IN RE: MCP NO. 185; FEDERAL COMMUNICATIONS COMMISSION, IN THE MATTER OF SAFEGUARDING AND SECURING THE OPEN INTERNET, DECLARATORY RULING, ORDER, REPORT AND ORDER, AND ORDER ON RECONSIDERATION, FCC 24-52, 89 FED. REG. 45404, PUBLISHED MAY 22, 2024. OHIO TELECOM ASSOCIATION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents.
Nos. 24-7000/3449/3450/3497/3504/3507/3508/3510/3511/3519/3538
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 2, 2025
Before: GRIFFIN, KETHLEDGE, and BUSH, Circuit Judges.
RECOMMENDED FOR PUBLICATION. Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 25a0002p.06. Argued: October 31, 2024.
COUNSEL
ARGUED: Jeffrey B. Wall, SULLIVAN & CROMWELL LLP, Washington, D.C., for Petitioners. Daniel Woofter, GOLDSTEIN, RUSSELL & WOOFTER LLC, Washington, D.C., for Intervenors. Jacob M. Lewis, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., for Respondents. ON BRIEF: Jeffrey B. Wall, Morgan L. Ratner, Zoe A. Jacoby, SULLIVAN & CROMWELL LLP, Washington, D.C., Helgi C. Walker, Jonathan C. Bond, Russell B. Balikian, GIBSON DUNN & CRUTCHER LLP, Washington, D.C., Matthew A. Brill, Roman Martinez, Matthew T. Murchison, Charles S. Dameron, LATHAM & WATKINS LLP, Washington, D.C., Jeffrey A. Lamken, Jennifer E. Fischell, Jackson A. Myers, MOLOLAMKEN LLP, Washington, D.C., Maxwell F. Gottschall, SULLIVAN & CROMWELL LLP, New York, New York, Thomas M. Johnson, Jr., Joshua S. Turner, Jeremy J. Broggi, Boyd Garriott, WILEY REIN LLP, Washington, D.C., for Petitioners. Daniel Woofter, Kevin Russell, GOLDSTEIN, RUSSELL & WOOFTER LLC, Washington, D.C., Andrew Jay Schwartzman, Washington, D.C., Albert H. Kramer, PUBLIC KNOWLEDGE, Washington, D.C., James Bradford Ramsay, NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Washington, D.C., for Intervenors. Jacob M. Lewis, Scott M. Noveck, FEDERAL COMMUNICATIONS COMMISSION, Washington, D.C., Robert B. Nicholson, Andrew W. Chang, UNITED STATES DEPARTMENT OF JUSTICE, for Respondents. Thomas R. McCarthy, Jeffrey M. Harris, CONSOVOY MCCARTHY PLLC, Arlington, Virginia, Corbin K. Barthold, TECHFREEDOM, Washington, D.C., Tara M. Corvo, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C., Washington, D.C., Philip D. Williamson, TAFT STETTINIUS & HOLLISTER LLP, Cincinnati, Ohio, Jennifer Tatel, WILKINSON BARKER KNAUER, LLP, Washington, D.C., William P. Barr, TORRIDON LAW PLLC, Washington, D.C., Lawrence J. Spiwak, PHOENIX CENTER FOR ADVANCED LEGAL AND ECONOMIC PUBLIC POLICY STUDIES, Washington, D.C., Paul W. Hughes, MCDERMOTT WILL & EMERY LLP, Washington, D.C., Christopher S. Yoo, UNIVERSITY OF PENNSYLVANIA,
OPINION
GRIFFIN, Circuit Judge.
As Congress has said, the Internet has “flourished, to the benefit of all Americans, with a minimum of government regulation.”
Beginning in the late 2000s, the FCC undertook several attempts to impose so-called “net neutrality policies,” which prohibit Broadband Internet Service Providers from controlling users’ Internet access—by varying speeds or blocking connections to third-party websites, for example—based on content, commercial agreements, and other reasons a provider might want to manage a user‘s Internet experience. Those efforts culminated in 2015, when the FCC concluded for the first time that Broadband Internet Service Providers offer to consumers a “telecommunications service” and thus are common carriers—and subject to extensive regulation (including net-neutrality restrictions)—under Title II of the Communications Act.
Corresponding with a change in administrations, in 2018, the FCC rescinded its 2015 determination and instead reverted to its historical hands-off approach to Internet regulation by concluding that Broadband Internet Service Providers offered only “information service.”
The D.C. Circuit heard substantial challenges to the 2015 and 2018 orders. It applied the now-overruled Chevron doctrine in each case and upheld both wholly inconsistent regulations as “permissible” under the Act.
Today we consider the latest FCC order, issued in 2024, which resurrected the FCC‘s heavy-handed regulatory regime. Under the present Safeguarding and Securing the Open Internet Order, Broadband Internet Service Providers are again deemed to offer a “telecommunications service” under Title II and therefore must abide by net-neutrality principles.
I.
A.
The “Internet drives the American economy and serves, every day, as a critical tool for America‘s citizens to conduct commerce, communicate, educate, entertain, and engage in the world around them.” In re Protecting and Promoting the Open Internet, 30 FCC Rcd. 5601, 5603 ¶ 1. (2015) [hereinafter Open Internet Order]; seе also Safeguarding Order,
In Internet parlance, Broadband Internet Service Providers connect “end users” (consumers) to “edge providers” (websites that generate their own content, such as video streaming services (Netflix), commercial marketplaces (Amazon), social media (Facebook), and search engines (Google)) via an interconnected network of fiber optic cables, high-speed routers, and other equipment. U.S. Telecom Ass‘n v. FCC, 825 F.3d 674, 690 (D.C. Cir. 2016) [hereinafter Telecom (panel)]. Broadband is ubiquitous, with over 90% of all households in the United States hаving a broadband Internet subscription. Daniela Mejia, Computer and Internet Use in the United States: 2021, U.S. Census Bureau (June 18, 2024).
B.
Today‘s dispute concerns the degree to which the FCC can regulate Broadband Internet Service Providers under the authority granted to it by the Communications Act of 1934, as amended by the Telecommunications Act of 1996. Taking cues from other regulatory schemes concerning the transportation of goods or persons for a fee (like railroads and public utilities), the Federal Communications Act extends similar oversight to wire and radio communications. See Glob. Crossing Telecomms., Inc. v. Metrophones Telecomms., Inc., 550 U.S. 45, 49 (2007). It empowers the FCC with regulatory authority that depends on the type of service the regulated entity provides. Communications Act of 1934, Pub. L. 73-416, 48 Stat. 1064 (1934). Generally, the Act favors light regulation under Title I,
The emergence of the Internet brought an update to this scheme, the Telecommunications Act of 1996. Pub. L. 101-104, 110 Stat. 56 (1996). Significant for our purpose is its specification of two new services that the FCC may regulate: “information service,”
C.
For almost 20 years after Cоngress enacted the Telecommunications Act, the FCC‘s position was that companies providing access to the Internet offered information—not telecommunications—services, and thus, Title II‘s common-carrier regulations did not apply. See In the Matter of Appropriate Regul. Treatment for Broadband Access to the Internet over Wireless Networks, 22 FCC Rcd. 5901, 5908–14, ¶¶ 18–34 (2007); In the Matter of United Power Line Council‘s Petition for Declaratory Ruling, 21 FCC Rcd. 13281, 13285–90, ¶¶ 7–15 (2006); In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC Rcd. 14853, 14858, ¶ 5 (2005); In re Inquiry Concerning High-Speed Access to Internet Over Cable & Other Facilities, 17 FCC Rcd. 4798, 4823, ¶¶ 38–40 (2002) [hereinafter 2002 Internet Over Cable Declaratory Ruling]; In re Deployment of Wireline Services Offering Advanced Telecommunications Capability, 13 FCC Rcd. 24012, 24030, ¶ 36 (1998) [hereinafter Advanced Services Order]; see also In the Matter of Fed.-State Joint Bd. on Universal Serv., 13 FCC Rcd. 11501, 11536 (1998) [hereinafter Stevens Report] (“Internet access services are appropriately classed as information, rather than telecommunications, services.“). Applying the now-defunct Chevron frаmework, the Supreme Court upheld one of these determinations, in which the FCC found that cable companies providing cable modem service—a precursor to the service that Broadband Internet Access Providers provide—offered only an information service and thus could not be regulated as Title II common carriers. Brand X, 545 U.S. at 986 (upholding the 2002 Internet Over Cable Declaratory Ruling).
Changes in the FCC‘s composition, with a new administration, upset the FCC‘s
During the Telecom litigation and after President Trump first took office, the FCC changed course. With its In re Restoring Internet Freedom Order, the FCC returned to its view that broadband Internet is an information service. 33 FCC Rcd. 311 (2018) [hereinafter RIF Order]. The D.C. Circuit yet again upheld this determination under Chevron. See Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019) (per curiam).
That brings us to today. The Safeguarding Order once more imposes net-neutrality policies on Broadband Internet Service Providers by reclassifying broadband Internet as a telecommunications service subject to common-carrier regulation under Title II.
Various Broadband Internet Service Provider associations filed petitions across the circuits challenging thе Safeguarding Order. The Judicial Panel on Multidistrict Litigation thereafter chose the Sixth Circuit to hear these consolidated petitions for review. See
II.
With the Order stayed, we now consider the merits of petitioners’ challenges. The Administrative Procedure Act mandates that courts “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations.”
A.
“[T]he very core of the Internet and its associated services is the ability to ‘retrieve’ and ‘utilize’ information.” Stevens Report, 13 FCC Rcd. at 11540 n.165, ¶ 80 (citation omitted). Broadband Internet Service Providers, of course, “offer to members of the public . . . Internet access.” Brand X, 545 U.S. at 1000 (quoting Stevens Report, 13 FCC Rcd. at 11539, ¶ 79). The question is whether, in so doing, they are merely a conduit for data trаnsmission (a so-called “dumb pipe“) and thus offer consumers a telecommunications service (as the Safeguarding Order concludes); or whether, instead, Broadband Internet Service Providers offer consumers the capability to acquire, store, and utilize data—and thus offer consumers an information service. In our view, the latter is the best reading of the Act.
1.
“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 (2009) (citation omitted). We give the text its “ordinary meaning at the time Congress adopted” the statute, Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021), reading it not in isolation but rather “in context,” Loper Bright, 144 S. Ct. at 2261 n.4 (citation omitted).
A series of interdependent definitions frame our inquiry here. Title II provides that a “telecommunications carrier shall be treated as a common carrier . . . only to the extent that it is engaged in providing telecommunications services.”
By contrast, “[t]he term ‘information service’ means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.”
2.
Preliminarily, we must consider if Brand X binds our statutory-interpretation analysis, given that the Supreme Court overruled Chevron in Loper Bright. Noted above, Brand X involved a challenge to an FCC ruling determining that cable companies that owned cable lines used to provide broadband Internet service offered only an information service, not a telecommunicatiоns service as well. 545 U.S. at 978. Applying Chevron, the Court held that the Act‘s use of the term “offering of telecommunications” as used in
But Loper Bright ended Chevron‘s mandated deference to an agency‘s statutory interpretation upon a finding of ambiguity. In overruling Chevron, the Court found such a view of implicit delegation inconsistent with the Administrative Procedure Act‘s command that courts “decide all relevant questions of law and interpret statutory provisions.” Loper Bright, 144 S. Ct. at 2255 (internal quotation marks and ellipsis omitted). Now, “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority” by “us[ing] every tool at their disposal to determine the best reading of the statute and resolvе the ambiguity.” Id. at 2266, 2273.
Although the Court discarded the decades-old Chevron approach, it assured that “we do not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful . . . are still subject to statutory stare decisis despite our change in interpretive methodology.” Id. at 2273 (citations omitted and emphasis added). In other words, Chevron did not invalidate “specific agency actions” that the Supreme Court has already found lawful.
Following Loper Bright, we cannot agree with petitioners that Brand X expressly bars the FCC‘s order at issue. The “specific agency action” that the Court approved in Brand X was the FCC‘s 2002 Internet Over Cable Declaratory Ruling. The specific action before us here is the FCC‘s 2024 Safeguarding Order, which came 22 years later. The Safeguarding Order therefore is not the “specific agency action” that the Court approved in Brand X. And that means we are not bound by
3.
a.
We now turn to the merits, which the parties have argued here in exemplary fashion. But the key flaw in the FCC‘s arguments throughout is that the FCC elides the phrase “offering of a capability” as used in
Start with “offering” as used in
In the view of the current Commission, Broadband Internet Service Providers offer a telecommunications service that merely connects consumers to edge providers (like Netflix, Amazon, Facebook, and Google). Safeguarding Order,
Everyone agrees with the Commission‘s classification of edge providers as offering an information service. Those providers indisputably “‘generate’ and ‘make available’ information to others through email and blogs; ‘acquire’ and ‘retrieve’ information from sources such as websites, online streaming services, and file sharing tools; ‘store’ information in the cloud; ‘transform’ and ‘process’ information through image and document manipulation tools, online gaming, cloud computing, and machine learning capabilities; ‘utilize’ information by interacting with stored data; and publish information on social media sites.”
Yet, by connecting consumers to edge providers’ information, Broadband Internet Service Providers plainly provide a user with the “capability” to, at minimum,
“While the statute‘s language spells trouble for the Government‘s position, a wider look at the statute‘s structure gives us even more reason for pause.” Van Buren v. United States, 593 U.S. 374, 389 (2021) (internal quotation marks omitted). Specifically, Congress emphasized the importance of deregulating the “Internet and other interactive computer systems,” finding in the Telecommunications Act of 1996 that “[t]he Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.”
Further, Congress defined “interactive computer service” as an “information service . . . that provides access to the Internet,”
So too does history. Brand X persuasively posits that we should view the definitions of “telecommunications service” and “information service” “against the background of” the FCC‘s pre-Telecommunications Act‘s regulatory efforts. 545 U.S. at 992–93. In its 1980 Computer II decision, the FCC “distinguished between ‘basic’ service (like telephone service) and ‘enhanced’ service (computer-processing service offered over telephone lines).” Id. at 976. It noted that “in an enhanced service the content of the information need not be changed and may simply involve subscriber interaction with stored information.” See In re Amendment of Section 64.702 of the Comm‘rs Rules and Regs. (Second Computer Inquiry), 77 F.C.C.2d 384, 421, ¶ 97 (1980) [hereinafter Computer II]. The Telecommunications Act of 1996 codified these distinctions: “telecommunications service” is “the analog to basic service,” and “information service” is “the analog to enhanced service.” Brand X, 545 U.S. at 977 (quotation marks omitted). When Congress borrows long-existing regulatory history, “it brings the old soil with it.” George v. McDonough, 596 U.S. 740, 746 (2022) (citation omitted). And when Congress approvingly adopted the FCC‘s prior regulatory approach, it “placed Internet access on the ‘enhanced service’ side, and thus prohibited the FCC from construing the ‘offering’ of ‘telecommunications service’ to be the ‘information service’ of Internet access.” Telecom (en banc), 855 F.3d at 405 (Brown, J., dissenting) (ellipsis and internal citations omitted).
Following enactment, various historical datapoints indicate that treating broadband Internet as a telecommunications service under Title II contradicts the Act. The FCC has hewed to this view from enactment until recent administration changes, which is “especially useful in determining the statute‘s meaning.” Loper Bright, 144 S. Ct. at 2262.
Begin in 1998 with the Commission‘s Stevens Report, which stated that “Internet access services are appropriately classed as infоrmation, rather than telecommunications, services.” 13 FCC Rcd. at 11536, ¶ 73. In the late 1990s, the companies providing Internet access service were usually not the ones providing data transmission. “Most” Internet access providers offered Internet access through dial-up calls sent via the local telephone company to the provider. Barbara Esbin, Internet Over Cable: Defining the Future in Terms of the Past, FCC OPP Working Paper No. 30, 1998 WL 567433, at *71 (Aug. 1, 1998). The dial-up telephone call from the consumer‘s house to the Internet access provider was known as the “last mile” of transmission. Advanced Services Order, 13 FCC Rcd. at 24016, ¶ 8. The provider, in turn, “rout[ed] the call to the Internet.” Esbin, 1998 WL 567433, at *71; see also In re Fed.-State Joint Bd. on Universal Serv., 12 FCC Rcd. 8776, 8822, ¶ 83 (1997) [hereinafter Universal Service Order] (“[W]e recognize that Internet access includes . . . the connection over a [telephone company‘s] network from a subscriber to an Internet Service Provider . . . . [V]oice grade access to the public switched network usually enables customers to secure access to an Internet Service Provider, and, thus, to the Internet.“). “Internet access providers, typically, own[ed] no telecommunications facilities.” Stevens Report, 13 FCC Rcd. at 11540, ¶ 81. The FCC concluded that Internet access providers offered information services because “the very core of the Internet and its associated services is the
In the same year, the FCC‘s Advanced Services Order classified the first type of broadband transmission, Digital Subscriber Lines (DSL) (a faster method for transmitting data across last mile phone lines) as a “telecommunications service.” 13 FCC Rcd. at 24029–30, ¶ 35. That did not strike the industry as odd in an era when different companies usually provided Internet access and last mile transmission. See
The FCC addressed that latter scenario in its 2002 Internet Over Cable Declaratory Ruling, which the Court upheld in Brand X. That Ruling extended the Stevens Report‘s information-service conclusion to cable companies providing an Internet access service despite their ownership of the cable lines used to provide data transmission across the “last mile” from a consumer‘s home to the site where Internet access occurred. 2002 Internet Over Cable Declaratory Ruling, 17 FCC Rcd. at 4821–24, ¶¶ 36-41. There was no basis, in the FCC‘s view, to distinguish the two: Together they form a “single, integrated service that enables the subscriber to utilize Internet access service . . . and to realize the benefits of a comprehensive service offering.”
For these reasons, then, it makes sense to exclusively classify integrated services, including those offered by Broadband Internet Service Providers, as information services because the definition expressly contemplates telecommunications usage, tying the “offering of a capability” to utilize (for example) information “via telecommunications.”
b.
In the face of the statutory text, context, and history, the FCC largely resists our reading of what “offering of a capability” means because of how that reading would affect telephone services—the paradigmatic example of telecommunications service. If Broadband Internet Service Providers fall within “information services” given their facilitation of access to third-party content, the argument goes, so too would telephone services. See also Mozilla, 940 F.3d at 93 (Millett, J., concurring). It is true, in one sense, that a telephone user retrieves information from a third-party in a phone conversation with a friend or customer-service agent. But that is not the sense meant by the statute.
The existence of a fact or a thought in one‘s mind is not “information” like 0s and 1s used by computers. The former implies knowledge qua knowledge, whilе the latter is knowledge reduced to a tangible medium. Consider the acts of speaking and writing. Speaking reduces a thought to sound, and writing reduces a thought to text. Both sound and text can be stored: a cassette tape for audio information, a journal for written information, or a computer for both. But during a phone call, one creates audio information by speaking, which the telephone service transmits to an interlocutor, who responds in turn. Crucially, the telephone service merely transmits that which a speaker creates; it does not access information.
The Act‘s text and its pre-enactment history demonstrate that the definition of information service incorporates the narrower sense of “information.” Computer II defined basic service in part
The FCC counters that telephone service enables users to interact with stored data, citing voicemail and call menus. Computer II considered this argument for answering machines in 1980 and the Stevens Report did the same for voicemail in 1998. Computer II, 77 F.C.C.2d at 421, ¶ 98; Stevens Report, 13 FCC Rcd. at 11530, ¶ 60. The answer remains the same. These ancillary services may themselves be information services. But they do not transform the categorization of telephone service because its core standalone offering is the transparent transmission of telecommunications.
Nor do the FCC‘s other counterarguments hit the mark. The FCC points to the Act‘s “advanced telecommunications incentives” section. Known as Section 706(a), it “encourage[s]” the FCC and its state analogues to “deploy[] . . . advanced telecommuniсations capability to all Americans . . . by utilizing” certain regulatory measures, including “price cap regulation” and “regulatory forbearance.”
Moreover, in the late 1990s, when greater than 90% of households accessed the Internet through dial-up, Universal Service Order, 12 FCC Rcd. at 8823, ¶ 83 n.154, there was a distinct possibility that advanced services would improve the last mile of transmission, which telecommunications carriers provided across notoriously slow copper phone lines, Advanced Services Order, 13 FCC Rcd. at 24016, ¶ 8. Indeed, the Advanced Services Order shows that this possibility came to fruition
One final response. We acknowledge that the workings of the Internet are complicated and dynamic, and that the FCC has significant expertise in overseeing “this technical and complex area.” Brand X, 545 U.S. at 992. Yet, post-Loper Bright, that “capability,” if you will, cannot be used to overwrite the plain meaning of the statute.
4.
In sum, applying the plain meaning of
Given our conclusion that the FCC‘s reading is inconsistent with the plain language of the Communications Act, we see no need to address whether the major questions doctrine also bars the FCC‘s action here. See In re MCP No. 185, 2024 WL 3650468, at *1, *5. Nor do we consider petitioners’ additional arguments, including that their provision of Domain Name Services and caching—which they contend are integrated products to the offering of Internet access services—further (or independently) demonstrate that they qualify as offering an information service to end users, cf. Brand X, 545 U.S. at 987, and that the Safeguarding Order is arbitrary and capricious.
B.
Finally, we turn to the Safeguarding Order‘s related provisions concerning mobile broadband. Because users can access broadband Internet when using mobile devices connected to cellular networks like 5G, separate from wired (or Wi-Fi) connections, the Safeguarding Order similarly imposes net-neutrality policies on those so-called “mobile broadband services” through the Act‘s “commerсial mobile service” provision.
1.
In 1993, Congress added a “mobile services” provision to the radio-transmission part of the Communications Act (Title III). Pub. L. No. 103-66, § 60001, 107 Stat. 379. Three definitions are pertinent:
(1) the term “commercial mobile service” means any mobile service . . . that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the Commission;
(2) the term “interconnected service” means service that is interconnected with the public switсhed network (as such terms are defined by regulation by
the Commission) or service for which a request for interconnection is pending pursuant to subsection (c)(1)(B); and (3) the term “private mobile service” means any mobile service . . . that is not a commercial mobile service or the functional equivalent of a commercial mobile service, as specified by regulation by the Commission.
Mobile-broadband services emerged in the mid-2000s. At that time (when BlackBerry dominated the market and Apple had just introduced its iPhone), the FCC classified mobile broadband as a private mobile service not subject to common-carrier regulation. In the Matter of Appropriate Regul. Treatment for Broadband Access to the Internet over Wireless Networks, 22 FCC Rcd. 5901, 5901 (2007).
That changed with the FCC‘s 2015 Open Internet Order, which “classif[ied] mobile broadband Internet access as a commercial mobile service.” 30 FCC Rcd. at 5786, ¶ 399. As it did with broadband, the D.C. Circuit in Telecom approved this reclassification. Telecom (panel), 825 F.3d at 713–24.
After an administration change, the FCC flipped its position in 2018 back to its original understanding. That is, “mobile broadband Internet access should not be classified as a commercial mobile service.” RIF Order, 33 FCC Rcd. at 352, ¶ 65. The D.C. Circuit again upheld this determination under Chevron. Mozilla, 940 F.3d at 35–45.
Corresponding with another change in administration, today‘s Safeguarding Order again attempts to regulate mobile broadband as a “commercial mobile service.”
2.
There is no disputing that mobile broadband is a “mobile service” “provided for profit” “to the public” (or a “substantial portion of the public.“).
We start with the text‘s use of a definite article. It would be one thing if the statute said, “interconnected with a public switched network,” for that would connote multiple networks. But
So what is ”the public switched network“? In basic terms, it is the patchwork
History supports this reading. When Congress added “the public switched network” to Title III in 1993, it legislated against a backdrop that included “contemporaneous understandings of ‘public switched network’ by the Commission and the courts suggesting that it was commonly understood to refer to the ‘public switched telephone network.‘” Id. at 38; see also Telecom (en banc), 855 F.3d at 396 (Brown, J., dissenting). As the RIF Order cogently summarizes, “[o]n multiple occasions before 332(d)(2) was enacted, the [FCC and the courts] used the term ‘public switched network’ to refer to the traditional public switched telephone network.” 33 FCC Rcd. at 356, ¶ 75 (citing Ad Hoc Telecomms. Users Comm. v. FCC, 680 F.2d 790, 793 (D.C. Cir. 1982); Pub. Util. Comm‘n v. FCC, 886 F.2d 1325, 1327, 1330 (D.C. Cir. 1989)). And the FCC‘s contemporaneous interpretations—which Loper Bright says “may be especially useful in dеtermining the statute‘s meaning,” 144 S. Ct. at 2262—track this original understanding, see, e.g., In the Matter of Implementation of Sections 3(n) & 332 of the Commc‘ns Act, 9 FCC Rcd. at 1517; In the Matter of Appropriate Regul. Treatment for Broadband Access to the Internet over Wireless Networks, 22 FCC Rcd. at 5916–17, ¶¶ 43–45.
To its credit, the FCC concedes that the public switched network means the 10-digit telephone system, but the FCC argues that the public switched network also encompasses Internet Protocol (IP) addresses. In support, it points to the statute‘s delegation provision to assert that Congress intentionally drafted a dynamic statute. In its view,
With this understanding of “the public switched network,” we cannot agree with the FCC‘s assertion that the telephone network and the Internet are “interconnected” due to commingling of facilities and the use of VoIP technology.6 This is for the simple reason that the definition of “commercial mobile service” focuses on the whole (mobile broadband) and not the part (a third-party provided service, VoIP). See Mozilla, 940 F.3d at 43 (“The gap in [this] theory is shown most clearly in the obvious inability of a would-be caller from a NANP number who seeks to reach a person with mobile broadband but no form of VoIP (or mobile voice service).“); see also Telecom (en banc), 855 F.3d at 407 (Brown, J., dissenting) (“Nothing about the increase of consumers accessing mobile broadband Internet service via smart phones, the speed of Internet connection, or the ‘bundling’ of VoIP applications with smart phones, undermines the . . . distinction between the transmission of VoIP traffic and the VoIP service to the end user. Mobile broadband Internet access simply does not constitute a service interconnected with ‘the public switched network.‘” (internal citations omitted)). But see Telecom (panel), 825 F.3d at 722–23 (coming to the opposite conclusion under Chevron).
Finally, the FCC says it “makes little sense” to classify mobile broadband as a “private mobile service,” which “stands in marked contrast to ‘thе private mobile services of 1994, such as a private taxi dispatch service, services that offered users access to a discrete and limited set of endpoints.‘” See Telecom (panel), id. at 715 (brackets omitted). But that point is lost because the definitions of “commercial” and “private” mobile services are mutually exclusive, with “the latter [being] defined negatively, as ‘any mobile service that is not a commercial service.‘” Mozilla, 940 F.3d at 35 (emphasis and ellipsis omitted, quoting
In sum, mobile broadband does not qualify as “commercial mobile service” under
III.
For these reasons, we grant the petitions for review and set aside the FCC‘s Safeguarding Order.