

r inextricably intertwined with transmission, and

find that broadband Internet access service offerings inextricably intertwine these information processing

capabilities with transmission.

28. We find that applying our understanding of the statutory definitions to broadband Internet

access service as it is offered today most soundly leads to the conclusion that it is an information service.

Although the Internet marketplace has continued to develop in the years since the earliest classification

decisions, broadband Internet access service offerings still involve a number of �capabilities� within the

meaning of the section 3 definition of information services, including critical capabilities that all ISP

customers must use for the service to work as it does today. While many popular uses of the Internet

have shifted over time, the record reveals that broadband Internet access service continues to offer

information service capabilities that typical users both expect and rely upon. Indeed, the basic nature of

Internet service��[p]rovid[ing] consumers with a comprehensive capability for manipulating information

using the Internet via high-speed telecommunications��has remained the same since the Supreme Court

upheld the Commission�s similar classification of cable modem service as an information service twelve

years ago.

29. A body of precedent from the courts and the Commission served as the backdrop for the

1996 Act and informed the Commission�s original interpretation and implementation of the statutory

definitions of �telecommunications,� �telecommunications service,� and �information service.� The

classification decisions in the Title II Order discounted or ignored much of that precedent

ago.

29. A body of precedent from the courts and the Commission served as the backdrop for the

1996 Act and informed the Commission�s original interpretation and implementation of the statutory

definitions of �telecommunications,� �telecommunications service,� and �information service.� The

classification decisions in the Title II Order discounted or ignored much of that precedent. Without

viewing ourselves as formally bound by that prior precedent,

we find it eminently reasonable, as a legal

matter, to give significant weight to that pre-1996 Act precedent in resolving how the statutory definitions

apply to broadband Internet access service, enabling us to resolve statutory ambiguity in a manner that we

believe best reflects Congress�s understanding and intent.

47 U.S.C. � 153(50).

Brand X, 545 U.S. at 998 (finding �reasonable� �the Commission�s understanding of the nature of cable modem

service� and affirming its classification as an information service).

Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2442 (2014).

Brand X, 545 U.S. at 987.

Our analysis thus is not at odds with the statement in USTelecom that the 1996 Act definitions were not �intended

to freeze in place the Commission�s existing classification of various services.� USTelecom, 825 F.3d at 703; see

also, e.g., Free Press Reply at 10 (arguing that the Commission should not �base its current judgments solely in

analogies to proceedings from the Bell era�).

See, e.g., Global Crossing Telecomms., Inc. v. Metrophones Telecomms., Inc., 550 U.S. 45, 48 (2007)

(�[R]egulatory history helps to illuminate the proper interpretation and application� of the provisions of the Act at

(continued�.)

Federal Communications Commission FCC 17-166

a. Broadband Internet Access Service Information Processing

Capabilities

30. We begin by evaluating the �information service� definition and conclude that it

encompasses broadband Internet access service

007)

(�[R]egulatory history helps to illuminate the proper interpretation and application� of the provisions of the Act at

(continued�.)

Federal Communications Commission FCC 17-166

a. Broadband Internet Access Service Information Processing

Capabilities

30. We begin by evaluating the �information service� definition and conclude that it

encompasses broadband Internet access service. Broadband Internet access service includes

�capabilit[ies]� meeting the information service definition under a range of reasonable interpretations of

that term. In other contexts, the Commission has looked to dictionary definitions and found the term

�capability� to be �broad and expansive,� including the concepts of �potential ability� and �the capacity

to be used, treated, or developed for a particular purpose.�

Because broadband Internet access service

necessarily has the capacity or potential ability to be used to engage in the activities within the

information service definition��generating, acquiring, storing, transforming, processing, retrieving,

utilizing, or making available information via telecommunications�

�we conclude that it is best

understood to have those �capabilit[ies].� The record reflects that fundamental purposes of broadband

Internet access service are for its use in �generating� and �making available� information to others, for

example through social media and file sharing;

�acquiring� and �retrieving� information from sources

such as websites and online streaming and audio applications, gaming applications, and file sharing

applications;

�storing� information in the cloud and remote servers, and via file sharing applications;

�transforming� and �processing� information such as by manipulating images and documents, online

gaming use, and through applications that offer the ability to send and receive email, cloud computing and

(Continued from previous page)

issue there); Brand X, 545 U.S

sharing

applications;

�storing� information in the cloud and remote servers, and via file sharing applications;

�transforming� and �processing� information such as by manipulating images and documents, online

gaming use, and through applications that offer the ability to send and receive email, cloud computing and

(Continued from previous page)

issue there); Brand X, 545 U.S. at 992-93 (�Congress passed the definitions in the Communications Act against the

background of [the Commission�s Computer Inquiries] regulatory history, and we may assume that the parallel

terms �telecommunications service� and �information service� substantially incorporated their meaning, as the

Commission has held.�); ADTRAN Comments at 10 (�This precedent is relevant not simply as stare decisis, but

because the Commission in those previous decisions had analyzed the facts, nature of the services, and the

legislative interplay and history to conclude that BIAS is an information service.�); ACA Comments at 44.

Consistent with this approach as a traditional tool of statutory interpretation, we reject arguments that suggest that

we should disregard this precedent largely out-of-hand. See, e.g., Free Press Reply at 11 (�[T]he MFJ and Computer

Inquiries were based in large part on the Commission�s interpretation of its own rules and authority, but the passage

of the 1996 Act superseded them.�); Public Knowledge Reply at 32 (�[T]he 1996 Telecommunications Act

supersedes the MFJ.�). More generally, of course, this precedent�Brand X in particular�demonstrates that the Act

does not compel a telecommunications service classification. See U.S. Telecom Ass�n v. FCC, 855 F.3d 381, 384

(D.C. Cir. 2017) (Srinivasan, J., and Tatel, J., concurring in the denial of rehearing en banc) (�The issue in Brand X

was whether the Communications Act compelled the FCC to classify cable broadband ISPs as telecommunications

providers subject to regulatory treatment as common carriers

not compel a telecommunications service classification. See U.S. Telecom Ass�n v. FCC, 855 F.3d 381, 384

(D.C. Cir. 2017) (Srinivasan, J., and Tatel, J., concurring in the denial of rehearing en banc) (�The issue in Brand X

was whether the Communications Act compelled the FCC to classify cable broadband ISPs as telecommunications

providers subject to regulatory treatment as common carriers. The Court answered that question no.�).

Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, et al., CC Docket Nos.

01-338, 98-147, 96-98, Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, 18

FCC Rcd 16978, 17020, para. 54 & n.194 (2003) (Triennial Review Order), rev�d on other grounds U.S. Telecom

Ass�n v. FCC, 359 F.3d 554 (D.C. Cir. 2004).

47 U.S.C. � 153(24).

See, e.g., ACA Comments, Exh. B, Decl. of Chris Kyle at 2, Exh. C, Decl. of Brian Lynch at 2, Exh. E, Decl. of

Steve Timcoe at 2; Cisco Comments at 14, n.43; Comcast Comments at 13; CenturyLink Comments at 23; Cox

Comments at 9; Free State Foundation Comments at 10; Mobile Future Comments at 10-11; Verizon Comments at

35.

See, e.g., Cisco Comments at 14, n.43; Free State Foundation Comments at 10; Mobile Future Comments at 10-

11; ADTRAN Comments at 5-6; CenturyLink Comments at 21-23; Verizon Comments at 35; Comcast Comments at

12; Cox Comments at 9; NCTA Comments at 13-14.

See, e.g., Verizon Comments at 35; CenturyLink Comments at 23; Cisco Comments at 14, n.43; Comcast

Comments at 13; Cox Comments at 9; Free State Foundation Comments at 10; Mobile Future Comments at 10-11;

NCTA Comments at 13-14.

Federal Communications Commission FCC 17-166

machine learning capabilities;

and �utilizing� information by interacting with stored data.

These are

just a few examples of how broadband Internet access service enables customers to generate, acquire,

store, transform, process, retrieve, utilize, and make available information

Future Comments at 10-11;

NCTA Comments at 13-14.

Federal Communications Commission FCC 17-166

machine learning capabilities;

and �utilizing� information by interacting with stored data.

These are

just a few examples of how broadband Internet access service enables customers to generate, acquire,

store, transform, process, retrieve, utilize, and make available information. These are not merely

incidental uses of broadband Internet access service�rather, because it not only has �the capacity to be

used� for these �particular purpose[s]� but was designed and intended to do so,

we find that broadband

Internet access is best interpreted as providing customers with the �capability� for such interactions with

third party providers.

31. We also find that broadband Internet access is an information service irrespective of

whether it provides the entirety of any end user functionality or whether it provides end user functionality

in tandem with edge providers.

We do not believe that Congress, in focusing on the �offering of a

capability,� intended the classification question to turn on an analysis of which capabilities the end user

selects. Further, we are unpersuaded by commenters who assert that in order to be considered an

�information service,� an ISP must not only offer customers the �capability� for interacting with

information that may be offered by third parties (�click-through�), but must also provide the ultimate

content and applications themselves.

Although there is no dispute that many edge providers likewise

perform functions to facilitate information processing capabilities,

they all depend on the combination

of information-processing and transmission that ISPs make available through broadband Internet access

service.

The fundamental purpose of broadband Internet access service is to �enable a constant flow of

See, e.g., ACA Comments, Exh. B, Decl. of Chris Kyle at 2, Exh. C, Decl

orm functions to facilitate information processing capabilities,

they all depend on the combination

of information-processing and transmission that ISPs make available through broadband Internet access

service.

The fundamental purpose of broadband Internet access service is to �enable a constant flow of

See, e.g., ACA Comments, Exh. B, Decl. of Chris Kyle at 2, Exh. C, Decl. of Brian Lynch at 2, Exh. E, Decl. of

Steve Timcoe at 2 (asserting that their broadband Internet access services grants their customers the capability to

transform content at their request); Cisco Comments at 14, n.43 (asserting that broadband Internet access users

transform and process information every time they input a plaintext command into a browser or search engine); Cox

Comments at 9; Mobile Future Comments at 10-11; CenturyLink Comments at 22-24; Free State Foundation

Comments at 10; Verizon Comments at 35; Comcast Comments at 13.

See, e.g., CenturyLink Comments at 21- 22; Cisco Comments at 14, n.43; Comcast Comments at 13; Cox

Comments at 9; Free State Foundation Comments at 10; Mobile Future Comments at 11; NCTA Comments at 13-

14.

Triennial Review Order, 18 FCC Rcd at 17020, para. 54 n.194 (discussing definition of �capability�).

AT&T Comments at 3, 4 (�Giving consumers the �capability for� such interactions with third party providers is of

course the very essence of broadband Internet access.�); see also NCTA Comments at 13; Comcast Comments at 12;

Verizon Comments at 35; Charter Comments at 14; NCTA Comments at 13; Reason Foundation Comments at 9;

ADTRAN at 5-6; Alaska Communications Comments at 4; ACA Comments at 50-51; CenturyLink Comments at

20; CTIA Comments at 28-29; Free State Foundation Comments at 2; ITIF Comments at 12-13; Inmarsat Comments

at 9-10; LGBT Technology Partnership Comments at 4; Mobile Future Comments at 10-11; T-Mobile Comments at

13; AT&T Reply at 60; Comcast Reply at 4-6; CTIA Reply at 22; Free State Foundation Comments at 10; Cox

ations Comments at 4; ACA Comments at 50-51; CenturyLink Comments at

20; CTIA Comments at 28-29; Free State Foundation Comments at 2; ITIF Comments at 12-13; Inmarsat Comments

at 9-10; LGBT Technology Partnership Comments at 4; Mobile Future Comments at 10-11; T-Mobile Comments at

13; AT&T Reply at 60; Comcast Reply at 4-6; CTIA Reply at 22; Free State Foundation Comments at 10; Cox

Reply at 3. We further observe that even though the record reflects that broadband Internet access service possesses

all of the statutorily enumerated �capabilities,� the use of the conjunction �or� among the listed capabilities requires

that a service only offer one capability to bring a service within the statutory definition of information service. See

Comcast Comments at 19; Free State Foundation Comments at 10, 12; AT&T Comments at 3.

See NCTA Reply at 6.

See Public Knowledge Comments at 27; Internet Engineers Comments at 20-21; CDT Comments at 5; see also

OTI New America Comments at 29-30 (asserting that when �information service� was defined in the MFJ, the

phrase �meant that the information service provider itself is engaged in the processing of the information [but] the

examples listed in the NPRM are not that,� and �[i]f a telecommunications service were transformed into an

information service because it made available the information services of others, then no general use service could

ever constitute a telecom service.� (emphasis in original)); Peha Reclassification Comments at 1; Ben Kreuter

Comments at 4; New Media Rights Comments at 7; Netflix Reply at 4.

Cf., e.g., Mitchell Lazarus Comments at 2 (�Examples are Facebook, Wikipedia, and almost any other website.�)

service because it made available the information services of others, then no general use service could

ever constitute a telecom service.� (emphasis in original)); Peha Reclassification Comments at 1; Ben Kreuter

Comments at 4; New Media Rights Comments at 7; Netflix Reply at 4.

Cf., e.g., Mitchell Lazarus Comments at 2 (�Examples are Facebook, Wikipedia, and almost any other website.�).

See Comcast Comments at 14 (�When a consumer uploads new content to Facebook, for instance, it is not only

Facebook that provides the information-processing functionality necessary for such activity; it is also the BIAS

(continued�.)

Federal Communications Commission FCC 17-166

computer-mediated communications between end-user devices and various servers and routers to

facilitate interaction with online content.�

32. From the earliest decisions classifying Internet access service, the Commission

recognized that even when ISPs enable subscribers to access third party content and services, that can

constitute �a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing,

or making available information via telecommunications.�

As the Commission explained in the Stevens

Report, �[s]ubscribers can retrieve files from the World Wide Web, and browse their contents, because

their service provider offers the �capability for . . . acquiring, . . . retrieving [and] utilizing . . .

information.��

Thus, even where an ISP enables end-users to access the content or applications of a

third party, the Commission nonetheless found that constituted the requisite information service

�capability.�

When the Title II Order attempted to evaluate customer perception based on their usage of

broadband Internet access service, it failed to persuasively grapple with the relevant implications of prior

Commission classification precedent

access the content or applications of a

third party, the Commission nonetheless found that constituted the requisite information service

�capability.�

When the Title II Order attempted to evaluate customer perception based on their usage of

broadband Internet access service, it failed to persuasively grapple with the relevant implications of prior

Commission classification precedent. The Title II Order argued that broadband Internet access service

primarily is used to access content, applications, and services from third parties unaffiliated with the ISP

in support of the view that customers perceive it as a separate offering of telecommunications.

The Title

(Continued from previous page)

provider whose information-processing capabilities enable consumers to connect and interact with Facebook�s

servers in the first place.�).

NCTA Reply at 7; see also Free State Foundation Reply at 30 (explaining that ISPs� coordination with third

parties, by itself, does not alter the �nature of the functionality or service that broadband ISPs ultimately offer to end

users. In such circumstances, it is the broadband ISPs that combine third-party supplied functionalities with their

own and ultimately provide the integrated service offering to end users�with end users routinely unaware of

whether or which particular functions might happen to be performed by third parties rather than broadband ISPs�);

infra para. 56.

See, e.g., Wireless Broadband Internet Access Order, 22 FCC Rcd at 5910, para. 25; BPL-Enabled Broadband

Order, 21 FCC Rcd at 13285-86, para. 9; Wireline Broadband Classification Order, 20 FCC Rcd at 14860-61,

para. 9; Cable Modem Order, 17 FCC Rcd at 4821-22, para. 37; Stevens Report, 13 FCC Rcd at 11537, para. 76.

Stevens Report, 13 FCC Rcd at 11538, para. 76 (emphasis added); see also id. at 11538-39, para

oadband Internet Access Order, 22 FCC Rcd at 5910, para. 25; BPL-Enabled Broadband

Order, 21 FCC Rcd at 13285-86, para. 9; Wireline Broadband Classification Order, 20 FCC Rcd at 14860-61,

para. 9; Cable Modem Order, 17 FCC Rcd at 4821-22, para. 37; Stevens Report, 13 FCC Rcd at 11537, para. 76.

Stevens Report, 13 FCC Rcd at 11538, para. 76 (emphasis added); see also id. at 11538-39, para. 78 (explaining

with specific respect to e-mail that the ISP �does not send that message directly to the recipient� akin to a

��paperless fax,�� but instead sends it to the recipient�s mail server, which stores it until it is further stored, rewritten,

forwarded or otherwise processed). Attempts to distinguish the Commission�s classification precedent thus are

unfounded insofar as they fail to account for this aspect of the Commission�s analysis in those orders. See, e.g.,

Scott Jordan Reply at 9 (�The Stevens Report concluded that dial-up Internet access service was an information

service because ISP-provided webpage hosting, webpage caching, and email offered such capabilities, not because

dial-up Internet access service enabled an end user to utilize third party information service applications.� (footnotes

omitted)).

See, e.g., ACA Comments at 43 (��[O]ffering of a capability� for engaging in all of these activities� such as using

Facebook or YouTube �is exactly what is provided by broadband Internet access� (quoting U.S. Telecom Ass�n v.

FCC, 855 F.3d 381, 395 (D.C. Cir. 2017) (Brown, J., dissenting from denial of rehearing en banc) and citing Stevens

Report, 13 FCC Rcd at 11537-38, para. 76); AT&T Comments at 69-70 (�As the Commission and Solicitor General

explained in Brand X, Internet access inherently offers the capability to �click[] through� to third-party websites and

obtain the �contents of the requested web page[],� allowing a subscriber to �interact[] with stored data. . .

ng from denial of rehearing en banc) and citing Stevens

Report, 13 FCC Rcd at 11537-38, para. 76); AT&T Comments at 69-70 (�As the Commission and Solicitor General

explained in Brand X, Internet access inherently offers the capability to �click[] through� to third-party websites and

obtain the �contents of the requested web page[],� allowing a subscriber to �interact[] with stored data. . . . The

Commission�s reclassification decision erroneously turned this point on its head, finding that Internet access is a

pure transmission service because it is �useful to consumers today primarily as a conduit for reaching modular

content, applications, and services that are provided by unaffiliated third parties.� To the contrary, it is precisely

because Internet access is useful to consumers for these purposes that it falls squarely within the statutory definition

of information service.�); USTelecom Comments at 31-32; Comcast Reply at 11 (�[T]he definition of �information

service� nowhere requires that ISP capabilities be solely responsible for any end-user functionality; it requires only

that ISPs �offer� an integrated �capability� beyond mere transmission, which they unquestionably do.�); Cox Reply

at 5-6; NCTA Reply at 6-7; Verizon Reply at 32, 34.

See, e.g., Title II Order, 30 FCC Rcd at 5753-55, paras. 347-50; see also USTelecom, 825 F.3d at 698-99; AARP

Comments at 91; Atty�s General et al. Comments at 13-15; Internet Engineers Comments at 13; OTI New America

(continued�.)

Federal Communications Commission FCC 17-166

II Order offers no explanation as to why its narrower view of �capability� was more reasonable than the

Commission�s previous, long-standing view (other than seeking to advance the classification outcome

that Order was driving towards). Consequently, the Title II Order essentially assumed away the legal

question of whether end-users perceive broadband Internet access service as offering them the �capability

for . . . acquiring, . .

narrower view of �capability� was more reasonable than the

Commission�s previous, long-standing view (other than seeking to advance the classification outcome

that Order was driving towards). Consequently, the Title II Order essentially assumed away the legal

question of whether end-users perceive broadband Internet access service as offering them the �capability

for . . . acquiring, . . . retrieving [and] utilizing . . . information� under the broader reading of �capability�

in prior Commission precedent.

33. But even if �capability� were understood as requiring more of the information processing

to be performed by the classified service itself, we find that broadband Internet access service meets that

standard. Not only do ISPs offer end users the capability to interact with information online in each and

every one of the ways set forth above, they also do so through a variety of functionally integrated

information processing components that are part and parcel of the broadband Internet access service

offering itself.

In particular, we conclude that DNS and caching functionalities, as well as certain other

information processing capabilities offered by ISPs,

are integrated information processing capabilities

offered as part of broadband Internet access service to consumers today.

100

34. DNS. We find that DNS is an indispensable functionality of broadband Internet access

service.

101

DNS is a core function of broadband Internet access service that involves the capabilities of

generating, acquiring, storing, transforming, processing, retrieving, utilizing and making available

(Continued from previous page)

Comments at 28; Public Knowledge Comments at 31-32, 39; RISE Stronger Comments at 15-16; Electronic Frontier

Foundation (EFF) Comments at 17-19; OTI New America Reply at 18-19

ore function of broadband Internet access service that involves the capabilities of

generating, acquiring, storing, transforming, processing, retrieving, utilizing and making available

(Continued from previous page)

Comments at 28; Public Knowledge Comments at 31-32, 39; RISE Stronger Comments at 15-16; Electronic Frontier

Foundation (EFF) Comments at 17-19; OTI New America Reply at 18-19.

See, e.g., CenturyLink Comments at 24; AT&T Comments at 4 (�But even if ISPs had to provide �data-

processing� or �data storage� functionalities of their own before Internet access could qualify as an information

service, Internet access would still qualify as such because it invariably includes such functionalities (e.g., DNS

and/or caching).�); Comcast Comments at 7-8 (�Not only does BIAS still offer end users the capability to interact

with information online in each and every one of the ways set forth in the Act�s �information service� definition, it

also does so through a variety of functionally integrated information-processing components�such as Domain

Name Service (�DNS�) functionalities; spam, malware, and other consumer protection security features; caching;

email; storage; and other capabilities�that are part and parcel of the �offer� of broadband service and that confirm

the correctness of the information service classification.�).

In addition to DNS and caching, the record reflects that ISPs may also offer a variety of additional features that

consist of information processing functionality inextricably intertwined with the underlying service. See, e.g.,

CenturyLink Comments at 26. These additional features include, and are not limited to: email, speed test servers,

backup and support services, geolocation-based advertising, data storage, parental controls, unique programming

content, spam protection, pop-up blockers, instant messaging services, on-the-go access to Wi-Fi hotspots, and

various widgets, toolbars, and applications

See, e.g.,

CenturyLink Comments at 26. These additional features include, and are not limited to: email, speed test servers,

backup and support services, geolocation-based advertising, data storage, parental controls, unique programming

content, spam protection, pop-up blockers, instant messaging services, on-the-go access to Wi-Fi hotspots, and

various widgets, toolbars, and applications. See, e.g., CenturyLink Comments at 24-26; AT&T Comments at 80-81.

While we do not find the offering of these information processing capabilities determinative of the classification of

broadband Internet access service, their inclusion in the broadband Internet access service, and the capabilities and

functionalities necessary to make these features possible, further support the �information service� classification.

See CTIA Comments at 40; AT&T Reply at 77 (�The additional functionalities offered by most ISPs are plainly

information services, and because they are routinely �offer[ed]� with Internet access as part of a service bundle, they

independently compel an �information service� classification� (citation omitted)); Comcast Comments at 7-8;

CenturyLink Comments at 24.

100

See Peha Reclassification Comments at 5 (�It is not relevant which services were offered or used decades ago. It

is the Internet services and technology of 2017 that matter.�); cf. Commercial Network Services Comments at 1

(�The definition of �information service� was created by the telecommunications act of 1996, at a time when

CompuServe, America Online and Prodigy were how America�s spent their time online and all were accessed by

dial-up telephone modem company.�); ACLU/EFF Reply at 13; OTI New America Reply at 8.

101

While we accept that DNS is not necessary for transmission, we reject assertions that it is not indispensable to the

broadband Internet access service customers use�and expect�today. But see, e.g., Peha Reclassification

Comments at 13, 18; CDT Comments at 8-9; ITIF Comments at 13

ll were accessed by

dial-up telephone modem company.�); ACLU/EFF Reply at 13; OTI New America Reply at 8.

101

While we accept that DNS is not necessary for transmission, we reject assertions that it is not indispensable to the

broadband Internet access service customers use�and expect�today. But see, e.g., Peha Reclassification

Comments at 13, 18; CDT Comments at 8-9; ITIF Comments at 13.

Federal Communications Commission FCC 17-166

information.

102

DNS is used to facilitate the information retrieval capabilities that are inherent in Internet

access.

103

DNS allows ��click through� access from one web page to another, and its computer processing

functions analyze user queries to determine which website (and server) would respond best to the user�s

request.�

104

And �[b]ecause it translates human language (e.g., the name of a website) into the numerical

data (i.e., an IP address) that computers can process, it is indispensable to ordinary users as they navigate

the Internet.�

105

Without DNS, a consumer would not be able to access a website by typing its advertised

name (e.g., fcc.gov or cnn.com).

106

The Brand X Court recognized the importance of DNS, concluding

that �[f]or an Internet user, �DNS is a must. . . . [N]early all of the Internet�s network services use DNS.

That includes the World Wide Web, electronic mail, remote terminal access, and file transfer.��

107

While

ISPs are not the sole providers of DNS services,

108

the vast majority of ordinary consumers rely upon the

DNS functionality provided by their ISP,

109

and the absence of ISP-provided DNS would fundamentally

change the online experience for the consumer

ork services use DNS.

That includes the World Wide Web, electronic mail, remote terminal access, and file transfer.��

107

While

ISPs are not the sole providers of DNS services,

108

the vast majority of ordinary consumers rely upon the

DNS functionality provided by their ISP,

109

and the absence of ISP-provided DNS would fundamentally

change the online experience for the consumer.

110

We also observe that DNS, as it is used today, provides

102

See Nominum Comments at 2; Sandvine Comments at 2 (explaining that such servers generate recursive DNS

queries, acquire and store domain name information, transform and process end user queries, retrieve domain name

data from the Internet, utilize domain name data, and make available information of various types that is stored in

the DNS); AT&T Comments at 73 (asserting that DNS provides ISPs with data-processing and data storage

functionalities of its own).

103

See CTIA Comments at 39; AT&T Comments at 74-75.

104

AT&T Comments at 74.

105

AT&T Comments at 73 (citations omitted); see also Reason Foundation Comments at 9-10 (�DNS is of

fundamental importance to the functionality of the Internet, enabling users� devices, though web browsers, search

engines and other tools, to identify and connect to websites and web pages. . . . Eliminating DNS would likely

dramatically reduce the value of the entire domain naming system, harming both providers of content and services

and users of that content and those services.�).

106

AT&T Comments at 74-75; see also Farsight Comments at 2 (explaining that �With the Domain Name System,

you�re able to easily get to Google by just typing in google.com. Without the Domain Name System you�d have to

remember and enter a numeric IPv4 address such as 172.217.7.228, or, even worse, an IPv6 address such as

2607:f8b0:4004:802::2004

ers of that content and those services.�).

106

AT&T Comments at 74-75; see also Farsight Comments at 2 (explaining that �With the Domain Name System,

you�re able to easily get to Google by just typing in google.com. Without the Domain Name System you�d have to

remember and enter a numeric IPv4 address such as 172.217.7.228, or, even worse, an IPv6 address such as

2607:f8b0:4004:802::2004. This would fundamentally (and negatively) change a broadband Internet user�s online

experience.�); Fred Baker Comments at 2; Sandvine Comments at 1; Cox Comments at 11; Wireline Broadband

Classification Order, 20 FCC Rcd at 14864, para. 15 (�[A]n end user of wireline broadband Internet access service

cannot reach a third party�s web site without access to the Domain Nam[e] Service (DNS) capability. . . . The end

user therefore receives more than transparent transmission whenever he or she accesses the Internet.�); see also

Nominum Reply at 3.

107

Brand X, 545 U.S. at 999 (quoting P. Albitz & C. Liu, DNS and BIND 10 (4

ed. 2001)); see also AT&T

Comments at 75 (quoting Brand X, 545 U.S. at 998, 1000).

108

See, e.g., Internet Engineers Comments at 26; Commercial Network Services Comments at 3; Atkins Comments

at 1-2; David Ha Comments at 3; Benjamin Kreuter Comments at 8.

109

See, e.g., Nominum Reply at 4 (�[A]pproximately 97 percent of consumers receive their DNS service through

their ISP�s broadband offering. . . . This sky-high adoption of and reliance on the DNS service provided by ISPs,

particularly when there are other alternatives on the market, many of which are free, indicates that consumers want

and expect their broadband service to include DNS. Much as consumers expect to purchase a car with a steering

wheel and tires, consumers expect a turnkey broadband service from their ISPs and that includes DNS services.�)

on of and reliance on the DNS service provided by ISPs,

particularly when there are other alternatives on the market, many of which are free, indicates that consumers want

and expect their broadband service to include DNS. Much as consumers expect to purchase a car with a steering

wheel and tires, consumers expect a turnkey broadband service from their ISPs and that includes DNS services.�).

110

See, e.g., Farsight Comments at 2; Charter Comments at 14-15 (explaining that DNS is more than merely

incidental to the broadband Internet service that ISPs provide, and that without DNS, broadband Internet access

would cease to resemble the seamless information retrieval service to which customers have become accustomed);

Sandvine Comments at 2 (�Yes, it is correct that for the overwhelming majority of customers, the ISP is performing

the DNS function. It is a rare customer in the United States that knows how to manually change their DNS settings,

takes time to do so, and does so on all of their many connected devices.�); AT&T Comments at 74 (asserting that

�[v]irtually all consumers today rely on their broadband ISP to include DNS look-up functionality as an integral part

of broadband Internet access service� and that �[m]ass-market consumers would find broadband services without

(continued�.)

Federal Communications Commission FCC 17-166

more than a functionally integrated address-translation capability, but also enables other capabilities

critical to providing a functional broadband Internet access service to the consumer, including for

example, a variety of underlying network functionality information associated with name service,

alternative routing mechanisms, and information distribution.

111

35. The treatment of similar functions in MFJ precedent bolsters our conclusion

apability, but also enables other capabilities

critical to providing a functional broadband Internet access service to the consumer, including for

example, a variety of underlying network functionality information associated with name service,

alternative routing mechanisms, and information distribution.

111

35. The treatment of similar functions in MFJ precedent bolsters our conclusion.

112

particular, when analyzing �gateway� functionalities by which BOCs would provide end-users with

access to third party information services, the MFJ court found that �address translation,� which enabled

�the consumer [to] use an abbreviated code or signal . . . in order to access the information service

provider� such as through �the translation of a mnemonic code into [a] telephone number,� rendered

gateways an information service.

113

The �address translation� gateway function appears highly analogous

to the DNS function of broadband Internet access service, which enables end users to use easier-to-

(Continued from previous page)

DNS utterly useless for accessing the Internet�); Satchell Comments at 26 (�DNS is very useful to the customer.

The use of names instead of numbers is key to the acceptance of the Web by the general public. Without DNS, the

Internet would not be as ubiquitous as it is today.�); see also Sandvine Comments at 3 (�ISP DNS servers tend to be

superior to 3rd party DNS servers simply because they reside within the ISP network and are distributed much more

widely and locally than 3rd party DNS servers, which tend to be centralized in just a few datacenters to serve the

entire U.S. As a result, queries to a 3rd party DNS may traverse a large section of the country to get to a 3rd party

DNS. As the industry knows, the trend is towards more locally distributed content and services; the closer they are

to the end user the better the performance will be.�).

111

See CenturyLink App. 2, Bronsdon Decl

d to be centralized in just a few datacenters to serve the

entire U.S. As a result, queries to a 3rd party DNS may traverse a large section of the country to get to a 3rd party

DNS. As the industry knows, the trend is towards more locally distributed content and services; the closer they are

to the end user the better the performance will be.�).

111

See CenturyLink App. 2, Bronsdon Decl. at 7-8 (asserting that DNS enables a variety of underlying network

functionality information such as name service (NS), mail exchange (MX) and service (SRV) records; enables

mechanisms, such as canonical name (CNAME), delegation name (DNAME), and pointer (PTR) records for

selecting alternative routes to information; and facilitates information distribution or content delivery systems); Cox

Comments at 10, 11; Comcast Comments 15-16; Farsight Comments at 3 (�DNS is widely used as more than �just�

an addressing scheme.�).

112

Despite the fact that the telecommunications management exception (and information service definition more

broadly) was drawn most directly from the MFJ, the Title II Order essentially ignored MFJ precedent when

concluding that DNS fell within the statutory telecommunications management exception. See generally Title II

Order, 30 FCC Rcd at 5765-69, 5770, paras. 365-69, 371; see also, e.g., INCOMPAS Comments at 54-55 (arguing

that finding DNS to fall within the telecommunications management exception is �in keeping with Computer II�);

cf. id. at 56 (�[A]s Justice Scalia argued, �DNS �is scarcely more than routing information, which is expressly

excluded from the definition of �information service� by the telecommunications systems management exception set

out in the last clause of section 3(24) of the Act.��); NASUCA Comments at 16; OTI New America Comments at

29-30

nagement exception is �in keeping with Computer II�);

cf. id. at 56 (�[A]s Justice Scalia argued, �DNS �is scarcely more than routing information, which is expressly

excluded from the definition of �information service� by the telecommunications systems management exception set

out in the last clause of section 3(24) of the Act.��); NASUCA Comments at 16; OTI New America Comments at

29-30. In addition, even the Title II Order�s limited use of Computer Inquiries precedent focused mostly on

relatively high-level Commission statements about the general sorts of capabilities that could be basic (or adjunct-to-

basic) or drew analogies to specific holdings that are at best ambiguous as to their application to broadband Internet

access service. See, e.g., Title II Order, 31 FCC Rcd at 5768-69, 5771-72, paras. 367, 373, 375; see also, e.g.,

Barbara van Schewick and Patrick Leerssen Reply at 29-31 (citing general statements in Computer Inquiries

precedent regarding �data processing features necessary for the operation of a packet-switched network�).

113

U.S. v. West. Elec. Co., Inc., 673 F. Supp. 525, 593 & n.307 (D.D.C. 1987) (MFJ Initial Gateway Decision), aff�d

in part and rev�d in part on other grounds, 900 F.2d 283 (D.C. Cir. 1990). We recognize that gateway

functionalities and broadband Internet access service are not precisely coextensive in scope. See, e.g., Public

Knowledge Reply at 33 (arguing that �broadband internet does not provide, for example, �billing management� for

all the edge services that users access, or �introductory information content��). We do, however, find similarities

between functionalities such as address translation and storage and retrieval to key functionalities provided by ISPs

as part of broadband Internet access service, and we conclude the court found such gateway and similar

functionalities independently sufficient to warrant an information service classification under the MFJ. See, e.g.,

U.S. v. West. Elec. Co., 714 F. Supp

find similarities

between functionalities such as address translation and storage and retrieval to key functionalities provided by ISPs

as part of broadband Internet access service, and we conclude the court found such gateway and similar

functionalities independently sufficient to warrant an information service classification under the MFJ. See, e.g.,

U.S. v. West. Elec. Co., 714 F. Supp. 1, 19-20 (D.D.C. 1988) (MFJ Gateway/Storage & Retrieval Decision)

(analyzing storage and retrieval separately from other gateway functionalities); MFJ Initial Gateway Decision, 673

F. Supp. at 587 n.275 (observing that the transmission of information services at issue there �involves a number of

functions that by any fair reading of the term �information services� would be included in that definition�).

Federal Communications Commission FCC 17-166

remember domain names to initiate access to the associated IP addresses of edge providers. That MFJ

precedent, neglected by the Title II Order, thus supports our finding that the inclusion of DNS in

broadband Internet access service offerings likewise renders that service an information service.

114

36. We thus find that the Title II Order erred in finding that DNS functionalities fell within

the telecommunications systems management exception to the definition of �information service.�

115

That exception from the statutory information service definition was drawn from the language of the

MFJ,

116

and was understood as �directed at internal operations, not at services for customers or end

users.�

117

We interpret the concepts of �management, control, or operation�

118

in the telecommunications

management exception consistent with that understanding

service.�

115

That exception from the statutory information service definition was drawn from the language of the

MFJ,

116

and was understood as �directed at internal operations, not at services for customers or end

users.�

117

We interpret the concepts of �management, control, or operation�

118

in the telecommunications

management exception consistent with that understanding. Applying that interpretation, we find the

record reflects that little or nothing in the DNS look-up process is designed to help an ISP �manage� its

network; instead, DNS functionalities �provide stored information to end users to help them navigate the

Internet.�

119

As AT&T explains: �When an end user types a domain name into his or her browser and

sends a DNS query to an ISP, . . . the ISP . . . converts the human-language domain name into a numerical

IP address, and it then conveys that information back to the end user . . . [who] (via his or her browser)

thereafter sends a follow-up request for the Internet resources located at that numerical IP address.�

120

DNS does not merely �manage� a telecommunications service, as some commenters assert,

121

but rather is

114

We rely on this analogy between DNS and particular functions classified under pre-1996 Act precedent not

because the technologies are identical in all particulars, but because they share the same relevant characteristics for

purposes of making a classification decision under the Act. Given the close fit between DNS and the address

translation function classified as an information service under the MFJ coupled with the fact that the statutory

information service definition (and telecommunications management exception) was drawn more directly from the

MFJ, we find the MFJ precedent entitled to more weight than analogies to Computer Inquiries precedent

ision under the Act. Given the close fit between DNS and the address

translation function classified as an information service under the MFJ coupled with the fact that the statutory

information service definition (and telecommunications management exception) was drawn more directly from the

MFJ, we find the MFJ precedent entitled to more weight than analogies to Computer Inquiries precedent. We thus

are not persuaded by arguments seeking to analogize DNS to directory assistance, which the Commission classified

as �adjunct-to-basic� under the Computer Inquiries. See, e.g., OTI New America Comments at 33-34 (�The parallel

in telephone service is computer-assisted directory assistance, where a user can find the phone number (like an IP

address in BIAS) of a person based on their name (like a domain name in BIAS). This service has long been

adjunct-to-basic and did not transform telephone service into an information service. DNS similarly does not direct

a classification of BIAS as an information service.�); Barbara van Schewick and Patrick Leerssen Reply at 32-33;

Harold Hallikainen Comments at 13; Peha Reclassification Comments at 19; Ben Kreuter Comments at 4;

Commercial Network Services Comments at 3; Satchell Comments at 26.

115

Title II Order, 30 FCC Rcd at 5765-66, para. 366.

116

The court�s definition of information services excluded capabilities �for the management, control, or operation of

a telecommunication system or the management of a telecommunications service.� MFJ Initial Decision, 552 F.

Supp. at 229. Under the Communications Act, the definition of �information services� includes an identically-

worded �telecommunications management� exception. 47 U.S.C. � 153(24). Commission precedent and legislative

history likewise recognize that the definition was drawn from the MFJ. See, e.g., Non-Accounting Safeguards

Order, 11 FCC Rcd at 21954, para. 99; H.R. Conf. Rep. No. 104-458 at 126 (Jan

. Under the Communications Act, the definition of �information services� includes an identically-

worded �telecommunications management� exception. 47 U.S.C. � 153(24). Commission precedent and legislative

history likewise recognize that the definition was drawn from the MFJ. See, e.g., Non-Accounting Safeguards

Order, 11 FCC Rcd at 21954, para. 99; H.R. Conf. Rep. No. 104-458 at 126 (Jan. 31, 1996) (��Information service�

and �telecommunications� are defined based on the definition used in the Modification of Final Judgment.�).

117

United States v. Am. Tel. & Tel. Co., 1989 WL 119060, *1 (D.D.C. Sept. 11, 1989) (citing Department of Justice,

United States v. Western Electric Company, Inc., and American Telephone & Telegraph Company; Competitive

Impact Statement in Connection With Proposed Modification of Final Judgment, Notice, 47 Fed. Reg. 7170, 7176

(Feb. 17, 1982) (DOJ Competitive Impact Statement)).

118

Although the exception is worded in terms of �management, control, or operation,� for convenience here we refer

to those collectively at times as �management� or the like.

119

AT&T Comments at 77-78; see also T-Mobile Comments at 14; Charter Comments at 13-14; CTIA Comments at

39-40; Harold Hallikainen Comments at 8; Verizon Comments at 58; AT&T Reply at 70-71; Cox Reply at 6-7;

CTIA Reply at 28-30; NCTA Reply at 9-10; Comcast Comments at 19.

120

AT&T Comments at 78.

121

CDT Comments at 8; ITIF Comments at 13; New Media Rights Comments at 4-5 (�[B]ecause these services

[like DNS, DHCP, caching, and others] are necessary to route, manage, or otherwise use BIAS, they fall under the

(continued�.)

Federal Communications Commission FCC 17-166

a function that is useful and essential to providing Internet access for the ordinary consumer.

122

We are

persuaded that �[w]ere DNS simply a management function, this would not be the case.�

123

Comparing

functions that would fall within the exception illustrates the distinction

otherwise use BIAS, they fall under the

(continued�.)

Federal Communications Commission FCC 17-166

a function that is useful and essential to providing Internet access for the ordinary consumer.

122

We are

persuaded that �[w]ere DNS simply a management function, this would not be the case.�

123

Comparing

functions that would fall within the exception illustrates the distinction. For example, in contrast to

DNS�s interaction with users and their applications,

124

�non-user, management-only protocols might

include things such as Simple Network Management Protocol (SNMP), Network Control Protocol

(NETCONF), or DOCSIS bootfiles for controlling the configuration of cable modems.�

125

These

protocols support services that manage the network independent of the transmission of information

initiated by a user.

126

37. The Title II Order drew erroneous conclusions from Computer Inquiries precedent and

too quickly rejected objections to its treatment of DNS as meeting the telecommunications management

exception.

127

Under the Computer Inquiries framework, the Commission held that some capabilities

�may properly be associated with basic [common carrier] service without changing its nature, or with an

enhanced service without changing the classification of the latter as unregulated under Title II of the

Act.�

128

These commonly came to be known as �adjunct� capabilities.

129

The Commission has held that

functions it had classified as �adjunct-to-basic� under the Computer Inquiries framework will fall within

the statutory telecommunications management exception to the information service definition.

130

Drawing loose analogies to certain functions described as adjunct-to-basic under Commission precedent,

the Title II Order held that DNS fell within the telecommunications management exception.

it had classified as �adjunct-to-basic� under the Computer Inquiries framework will fall within

the statutory telecommunications management exception to the information service definition.

130

Drawing loose analogies to certain functions described as adjunct-to-basic under Commission precedent,

the Title II Order held that DNS fell within the telecommunications management exception.

38. The Title II Order incorrectly assumed that so long as a functionality was, in part, used in

a manner that could be viewed as adjunct-to-basic, it necessarily was adjunct-to-basic regardless of what

(Continued from previous page)

management exception embodied in the definition of information service.� (citations omitted)); AARP Comments at

85; WGAW Comments at 8.

122

Nominum Comments at 5 (asserting that the �features of DNS-based services are focused on enhancing the

consumer�s Internet experience and go well-beyond what is needed for the management and control of

telecommunications system�).

123

Sandvine Comments at 5; see also USTelecom Comments at 35 (asserting that DNS �capabilities uniformly

permit or enhance the use of the World Wide Web; they do not manage a telecommunications system or service�).

124

See IANA, Domain Name System (DNS) Parameters, https://www.iana.org/assignments/dns-parameters/dns-

parameters.xhtml (last visited Dec. 1, 2017) (for full set of information types supported by the DNS protocol).

125

Sandvine Comments at 5.

126

Other functions that would fall into the telecommunications systems management exception might include

information systems for account management and billing, configuration management, and the monitoring of failures

and other state information, and to keep track of which addresses are reachable through each of the interconnected

neighboring networks. See Peha Reclassification Comments at 20.

127

The same shortcomings are present in the Title II Order�s analysis of caching, as well

include

information systems for account management and billing, configuration management, and the monitoring of failures

and other state information, and to keep track of which addresses are reachable through each of the interconnected

neighboring networks. See Peha Reclassification Comments at 20.

127

The same shortcomings are present in the Title II Order�s analysis of caching, as well.

128

Communications Protocols Under Section 64.702 of the Commission�s Rules and Regulations, GN Docket No.

80-756, Memorandum Opinion, Order, and Statement of Principles, 95 FCC 2d 584, 591, para. 15 (1983) (Protocols

Order).

129

See, e.g., North American Telecommunications Association Petition for Declaratory Ruling Under �64.702 of the

Commission�s Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises Equipment,

Memorandum Opinion and Order, 101 FCC 2d 349, 359, para. 24 (1985) (NATA Centrex Order) (�The computer

processing services we recognized as permissible adjuncts to basic service are services which might indeed fall

within possible literal readings of our definition of an enhanced service, but which are clearly �basic� in purpose and

use.�).

130

See, e.g., Non-Accounting Safeguards Order, 11 FCC Rcd at 21958, para. 107.

Federal Communications Commission FCC 17-166

the functionality otherwise accomplished.

131

Although confronted with claims that DNS is, in significant

part, designed to be useful to end-users rather than providers, the Title II Order nonetheless decided that it

fell within the telecommunications management exception.

132

While conceding that DNS, as well as other

functions like caching, �do provide a benefit to subscribers,�

133

the Title II Order held that they

nonetheless fell within the telecommunications management exception because it found some aspect of

their operation also was of use to providers in managing their networks

that it

fell within the telecommunications management exception.

132

While conceding that DNS, as well as other

functions like caching, �do provide a benefit to subscribers,�

133

the Title II Order held that they

nonetheless fell within the telecommunications management exception because it found some aspect of

their operation also was of use to providers in managing their networks.

134

This expansive view of the

telecommunications management exception�and associated narrowing of the scope of information

services�is a transposition of the analytical approach embodied in the MFJ and Computer Inquiries;

under the approach in the pre-1996 Act precedent, the analysis would instead begin with the broad

language of the information service or enhanced service definitions, generally excluding particular

functions only if the purpose served clearly was narrowly focused on facilitating bare transmission. The

Commission and the courts made clear the narrow scope of the �adjunct-to-basic� or �telecommunications

management� categories in numerous decisions in many different contexts.

135

131

See, e.g., Title II Order, 30 FCC Rcd at 5766-68, paras. 367-68. In addition to the MFJ precedent, Bureau

precedent similarly has observed that adjunct-to-basic capabilities do not include functions �useful to end users,

rather than carriers.� Petitions for Forbearance from the Application of Section 272 of the Communications Act of

1934, As Amended, to Certain Activities, Bell Operating Companies, CC Docket No. 96-149, Memorandum Opinion

and Order, 13 FCC Rcd 2627, 2639, para. 18 (CCB 1998) (272 Forbearance Order). Given the lack of ambiguity in

the MFJ�s holding in this regard, we find it more reasonable to interpret this precedent to call for a similar

requirement that �adjunct to basic� services do not include services primarily useful to end-users, and reject

arguments to the contrary

et No. 96-149, Memorandum Opinion

and Order, 13 FCC Rcd 2627, 2639, para. 18 (CCB 1998) (272 Forbearance Order). Given the lack of ambiguity in

the MFJ�s holding in this regard, we find it more reasonable to interpret this precedent to call for a similar

requirement that �adjunct to basic� services do not include services primarily useful to end-users, and reject

arguments to the contrary. See, e.g., Public Knowledge Reply at 37 (�The �rule� AT&T attempts to extract from this

is simply another paragraph of the telecommunications management exception which, applied to DNS, still does not

lead to the result it wants.�).

132

Title II Order, 30 FCC Rcd at 5768, para. 368 & n.1037. The same is true of the Title II Order�s treatment of

caching. Id. at 5768, para. 368 n.1037.

133

Id.

134

Id.

135

See, e.g., Amendment of Sections 64.702 of the Commission�s Rules and Regulations (Third Computer Inquiry) et

al., CC Docket No. 85-229, Report and Order, 104 FCC 2d 958, 967-68, para. 10 (1986) (Computer III Phase I

Order) (�[d]ata processing, computer memory or storage, and switching techniques can be components of a basic

service if they are used solely to facilitate the movement of information� (emphasis added)); NATA Centrex Order,

101 FCC 2d at 360, para. 26 (speed dialing and call forwarding �serve but one purpose: facilitating establishment of

a transmission path over which a telephone call may be completed� (emphasis added)); id. at 360, para. 26 (directory

assistance that �provides only that information about another subscriber�s telephone number which is necessary to

allow use of the network to place a call to that other subscriber . . . may be offered as an adjunct to basic service�

while �an offering of access to a data base for most other purposes is the offering of an enhanced service� (emphasis

added)); Computer II Final Decision, 77 FCC 2d at 419, para

�provides only that information about another subscriber�s telephone number which is necessary to

allow use of the network to place a call to that other subscriber . . . may be offered as an adjunct to basic service�

while �an offering of access to a data base for most other purposes is the offering of an enhanced service� (emphasis

added)); Computer II Final Decision, 77 FCC 2d at 419, para. 93 (�[a] basic transmission service is one that is

limited to the common carrier offering of transmission capacity for the movement of information�); id. at 420-21,

para. 97 (�[a]n enhanced service is any offering over the telecommunications network which is more than a basic

transmission service�); id. at 421, para. 98 (�computer processing applications such as call forwarding, speed

calling, directory assistance, itemized billing, traffic management studies, voice encryption, etc. . . . are ancillary

services directly related to [the] provision� of basic telephone service �that do not raise questions about the

fundamental communications or data processing nature of a given service� (internal quotation marks omitted)); MFJ

Initial Gateway Decision, 673 F. Supp. at 587 n.275 (rejecting arguments that transmission of information services

fall outside the definition of information services by focusing in the first instance on �the breadth of the information

services definition�); see also DOJ Competitive Impact Statement, 47 Fed. Reg. at 7176 (telecommunications

services may �include related functions� that are �essential to such transmission,� so, for example, where a function

�constitutes an inherent aspect of the technology used in transmission and switching,� it would not result in the

service being classified an information service under the MFJ). Notably, the focus remains on the purpose or use of

the specific function in question and not merely whether the resulting service, as a whole, is useful to end-users

transmission,� so, for example, where a function

�constitutes an inherent aspect of the technology used in transmission and switching,� it would not result in the

service being classified an information service under the MFJ). Notably, the focus remains on the purpose or use of

the specific function in question and not merely whether the resulting service, as a whole, is useful to end-users.

See, e.g., Public Knowledge Reply at 37 (�To maintain, as AT&T does, that something that is �useful� to an end user

(continued�.)

Federal Communications Commission FCC 17-166

39. The Title II Order also put misplaced reliance on Computer Inquiries adjunct-to-basic

precedent from the traditional telephone service context as a comparison when evaluating broadband

Internet access service functionalities.

136

Because broadband Internet access service was not directly

addressed in pre-1996 Act Computer Inquiries and MFJ precedent, analogies to functions that were

classified under that precedent must account for potentially distinguishing characteristics not only in

terms of technical details but also in terms of the regulatory backdrop. The 1996 Act enunciates a policy

for the Internet that distinguishes broadband Internet access from legacy services like traditional

telephone service. The 1996 Act explains that it is federal policy �to preserve the vibrant and competitive

free market that presently exists for the Internet and other interactive computer services, unfettered by

Federal or State regulation.�

137

The application of potentially ambiguous precedent to broadband Internet

access service should be informed by how well�or how poorly�it advances that deregulatory statutory

policy. We find that our approach to that precedent, which results in an information service classification

of broadband Internet access service, better advances that deregulatory policy than the approach in the

Title II Order, which led to the imposition of utility-style regulation under Title II

s service should be informed by how well�or how poorly�it advances that deregulatory statutory

policy. We find that our approach to that precedent, which results in an information service classification

of broadband Internet access service, better advances that deregulatory policy than the approach in the

Title II Order, which led to the imposition of utility-style regulation under Title II.

40. The regulatory history of traditional telephone service also informs our understanding of

Computer Inquiries precedent, further distinguishing it from broadband Internet access service. Given the

long history of common carriage offering of that service by the time of the Computer Inquiries, it is

understandable that some precedent started with a presumption that the underlying service was a �basic

service.�

138

But similar assumptions would not be warranted in the case of services other than traditional

telephone service for which there was no similar longstanding history of common carriage. Thus, not

only did the Title II Order rely on specific holdings that are at best ambiguous in their analogy to

technical characteristics of broadband Internet access service, but it failed to adequately appreciate key

regulatory distinctions between traditional telephone service and broadband Internet access service.

139

(Continued from previous page)

cannot fall under the management exception is absurd, as the entire purpose of broadband is to be useful to end

users, as is the entire purpose of telephony.�).

136

See, e.g., Title II Order, 30 FCC Rcd at 5768-69, para. 369.

137

47 U.S.C. � 230(b)(2).

138

See, e.g., NATA Centrex Order, 101 FCC 2d at 358, para. 23 (�[W]e did not intend that our definition of

enhanced services should be interpreted as forbidding carriers to use the processing and storage capabilities within

their networks to offer optional tariffed features which facilitate use of traditional telephone service

30 FCC Rcd at 5768-69, para. 369.

137

47 U.S.C. � 230(b)(2).

138

See, e.g., NATA Centrex Order, 101 FCC 2d at 358, para. 23 (�[W]e did not intend that our definition of

enhanced services should be interpreted as forbidding carriers to use the processing and storage capabilities within

their networks to offer optional tariffed features which facilitate use of traditional telephone service. Accordingly,

the Final Decision carried forward from the Tentative Decision our recognition that there are computer processing

services which may be offered in conjunction with basic telephone service.�); Computer II Final Decision, 77 FCC

2d at 421, para. 98 (�The intent was to recognize that while POTS is a basic service, there are ancillary services

directly related to its provision that do not raise questions about the fundamental communications or data processing

nature of a given service. Accordingly, we are not here foreclosing telephone companies from providing to

consumers optional services to facilitate their use of traditional telephone service.�); US West Communications

Petition for Computer III Waiver, Docket No. 90-623, Order, 11 FCC Rcd 1195, 1199, para. 27 (CCB 1995) (�[T]he

Commission held in the NATA Centrex Order that carriers may use some of the processing and storage capabilities

within their networks to offer optional tariffed features as �adjunct to basic� services, if the services: (1) are intended

to facilitate the use of traditional telephone service; and (2) do not alter the fundamental character of telephone

service.�); cf., e.g., AT&T Corp. Petition for Declaratory Ruling Regarding Enhanced Prepaid Calling Card

Services, Regulation of Prepaid Calling Card Services, WC Docket Nos. 03-133, 05-68, Order and Notice of

Proposed Rulemaking, 20 FCC Rcd 4826, 4830-31, paras

are intended

to facilitate the use of traditional telephone service; and (2) do not alter the fundamental character of telephone

service.�); cf., e.g., AT&T Corp. Petition for Declaratory Ruling Regarding Enhanced Prepaid Calling Card

Services, Regulation of Prepaid Calling Card Services, WC Docket Nos. 03-133, 05-68, Order and Notice of

Proposed Rulemaking, 20 FCC Rcd 4826, 4830-31, paras. 15-16 (2005) (AT&T Calling Card Order) (AT&T�s

prepaid calling card service involves �no �offer� to the customer of anything other than telephone service, nor is the

customer provided with the �capability� to do anything other than make a telephone call,� and relying on Computer

Inquiries precedent, the Commission found that unprompted advertisements inserted by AT&T were adjunct-to-

basic and thus leave the service a �telecommunications service� under the 1996 Act definitions.).

139

Title II Order, 30 FCC Rcd at 5768-69, para. 369 (summarily asserting that the traditional telephone service

context of its cited precedent �provides no basis to discard the logic of that analysis in the broadband context�); see

also, e.g., ACLU/EFF Reply at 4 (�If the NATA Centrex Order had concerned Internet access, it would doubtless

(continued�.)

Federal Communications Commission FCC 17-166

41. Caching. We also conclude that caching, a functionally integrated information

processing component of broadband Internet access service, provides the capability to perform functions

that fall within the information service definition

F Reply at 4 (�If the NATA Centrex Order had concerned Internet access, it would doubtless

(continued�.)

Federal Communications Commission FCC 17-166

41. Caching. We also conclude that caching, a functionally integrated information

processing component of broadband Internet access service, provides the capability to perform functions

that fall within the information service definition.

140

As the record reflects, �[c]aching does much more

than simply enable the user to obtain more rapid retrieval of information through the network; caching

depends on complex algorithms to determine what information to store where and in what format.�

141

This requires �extensive information processing, storing, retrieving, and transforming for much of the

most popular content on the Internet,�

142

and as such, caching involves storing and retrieving capabilities

required by the �information service� definition.

143

The Court affirmed this view in Brand X, finding

�reasonable� the �Commission�s understanding� that Internet service �facilitates access to third-party

Web pages by offering consumers the ability to store, or �cache,� popular content on local computer

servers,� which constitutes �the �capability for . . . acquiring, [storing] . . . retrieving [and] utilizing

information.��

144

42. We find that ISP-provided caching does not merely �manage� an ISP�s broadband

Internet access service and underlying network, it enables and enhances consumers� access to and use of

information online.

145

The record shows that caching can be realized as part of a service, such as DNS,

which is predominantly to the benefit of the user (DNS caching).

146

Caching can also be realized in terms

of content that can be accumulated by the ISP through non-confidential (i.e., non-encrypted)

147

retrieval

(Continued from previous page)

have read �offering of access to a data base for purposes of obtaining Internet numbers� is an �adjunct to basic

Internet service.��)

which is predominantly to the benefit of the user (DNS caching).

146

Caching can also be realized in terms

of content that can be accumulated by the ISP through non-confidential (i.e., non-encrypted)

147

retrieval

(Continued from previous page)

have read �offering of access to a data base for purposes of obtaining Internet numbers� is an �adjunct to basic

Internet service.��). Thus, for example, the fact that the adjunct-to-basic classification of directory assistance arose

in the traditional telephone context likewise persuades us to give it relatively little weight here as an analogy to

DNS, and we reject arguments to the contrary. See, e.g., OTI New America Comments at 33-34; Barbara van

Schewick and Patrick Leerssen Reply at 32-33.

140

See Comcast Comments at 15-16; ITIF Comments at 13; Charter Comments at 14.

141

ITIF Comments at 13. See also CTIA Comments at 37; AT&T Comments at 75-76 (�ISPs routinely arrange for

the use of caching to enhance their customers� ability to acquire information. Caching technologies use powerful

information-processing algorithms to determine what to cache, where to cache it, and how long the content should

be cached.� (citation omitted)).

142

ITIF Comments at 13.

143

See AT&T Comments at 75-76 (�The prevalence of caching confirms . . . that broadband Internet access falls

within the scope of �information service� (because by definition it consists of �storing� and �retrieving�

information.�). As such, we reject commenter assertions to the contrary. See, e.g., Public Knowledge Comments at

48-49.

144

Brand X, 545 U.S. at 999-1000.

145

See Comcast Comments at 19; Verizon Comments at 58; CTIA Comments at 36-37 (��Caching�s capabilities

enhance users� quality of experience and add[] value to their broadband Internet access service,� Rysavy explains,

�by providing faster and more dependable service.�� (citations omitted)); Reason Foundation Comments at 10;

Charter Comments at 14-15

144

Brand X, 545 U.S. at 999-1000.

145

See Comcast Comments at 19; Verizon Comments at 58; CTIA Comments at 36-37 (��Caching�s capabilities

enhance users� quality of experience and add[] value to their broadband Internet access service,� Rysavy explains,

�by providing faster and more dependable service.�� (citations omitted)); Reason Foundation Comments at 10;

Charter Comments at 14-15.

146

See Stevens Report, 13 FCC Rcd at 11537-38, para. 76; Cable Modem Order, 17 FCC Rcd at 4809-10, para. 17

n.76 (�Caching is similarly a behind-the-scenes service that speeds content delivery and thus improves consumers�

online experience.�).

147

We disagree with assertions in record that suggest that ISP-provided caching is not a vital part of broadband

Internet access service offerings, as it may be stymied by the use of HTTPS encryption. See ACLU/EFF Reply

(stating �ISP caching is significantly stymied by the use of HTTPS encryption, which has increased from just 2% in

2010 to more than 50% in 2017�) (citations omitted); see also Public Knowledge Comments at 13 (�HTTP Secure

(�HTTPS�) accounted for 49% of web traffic in February 2016, as compared to 13% in April 2014� (citing Peter

Swire et al., Online Privacy and ISPs: ISP Access to Consumer Data is Limited and Often Less than Access by

Others, The Inst. for Info. Sec. & Privacy at Ga. Tech at 10 (Feb. 29, 2016) (white paper),

http://www.iisp.gatech.edu/sites/default/files/images/online_privacy_and_isps.pdf)). Recently, the Commission

concluded that encryption is not yet ubiquitous and that �truly pervasive encryption on the Internet is still a long way

(continued�.)

Federal Communications Commission FCC 17-166

of information from websites (Web caching). In this case, the user benefits from a rapid retrieval of

information from a local cache or repository of information while the ISP benefits from less bandwidth

resources used in the retrieval of data from one or more destinations

vasive encryption on the Internet is still a long way

(continued�.)

Federal Communications Commission FCC 17-166

of information from websites (Web caching). In this case, the user benefits from a rapid retrieval of

information from a local cache or repository of information while the ISP benefits from less bandwidth

resources used in the retrieval of data from one or more destinations. DNS and Web caching are

functions provided as part and parcel of the broadband Internet access service. When ISPs cache content

from across the Internet, they are not performing functions, like switching, that are instrumental to pure

transmission, but instead storing third party content they select in servers in their own networks to

enhance access to information.

148

The record reflects that without caching, broadband Internet access

service would be a significantly inferior experience for the consumer, particularly for customers in remote

areas, requiring additional time and network capacity for retrieval of information from the Internet.

149

Thus, because caching is useful to the consumer, we conclude that the Title II Order erred in incorrectly

categorizing caching as falling within the telecommunications system management exception to the

definition of �information service.�

43. In addition, the Title II Order�s failure to consider applicable MFJ precedent led to

mistaken analogies when it concluded that caching fell within the statutory telecommunications

management exception.

150

In relevant precedent, the MFJ court observed that the information service

restriction generally �prohibits the [BOCs] from �storing� and �retrieving� information,� but identified

�quite distinct settings in which storage capabilities of the [BOCs] could be used in the information

services market.�

151

One of the categories of storage and retrieval identified by the court appears highly

comparable to caching

the MFJ court observed that the information service

restriction generally �prohibits the [BOCs] from �storing� and �retrieving� information,� but identified

�quite distinct settings in which storage capabilities of the [BOCs] could be used in the information

services market.�

151

One of the categories of storage and retrieval identified by the court appears highly

comparable to caching. That category involved BOC provision of �storage space in their gateways for

databases created by others� such as �information service providers and end users,� making

�communication more efficient by moving information closer to the end user, thereby reducing

transmission costs.�

152

This functionality�recognized as an information service by the MFJ court�

appears highly analogous to caching, and lends historical support to our view that the caching

(Continued from previous page)

off, and that many sites still do not encrypt.� Protecting the Privacy of Customers of Broadband and Other

Telecommunications Services, Report and Order, 31 FCC Rcd 13911, 13922, para. 34 (2016) (2016 Privacy Order),

nullified by Pub. L. 115-22. In the same proceeding, the Commission also found that DNS queries are almost never

encrypted. Id. at 13921, n.39. While we recognize that the 2016 Privacy Order and the rules adopted therein have

been nullified under the Congressional Review Act, we nonetheless find the Commission�s analysis of the record in

that proceeding on this point relevant.

148

See USTelecom Comments at 34-35.

149

See, e.g., NCTA Comments at 15; Brand X, 545 U.S

DNS queries are almost never

encrypted. Id. at 13921, n.39. While we recognize that the 2016 Privacy Order and the rules adopted therein have

been nullified under the Congressional Review Act, we nonetheless find the Commission�s analysis of the record in

that proceeding on this point relevant.

148

See USTelecom Comments at 34-35.

149

See, e.g., NCTA Comments at 15; Brand X, 545 U.S. at 999 (noting that caching �obviates the need for the end

user to download anew information from third-party Web sites each time the consumer attempts to access them,

thereby increasing the speed of information retrieval�); Charter Comments at 14-15 (explaining that without

caching, customers would experience greater delays in retrieving such information if and when they find it); Verizon

Comments at 58 (explaining that caching is a behind-the-scenes service that speeds content delivery and thus

improves consumers� online experience, and for that reason, is not a network management process but instead a

valuable component of the information service that ISPs offer to consumers). For these reasons, we reject

arguments to the contrary. See, e.g., Public Knowledge Comments at 49 (Caching operates �not just for the benefit

of the end user, who may experience faster transmission, but also for the benefit of the network provider, reducing

the resource demands and traffic loads of their network�); Scott Jordan Reply at 12-13 (�[I]f a broadband Internet

access service provider chooses to implement caching inside its network, and not as a content delivery network

service offered to edge providers, then it is doing so in order to manage its broadband Internet access service.�).

150

See generally Title II Order, 30 FCC Rcd at 5770-71, para. 372; see also, e.g., INCOMPAS Comments at 54-55

(arguing that finding caching to fall within the telecommunications management exception is �in keeping with

Computer II�).

151

MFJ Gateway/Storage & Retrieval Decision, 714 F. Supp. at 18 n.73, 19

then it is doing so in order to manage its broadband Internet access service.�).

150

See generally Title II Order, 30 FCC Rcd at 5770-71, para. 372; see also, e.g., INCOMPAS Comments at 54-55

(arguing that finding caching to fall within the telecommunications management exception is �in keeping with

Computer II�).

151

MFJ Gateway/Storage & Retrieval Decision, 714 F. Supp. at 18 n.73, 19.

152

Id. at 19.

Federal Communications Commission FCC 17-166

functionality within broadband Internet access service is best understood as rendering broadband Internet

access service an information service.

153

44. Ignoring that MFJ precedent, the Title II Order erred in seeking to analogize caching to

��store and forward technology [used] in routing messages through the network as part of a basic

service�� mentioned in the Computer II Final Decision.

154

In fact, consistent with the MFJ court�s

identification of distinct uses of storage and forwarding, the cited portion of the Computer II Final

Decision recognized that �the kind of enhanced store and forward services that can be offered are many

and varied.�

155

In that regard, the Computer II Final Decision distinguished �[t]he offering of store and

forward services� from �store and forward technology,� explaining that �[m]essage or packet switching,

for example, is a store and forward technology that may be employed in providing basic service.�

156

Reading that discussion in full context and in harmony with subsequent MFJ precedent, the reference in

the Computer II Final Decision to �store and forward technology� appears better understood as mirroring

a category of storage and retrieval of information that the MFJ court suggested was not an information

service�in particular, �the basic packet switching function, . .

ervice.�

156

Reading that discussion in full context and in harmony with subsequent MFJ precedent, the reference in

the Computer II Final Decision to �store and forward technology� appears better understood as mirroring

a category of storage and retrieval of information that the MFJ court suggested was not an information

service�in particular, �the basic packet switching function, . . . [which] involves the breakdown of data

or voice communications into small bits of information that are then collected and transmitted between

nodes.�

157

That category of activity relied upon in the Title II Order thus actually appears to be barely or

not at all analogous to caching. We instead find more persuasive the MFJ court�s information service

treatment of BOC provision of �storage space in their gateways for databases created by others� such as

�information service providers and end users��a distinct category of storage and retrieval functionality

that is a close fit to caching.

158

153

The first category the court identified was �very short term storage,� including, among other things, �the basic

packet switching function,� which �involves the breakdown of data or voice communications into small bits of

information that are then collected and transmitted between nodes,� involving �constant storage, error checking, and

retransmission, as required for accurate transmission.� Id. at 19. Although the court was not entirely clear, it

seemed to suggest that such functions were not information services under the MFJ. This category appears to bear

little similarity to caching, however. The third category of �storage and retrieval� information service functions

identified by the court would include the BOC�s provision of �voice messaging, voice storage and retrieval, and

electronic mail.� Id. at 19-20 (footnotes omitted)

seemed to suggest that such functions were not information services under the MFJ. This category appears to bear

little similarity to caching, however. The third category of �storage and retrieval� information service functions

identified by the court would include the BOC�s provision of �voice messaging, voice storage and retrieval, and

electronic mail.� Id. at 19-20 (footnotes omitted). Because that category does not appear as analogous to caching as

the category identified by the court and described above, nor was it relied upon in the Title II Order�s discussion of

caching, we do not focus on that third category in our discussion here.

154

Title II Order, 30 FCC Rcd at 5770-71, para. 372, n.1052 (quoting Computer II Final Decision, 77 FCC 2d at

420-21, para. 97, n.35); see also, e.g., Public Knowledge Comments at 61 (citing �message or packet switching�

functions).

155

Computer II Final Decision, 77 FCC 2d at 420-21, para. 97.

156

Id. at 420-21, para. 97, n.35.

157

MFJ Gateway/Storage & Retrieval Decision, 714 F. Supp. at 19.

158

Id. We are unpersuaded by claims that this MFJ precedent only is analogous to CDNs and not �transparent

caching� based on asserted differences in how it is determined what content will be stored in each scenario. Letter

from Jon Peha, Professor, Carnegie Mellon University, WC Docket No. 17-108, at 3-4 (filed Dec. 7, 2017) (Peha

Dec. 7, 2017 Ex Parte Letter). Although the factual scenario discussed in the MFJ anticipated end-users or

information service providers electing what information to store, and that fact may have partially informed the

court�s decision whether to ultimately allow BOCs to provide that capability notwithstanding its classification as an

information service, we do not read the underlying classification as turning on that issue. MFJ Gateway/Storage &

Retrieval Decision, 714 F.Supp. at 19

-users or

information service providers electing what information to store, and that fact may have partially informed the

court�s decision whether to ultimately allow BOCs to provide that capability notwithstanding its classification as an

information service, we do not read the underlying classification as turning on that issue. MFJ Gateway/Storage &

Retrieval Decision, 714 F.Supp. at 19. Further, in addition to the distinctions between caching and store-and-

forward technology acknowledged even in this filing, Peha Dec. 7, 2017 Ex Parte Letter at 4, we find additional

shortcomings in how the Title II Order relied on adjunct-to-basic precedent. See, e.g., supra paras. 38-40.

Federal Communications Commission FCC 17-166

b. ISPs� Service Offerings Inextricably Intertwine Information

Processing Capabilities with Transmission

45. Having established that broadband Internet access service has the information processing

capabilities outlined in the definition of �information service,� the relevant inquiry is whether ISPs�

broadband Internet access service offerings make available information processing technology

inextricably intertwined with transmission. Below we examine both how consumers perceive the offer of

broadband Internet access service, as well as the nature of the service actually offered by ISPs, and

conclude that ISPs are best understood as offering a service that inextricably intertwines the information

processing capabilities described above and transmission.

46. We begin by considering the ordinary customer�s perception of the ISP�s offer of

broadband Internet access service. As Brand X explained, �[i]t is common usage to describe what a

company �offers� to a consumer as what the consumer perceives to be the integrated finished product.�

159

ISPs generally market and provide information processing capabilities and transmission capability

together as a single service

the ordinary customer�s perception of the ISP�s offer of

broadband Internet access service. As Brand X explained, �[i]t is common usage to describe what a

company �offers� to a consumer as what the consumer perceives to be the integrated finished product.�

159

ISPs generally market and provide information processing capabilities and transmission capability

together as a single service.

160

Therefore, it is not surprising that consumers perceive the offer of

broadband Internet access service to include more than mere transmission, and that customers want and

pay for functionalities that go beyond mere transmission.

161

As Cox explains, �[w]hile consumers also

place significant weight on obtaining a reliable and fast Internet connection, they view those attributes as

a means of enabling these capabilities to interact with information online, not as ends in and of

themselves.�

162

Indeed, record evidence confirms that consumers highly value the capabilities their ISPs

offer to acquire information from websites, utilize information on the Internet, retrieve such information,

and otherwise process such information.

163

159

Brand X, 545 U.S. at 990.

160

See ACA Comments at 52 (�ACA members confirm that their marketing of broadband Internet access service has

not undergone substantial change since the inception of the service and that it has always emphasized both the

always-on capabilities that broadband Internet access would afford subscribers, including the ability to retrieve and

utilize the panoply of available Internet content and applications, and the fast speeds at which they would be able to

stream, download and upload Internet content.�)

ot undergone substantial change since the inception of the service and that it has always emphasized both the

always-on capabilities that broadband Internet access would afford subscribers, including the ability to retrieve and

utilize the panoply of available Internet content and applications, and the fast speeds at which they would be able to

stream, download and upload Internet content.�).

161

See, e.g., MSI Survey Report at 4; see also NCTA Reply at 7-8 (�[A] recent survey of consumers confirms that

they highly value the capabilities their BIAS providers offer to �acquire information� from internet websites, �utilize

information� on the internet, �retrieve� such information,� [sic] and otherwise �process� such information. Not only

do consumers expect their BIAS providers to offer such capabilities, but the vast majority view the functions they

enable�such as the ability to search for and find information on the web, to send and receive emails, to surf the

Internet, and to shop online�as �must have.��); Cox Reply at 4-5 (similar); USTelecom Reply at 7-11 (�[W]e

wanted to confirm (or debunk), based on objective, data-driven analysis, the Commission�s assertion that consumers

understand their BIAS to function only as a �transmission platform� that they can use to access third-party content,

applications and services of their choosing. It turns out that consumers expect their BIAS to offer far more than just

a pathway to the Internet.�); Comcast Comments at 23 (�[M]any of the information components of BIAS are now

taken for granted as being included�and expected to be included�in the offered service.�); Comcast Reply at 6

(�[M]ost consumers are aware of integrated service features offered by their BIAS provider�such as online storage,

parental controls, and e-mail. . .

ffer far more than just

a pathway to the Internet.�); Comcast Comments at 23 (�[M]any of the information components of BIAS are now

taken for granted as being included�and expected to be included�in the offered service.�); Comcast Reply at 6

(�[M]ost consumers are aware of integrated service features offered by their BIAS provider�such as online storage,

parental controls, and e-mail. . . . Not only do consumers expect their BIAS provider(s) to offer such capabilities

over fast and reliable Internet connections, but a significant majority view the functions enabled by these

capabilities�such as surfing the web, streaming media, or shopping online�as �very� important.�); Free State

Foundation Comments at 15 (�[E]nd user consumers perceive, even if tacitly, that broadband ISPs are offering a

functionally integrated service. They do not perceive that they are purchasing transmission as a standalone

service.�).

162

Cox Reply at 5; see also Letter from Diane Holland, Vice President, USTelecom and Rick Chessen, Senior Vice

President, NCTA, to Marlene H. Dortch, Secretary, FCC, WC Docket No. 17-108, Attach. A (MSI Survey Report)

at 4-5 (filed Aug. 28, 2017) (USTelecom and NCTA Ex Parte).

163

See MSI Survey Report at 4; see also NCTA Reply at 7-8; Cox Reply at 4-5; USTelecom Reply at 7-11. But see

Letter from Carmen Scurato, Director, Policy and Legal Affairs, NHMC, to Marlene Dortch, Secretary, FCC, WC

(continued�.)

Federal Communications Commission FCC 17-166

47. This view also accords with the Commission�s historical understanding that �[e]nd users

subscribing to . . . broadband Internet access service expect to receive (and pay for) a finished,

functionally integrated service that provides access to the Internet

Policy and Legal Affairs, NHMC, to Marlene Dortch, Secretary, FCC, WC

(continued�.)

Federal Communications Commission FCC 17-166

47. This view also accords with the Commission�s historical understanding that �[e]nd users

subscribing to . . . broadband Internet access service expect to receive (and pay for) a finished,

functionally integrated service that provides access to the Internet. End users do not expect to receive (or

pay for) two distinct services�both Internet access service and a distinct transmission service, for

example.�

164

While the Title II Order dwells at length on the prominence of transmission speed in ISP

marketing, it makes no effort to compare that emphasis to historical practice.

165

In fact, ISPs have been

highlighting transmission speed in their marketing materials since long before the Title II Order.

166

The

(Continued from previous page)

Docket No. 17-108 at 2 (filed Nov. 20, 2017) (NHMC Expert Analysis of Open Internet Consumer Complaints)

(�Consumers and carriers, at least according to their responses to consumer complaints, appear to conceptualize

broadband Internet access as basic telecommunications service and characterize it in terms of quality and capacity of

connections.�). NHMC�s argument, based on what it asserts to be a representative sample of consumer complaints

filed with the Commission, is not persuasive. NHMC�s methodology relied on Natural Language Processing (NLP)

to determine words that co-occur in such complaints, and then used �iterative clustering algorithms� to �ma[p]

connections among them.� See id. attachment at 13-15. Neither NHMC�s methodology nor the representative

extracts of the complaints NHMC submitted demonstrate that individual complaints about particular aspects of

service reflect how a customer would perceive service offerings as a whole

ermine words that co-occur in such complaints, and then used �iterative clustering algorithms� to �ma[p]

connections among them.� See id. attachment at 13-15. Neither NHMC�s methodology nor the representative

extracts of the complaints NHMC submitted demonstrate that individual complaints about particular aspects of

service reflect how a customer would perceive service offerings as a whole. Indeed, the sample of complaints

attached by NHMC features a broad set of issues, ranging widely from questions about speed to �losing my Internet

connection,� �charg[ing] extra for your services,� �interrupt[ing] the service,� �bully[ing] me into share plans,�

�Google arbitrarily engag[ing] in monopolistic practices,� �charg[ing] me modem rental fee,� or �basically no

technical support.� See id. at 40-71. We further note that to the extent that perceived speed is a common complaint,

that does not mean consumers view broadband Internet access service as a pure transmission service. A consumer�s

perceived speed for many activities (such as web browsing) depends on information-processing elements of the

service like DNS and caching; indeed, caching�s primary consumer benefit is allowing a more rapid retrieval of

information from a local cache (increasing the perceived speed of a consumer�s connection). Moreover, the

Commission has never relied on such complaints to identify what a service is. And for good reason: We expect

consumer complaints about problems with a service�not every aspect of it. Indeed, applying such a methodology

would lead to absurd results: Should we redefine the public switched network based on the millions of robocall

complaints we get each year or the rural-call-completion problems that we know are too prevalent? Of course not.

164

Wireline Broadband Classification Order, 20 FCC Rcd at 14910-11, para. 104; see also, e.g., Wireless

Broadband Internet Access Order, 22 FCC Rcd at 5913, para. 31 (same); Cable Modem Order, 17 FCC Rcd at

4822-23, para

blic switched network based on the millions of robocall

complaints we get each year or the rural-call-completion problems that we know are too prevalent? Of course not.

164

Wireline Broadband Classification Order, 20 FCC Rcd at 14910-11, para. 104; see also, e.g., Wireless

Broadband Internet Access Order, 22 FCC Rcd at 5913, para. 31 (same); Cable Modem Order, 17 FCC Rcd at

4822-23, para. 38 (�Consistent with the analysis in the [Stevens Report], we conclude that the classification of cable

modem service turns on the nature of the functions that the end user is offered. We find that cable modem service is

an offering of Internet access service, which combines the transmission of data with computer processing,

information provision, and computer interactivity, enabling end users to run a variety of applications.�).

165

See Title II Order, 30 FCC Rcd at 5755-57, paras. 351-54; see also USTelecom, 825 F.3d at 699, 704-05

(discussing the Title II Order�s analysis of marketing); AARP Comments at 83 (discussing certain ISPs� marketing

statements); Free Press Comments at 42 (similar); Public Knowledge Comments, App. A (similar); OTI New

America Comments at 27 (�BIAS providers today market their services as an access path to internet based content.

BIAS providers distinguish, and indeed consumers compare, their services based on factors such as speed.�); Vimeo

Comments at 28 (discussing certain ISPs� marketing statements); EFF Comments at 17-19 (�Today�s BIAS

providers, while they may offer email, are not marketed or perceived as providers of content, storage, data

processing, or other information services

to internet based content.

BIAS providers distinguish, and indeed consumers compare, their services based on factors such as speed.�); Vimeo

Comments at 28 (discussing certain ISPs� marketing statements); EFF Comments at 17-19 (�Today�s BIAS

providers, while they may offer email, are not marketed or perceived as providers of content, storage, data

processing, or other information services. Indeed, unlike the America Online of two decades ago, today�s BIAS

providers advertise the speed and reliability of their data transmission, not the information services they offer.�);

Peha Reclassification Comments at 5 (asserting that ISPs market their service by bragging about the quality of IP

packet transfer, rather than the quality of information services such as proprietary content or email); cf. AARP

Comments at 91 (�Consumers have tools available, such as bandwidth testing meters, that enable them to understand

what download speeds their service provider delivers.�); id. at 94 (�Bandwidth is what matters to consumers of

broadband Internet access service.�).

166

See, e.g., USTelecom Comments at 32-33; Verizon Comments at 57; CenturyLink Comments at 27 (�[T]he

relative prominence of speed as a focus in CenturyLink marketing efforts has not changed materially over time since

2000.�); ACA Comments at 41, n.126 (affirming that ACA members �had not fundamentally changed the way in

(continued�.)

Federal Communications Commission FCC 17-166

very first report on advanced telecommunication capability pursuant to section 706(b) of the 1996 Act,

released in 1999, cited ISPs� marketing of their Internet access service speed.

167

ISPs� inclusion of speed

information in their marketing also was acknowledged by the Court in Brand X, which nonetheless

upheld the Commission�s information service classification as reasonable

-166

very first report on advanced telecommunication capability pursuant to section 706(b) of the 1996 Act,

released in 1999, cited ISPs� marketing of their Internet access service speed.

167

ISPs� inclusion of speed

information in their marketing also was acknowledged by the Court in Brand X, which nonetheless

upheld the Commission�s information service classification as reasonable.

168

Indeed, consideration of ISP

marketing practices has been part of the backdrop of all of the Commission�s decisions classifying

broadband Internet access service as an information service and thus cannot justify a departure from the

historical classification of broadband Internet access service as an information service.

48. The Title II Order�s reliance on ISP marketing also assumes that it provides a complete

picture of what consumers perceive as the finished product. First, the record reflects that ISP marketing

of broadband encompasses features beyond speed and reliability.

169

Further, because all broadband

Internet access services rely on DNS and commonly also rely on caching by ISPs, to the extent that those

capabilities, in themselves, do not provide a point of differentiation among services or providers, it would

be unsurprising that ISPs did not feature them prominently in their marketing or advertising, particularly

to audiences already familiar with broadband Internet access service generally.

170

Indeed, speed and

reliability are not exclusive to telecommunications services; rather, the record reflects that speed and

reliability are crucial attributes of an information service.

171

Consequently, the mere fact that broadband

(Continued from previous page)

which they advertise their broadband Internet access service�they have always emphasized both its enhanced

functionalities and fast speeds�).

167

See, e.g., Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely

Fashion, CC Docket No

tes of an information service.

171

Consequently, the mere fact that broadband

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