United States Telecom Assoc. v. FCC [Order In Slip Opinion Format]

sрeculation does not account for the fact tors because of its exercise of unlawful utilization already that Anthem has lower monopsony power in upstream market Cigna. likely rates than So is it not that where it negotiates providers? rates with Cigna customers utilize health would care yes, If then Anthem-Cigna concedes that merger they more after the than do now. the merger is unlawful and should be en-

joined. no, If merger then the is lawful and should go be able to forward. I would analysis merger’s of a effects neces- vacate the District judgment Court’s sarily predictive entails judgment. remand for the District Court to expedi- Courts are often ill-equipped to render tiously resolve that predictive judgments question those in fact-intensive cases of this here, sort. But we have a the first pic- far clearer instance. ture of what will unfold than we often do. I respectfully dissent. know that Anthem-Cigna

We would be negotiate rates; able to provider lower in-

deed, even the Government admits as

much. And we savings know those will largely passed

be through employers

because that way is the the market and all, are

contracts structured. After point

whole provider negotiat- of the rates ed prices insurers is to establish the UNITED STATES TELECOM employers pay. prices will If the ASSOCIATION, lower, employers pay are will less. And Petitioner know, furthermore, any we cost sav- v. ings to employers likely greatly would ex- FEDERAL COMMUNICATIONS COM paid by ceed increase in fees employ- MISSION and United States of ers. America, Respondents record, On this this horizontal merger substantially therefore would not lessen Independent Telephone & Tele competition in the market for the sale Alliance, communications large insurance services to employers. The al., et Intervenors District clearly erred in concluding otherwise, disagree and I majori- with the No. 15-1063 ty opinion’s affirmance of the District 15-1078, 15-1086, Consolidated with 15- judgment. Court’s 1090, 15-1091, 15-1092, 15-1099, 15-1095, 15-1117, 15-1128, 15-1151, 15-1164 problem for this if merger, there is one, is in upstream its effects mar- Appeals, United States Court of namely, in hospitals its effects on ket— District of Columbia Circuit. Anthem-Cigna’s doctors as a result of en- Therefore, negotiating power. hanced my 1,May Filed: approach require to this case would Dis- trict remaining Court resolution of one

question: Anthem-Cigna Would obtain low- provider

er hospitals *, rates from and doc- Judge; Before: GARLAND Chief * Judge Judges Chief Garland Circuit this matter. participate Henderson and Pillard did not on, ROGERS, **, validity of a rule that the

HENDERSON*, ing TATEL the already replacement. GRIFFITH, agency had slated for ***, BROWN SRINIVASAN**, KAVANAUGH***, in the court’s denial we concur While WILKINS, MILLETT, PILLARD*, and review, a respond we en banc write Judges. Circuit by one of our pressed contention particular the Or-

dissenting colleagues: that der, sustaining panel and thus our decision ORDER it, controlling Supreme from Court departs PER CURIAM First, ways. our in two distinct precedent de- Supreme Court colleague submits banc, rehearing en petitions The for authori- congressional clear require cisions thereto, and the brief of amici responses rule, neutrality like the net zation rules court, full circulated to the curiae were authority, clear requisite and the Thereafter, requested. a and a vote was at 418- argues, he is absent here. See infra eligible to vote did majority judges of the J., dissenting); accord in- (Kavanaugh, Upon petitions. in favor of the not vote J., (Brown, dissenting). Sec- at 402-05 it is fra foregoing, of the consideration ond, contends that the rule colleague our petitions that the be denied. ORDERED Supreme Court decisions os- conflicts with tensibly arming internet service SRINIVASAN, joined Judge, by Circuit (ISPs) Amendment shield First TATEL, in Judge, concurring Circuit neutrality obligations. See in- against net banc: rehearing denial of en J., (Kavanaugh, dissenting). at 426-35 fra case, argument both lines of are panel upheld Respectfully, of our court In this first, Order, Supreme misconceived. As to the com Open the FCC’s 2015 Court, precluding far from the FCC’s Or- neutrality as the net rule. monly known failure of con- any supposed der due to unsuccessfully challenged who parties authorization, pointedly has rec- gressional now filed panel before the have the Order аgency’s under the seeking by ognized the full court petitions review what the today governing precisely statute to do banc. The court denies en sitting en second, no En would be Order does. As review. banc review banc supports in decision the counterintui- point at this particularly unwarranted enti- tive notion that the First Amendment uncertainty surrounding the light of the kind of con- engage tles an ISP to will fate of the FCC’s Order. neutrality rule— by duct barred the net adopting a Notice of Pro soon consider i.e., custom- potential to hold itself out to Rulemaking replace that would posed pathway markedly offering ers as them an unfiltered rule with a different existing choosing, own Restoring Internet Free web content their one. See In re subscribed, then, dom, 27, 2017), they but once have (Apr. https://apps.fcc. limit access to cer- turn around and their gov/edocs_public/attachmatch/DOC-344614 based on the ISP’s own en banc court tain web content Al.pdf. light, In that pronoune- preferences. and commercial examining, could find itself ** Srinivasan, by Judge by Judge Circuit Brown Circuit Circuit ments A statement Tatel, Judge concurring joined Circuit Judge Kavanaugh, dissenting the denial petitions, the denial of the attached. petitions, are attached. of the *** Judges Kavanaugh Circuit Brown grant petitions. Separate state- would doctrine). Before taking up the merits of those two rules” at 402-03 infra issues, (Brown, J., we first emphasize role which dissenting). examine we them. The wisdom of the net We have no need in this case to resolve was, remains, hotly rule the existence or precise contours of the debated matter. The FCC received the (or major major rules questions) doctrine of some four million views commenters by described our colleagues. Assuming the rule, In adopting Protecting before re existence of the doctrine they as have ex- Internet, and Promoting Open 30 FCC pounded it, and assuming further that the ¶ (2015) 5601, (Order), Red. 5604 6 and the rule in qualifies this case major as a one so day, debate over the rule continues to this as to bring play, doctrine into agency poised with the now to consider question posed by the doctrine is whether replacing it. We have no involvement the FCC has clear congressional authoriza- ongoing debate. Our task is not to tion to issue the rule. The answer yes. is advisability assess the of the rule as a Indeed, we know vested the policy. matter of It is instead to assess the agency with authority to impose obli- permissibility of the rule as a matter of gations like the ones instituted the Or- agency’s law. Does the rule lie within the der Supreme because the specif- Court has statutory authority? And is it consistent ically told us so.

with the First Amendment? The answer to pertinent decision is National Cable view, questions, in yes. both our & Telecommunications Ass’n v. X Brand Services, 545 U.S.

I. case, L.Ed.2d 820 That one, like this proper addressed the regula According dissenting colleague, to our tory classification under "the Communica the FCC’s Order runs afoul of a doctrine tions Act of broadband internet service. gleans he from certain Court de- X provision Brand involved the of broad invalidating agency cisions an lying rule as band internet systems. access via cable At outside agency’s congressionally dele- decision, the time of the cable broadband gated authority. colleague Our under- was one of types two of broadband service give stands those decisions rise to a customers, available to the other being “major rules” doctrine. That doctrine is line). (digital DSL subscriber See id. at embody said to the following understand- 975, 125 S.Ct. 2688. ing about scope agencies’ delegated authority: agencies generally while are as- applied The FCC had a different form of possess Chevron, sumed to authority under regulatory treatment to cable broadband U.S.A., Inc. v. Natural Resources service than to agency DSL service. The Defense Council, Inc., had classified DSL as a “telecommunica- (1984), 81 L.Ed.2d 694 to issue rules re- tions service” for purposes of the Commu- solving statutory ambiguities, agency nications Act. See at id. i.e., major

can issue a great one of S.Ct. 2688. That classification sig- carries rule — political significance only economic and if statutory consequénces. nificant The Act — congressional has clear requires treating authorization to pro- telecommunications injra J., do so. See (Kavanaugh, at 418-19 presumptively viders as common carriers dissenting). dissenting colleague subject Our other regulatory to the substantial obli- generally agrees argument gations with this line of attending that status. See id. at (although 975-76, she “major carriers, calls the doctrine the 125 S.Ct. 2688. Common questions” instance, “major neutral, doctrine rather than the generally must afford services, repeatedly nondiscriminatory access to-their S.Ct. 2688. em unjust phasized avoid unreasonable to use must the Commission’s 975-76, See at practices in that connection. id. expert judgment “its policy resolve 1000, 125 S.Ct. 2688. Id. at questions.” these difficult proper light, S.Ct. 2688. In that classi the FCC had classified DSL

Whereas fication of service would turn broadband a telecommunications ser broadband as particulars “on factual how Internet vice, had instead elected to agency technology provided, it is works and how classify an “informa cable broadband questions to the Chevron leaves Commis service,” other of the classifi tion the- two sion to in the first instance.” resolve Id. cations under the available 991, 125 statute. id. S.Ct. 2688. S.Ct. 2688. service, in con Providers of an information held, Consequently, the Court the court providers, trast telecommunications X “erred appeals in Brand had in refus- to be carriers are not considered common ing apply to Chevron to the Commission’s result, providers an under the Act. As a interpretation of the definition of ‘telecom- subject information service are to less ex ” service,’ in declining munications to obligations regulatory tensive and over to to agency’s defer the decision treat ca- sight provid than are telecommunications ble as an information broadband service. 975-76, 125S.Ct. ers. id. at 2688. Id. at 125 2688 (quoting The in Brand X was whether the issue 153(46) (2000) § (currently U.S.C. codified compelled Act Communications the FCC 153(53))). § at 47 But U.S.C. deference classify to cable broadband ISPs as tele- owed, equally would have been the Su- subject regu- to providers communications clear, preme if the Court made FCC had

latory common The treatment as carriers. by opposite classify- reached the resolution question that Court answered no. Critical- ing cable as providers broadband telecom- though, ly purposes, for our the Court carriers. That is the munications because made clear in its decision—over and agency only regulatory had two classifica- Act left the the over—that the matter to tions To affirm the available to it. words, In agency’s discretion. other the to select discretion between treat FCC could elect to broadband ISPs necessarily them was to countenance the (as carriers it had as common done with agency’s treatment of cable broadband as providers), agency DSL but the did not a telecommunications service. have do so. Indeed, far the Court went as as to end, Court, explained to that that it affirmatively untouched” “leave[ ] difficulty concluding had “no Chevron court appeals’s belief better applie[d]” agency’s decision to clas- reading of the statute —albeit not the one sify an cable broadband as information adopted by that had the agency— been than a service rather telecommunications treating called for broadband service. Id. at 125 S.Ct. 985-86, carriers. Id. at telecommunications on the left the

statute’s “silence” matter fully 125 S.Ct. 2688. And the Court under- fill Commission “discretiоn to the conse- significant regulatory stood the implica- at quent statutory gap.” Id. agency tions if the were instead to question 2688. That make meant “would be foremost, resolved, as a agen- first and choice: classification telecommu- (internal require cy.” nications service “would applying Id. at S.Ct. 2688 omitted); 980-81, [i.e., quotation presumptively mandatory see at Title II marks id. regulation common all recognized carrier] ISPs.” the agency’s statutory authori- n.2, 125 Id. S.Ct. 2688. ty to institute “common-carrier regulation ISPs,” of all with some Justices even con- The concurring dissenting opinions cluding that the Act left the agency with in Brand X majority’s reinforced the rec- no other choice. 545 U.S. at ognition agency’s statutory of the authori- (Scalia, J., dissenting). In the Order ty subject to regulation ISPs as common review, under took up the Breyer’s carriers. Justice concurring opin- X Brand Court’s' invitation. It ion decided concluded that the FCC’s decision to classify broadband classify ISPs as cable broadband as an telecommunica- information providers, tions enabling service fell “within scope impose its statuto- com- mon rily delegated carrier authority though obligations on perhaps ISPs such as — just barely.” Id. net question S.Ct. 2688 rule in here. J., (Breyer, concurring). If the FCC’s elec- light X, In of Brand our dissenting col- tion impose not to common carrier obli- league’s reliance “major on the rules” doc- gations on cable “just broadband ISPs trine carry cannot the day. Recall that the barely” discretion, fell within agency’s ultimately doctrine embodies an under- opposite choice necessarily would have standing congressional about authoriza- comfortably fallen agency’s within the con- tion: agency, the' says, doctrine can gressionally delegated authority. adopt major only rule if it clearly pos- Justice Scalia’s dissenting opinion, congressional sesses authorization to do so. joined by Justices Souter Ginsburg, and major The question here, at issue accord- went even further. According to Justice ing colleague, to our is whether the FCC Scalia, permitted the statute only one con- subject can broadband ISPs to common clusion: subject cable broadband ISPs “are obligations. carrier at 422-23 infra carriers, to Title II regulation as common J., (Kavanaugh, If dissenting). we assume like their competitors [e.g., chief DSL] who that the FCC’s decision to treat broadband provide Internet through access other ISPs as common carriers amounts to a technologies.” 1006, Id. at 125 S.Ct. 2688 rule, major question the then is whether (Scalia, J., dissenting). agency, The in Jus- the agency clearly authority has under the view, tice Scalia’s had no discretion to con- Act to X, make that choice. In Brand the clude expressly accept- otherwise. And he Supreme Court definitively authori- —and ed that his reading of the Act would result tatively, purposes for our as inferior regulation ISPs,” “common-carrier of all question yes. court—answered that a result he worry.” considered “not a at Id. 1011, (He noted, 125 S.Ct. 2688. though, that, It bears emphasis regard in this by agency possessed statutory au- X, the time of Brand two of Supreme thority to forbear from applying the full Court by decisions cited the dissent as range of common regulatory carrier obli- exemplars major of the rules doctrine— 1011-12, gations, id. at 125 S.Ct. an MCI Corp. Telecommunications v. Am. authority the FCC exercised when it fash- Co., Telephone & Telegraph 512 U.S. review, ioned the rule we now see Order 2223, 129 (1994), 114 S.Ct. L.Ed.2d 182 ¶¶ 434-532.) FDA v. Brown & Williamson Tobacco upshot

The of X regard Brand Corp., 120 S.Ct. (2000) eongressionally the FCC’s delegated au- already L.Ed.2d 121 been de — had thority over broadband ISPs is unmistak- cided. Brown & particularly Williamson is able straightforward. There, All nine notable. Justices Court consid- rules that the FCC lacked general FDA’s exercise its doctrine statu-

ered the Food, tory authority to issue the Order we now authority under rulemaking review. regulate Act to Drug, and Cosmetic products children and

use of tobacco dissenting colleague Our nonetheless Court, although applying adolescents. X no poses contends that Brand obstacle principles of Chevron deference invalidating the FCC’s Order under the authority over tobacco FDA’s assertion major argument rules doetoine. His runs Congress did not products, concluded the major as follows. The under question of such a decision economic “delegate observes, doctrine, rules he whether to an in so political significance Congress “clearly has authorized cryptic a fashion.” Id. subject Internet service 1291. range reg- of burdensome common-carrier ulations with telecommunica- associated X,

Later, in the Court reached a Brand (Kavanaugh, tions services.” at 425 regu- Infra different conclusion about J., Court, X dissenting). But the Brand he Court, ISPs. latory over notes, “ambiguous then the statute found Chevron, this conclud- again applying time was about whether Internet service an in- Congress agen- ed had authorized the formation or a service telecommunications cy regulate to decide whether ISPs view, In service.” Id. at 425. his “Brand pos- common carriers. As between the two ambiguity by finding Xs definition classifications, “the sible Commission’s clearly means that has not au- one of them is entitled to defer- choice of thorized to issue the net neutrali- the FCC X, 545 U.S. at ence.” Brand ty rule.” Id. at 426. That on a false analysis equiva- rests further, note, that there is no mate We it incorrectly equates lence: two distinct technology rial con difference between species thing It is one ambiguity. to ask X technology in Brand and the sidered clearly is whether “Internet service a tele- parties petitioning issue here. The have under the communications service statute.” throughout this case that Brand contended thing Id. at 425. another quite It is to ask something X only referred to as involved “clearly whether has authorized the internet But the “last mile” of service. classify the FCC to Internet service aas (and panel straightforwardly unanimously) service,” which telecommunications is the rejected anything effort to make their question colleague’s relevant under our un- that supposed distinction. See Tele derstanding major of the rules doctrine. (D.C. FCC, com v. 825 F.3d Ass’n asks question Id. former whether the 2016); (Williams, J., Cir. id. at 745 concur clearly statute classifies ISPs as tele- itself ring dissenting part part). in in Our The latter providers. communications asks colleague likewise no ef dissenting makes clearly whether the the statute authorizes X distinguish fort Brand to on such agency classify to as telecommunica- ISPs Rather, both cases “the basis. involve providers. tions classify to ser that, if vice In Our colleague as a telecommunications service.” assumes the an- no, J., fra, (Kavanaugh, question but swer to is “that dissenting); at 425 the former (Brown, J., dissenting). game neutrality see 404-05 the end the for the net infra X, clearly And in Id. at all. A recognizing negative Brand the rule.”' at 425. Not Act, agency’s authority question hardly to do so the answer -the former under dic- latter, negates major negative the any argument under the tates answer to more salient, end, might In major doctrine, one. The statute itself be the the rules ambiguous by are to about whether ISPs be our colleague, articulated no affords carriers, as common but still invalidating treated be basis for the net authorizing in agency clear the resolve rule. The Supreme Court decisions ostensi- question. bly to that giving rise doctrine lie far afield They involve, from this case. per our col- Indeed, dichotomy perfectly cap- league’s description, “regulating cigarettes, Brand Z’s Scalia, holding. tures Justice banning physician-assisted suicide, elimi- dissent, clearly believed that the statute nating telecommunications re- rate-filing compelled treating ISPs as telecommunica- quirements, or regulating greenhouse gas providers. disagreed, tions The majority emitters.” Id. 421. The Court’s decision finding the statute on ambiguous ques- X, contrast, Brand by involved the same But the majority agen- tion. found that the (the Act), statute Communications was cy empowered ambigui- to resolve the (the FCC), same agency the same factual ty i.e., decide whether should ISPs be — (the provision context of broadband inter- providers classified as telecommunications (whether access), net and the same issue presumptively subject to common carrier ISPs broadband are telecommunications X obligations. short, In whereas Brand providers, carriers, and hence common un- statutory ambiguity found on whether Act). Brand X unambiguously der rec- providers, are ISPs telecommunications ognizes agency’s statutorily delegated decision ambiguity found no authority to decide that issue. gets on whether the FCC to answer that X, then, Does Brand question. necessarily validate agency’s decision to classify broadband understood, Brand X dictates reject So ISPs as telecommunications argument our ing dissenting colleague’s subject them to common carrier obli- major on the based rules doctrine. It is X No, it While Brand gations? does not. perhaps unsurprising thus that none of the recognizes statutory authority the FCC’s parties, no of the petitioning origi member to treat broadband ISPs as common carri- panel (including nal our who dis colleague ers, carry must out its authori- in part panel stage), sented at the ty way. and non-arbitrary a reasonable of the dissenting neither Commissioners partial panel’s dispo- dissent objected infringing to the FCC’s Order as sition believed the FCC’s Order fell (We note, though, such doctrine. that a grounds, petitioning short on those and the group intervenors led TechFreedom parties have raised host of challenges major an argument.) makes such rules agency’s decisionmaking process the and promote separation-of- doctrine is said to panel majority outcome. The concluded principles by that powers assuring Con upheld otherwise and the rule. delegated authority has to an Execu gress But while Brand X could not have set- agency to major tive decide a matter of J., policy. (Kavanaugh, validity at 418-19 of a rule yet tled the the FCC had infra of Brand Zs rec in it dissenting). light But to did promulgate, agency’s settle the classify of ognition congressionally authority the FCC’s dele to broadband as ISPs authority regu to to gated decide whether telecommunications under the s carriers, major late ISPs a common would Communications Act. The rules doc- trine, promote separation conceptualized by dissenting our disserve —not as —the deny authority determining to the a heuristic powers colleague, the is for by Congress. given agen- conferred on it rule falls within an whether agen- to the authority. objected Commissioners cy’s delegated congressionally rule on cy’s adoption multiple that a rule the Supreme says Court Once the poses the rule grounds, suggested X to neither regard so—as Brand did with does Similarly, any com- First Amendment issue. the authority to treat ISPs as the FCC’s parties the Order in principal challenging Insofar inquiry mon is over. carriers —our court, rule, collectively represent this who virtu- major as the Order involves FCC’s every then, ally provider including broadband agency’s X resolves the statu- Brand — major bring no all of the First adopt to it. tory ISPs — rule. The challenge Amendment to the sole II. party to raise claim under First Inc., Amendment is Alamo Broadband dissenting separately ar- colleague Our “a small which describes itself as broad- an gues poses the First that Amendment 1,000 provider” serving some custom- band to the Order. The independent bar Texas, joined ers which its submits, Order, First infringes he an Daniel by claim individual named Ber- rights of ISPs. Amendment broadband Proposed Briefing Pet’rs’ Joint ninger. Spеcifically, he understands 8; & Sched. Alamo Br. 3. Format to a First precedent recognize an part Amendment entitlement on Notwithstanding arguments present accessing ISP to its subscribers from block Berninger ed Alamo now also —and internet content based on the ISP’s certain dissenting colleague our consensus —the own even if the has held preferences, ISP correct: view is the net rule offering an in- out as its customers itself raises no issue the First under Amend content pathway discriminate to internet key understanding why to ment. The lies choosing. their own—not ISP’s — provider when a perceiving broadband instance, coverage. within the As the view, ISP, falls rule’s that an for Under explains, ISPs are af- Order broadband out as could hold itself to consumers subject to the retail neutral, rule “sell customers access fording them indiscriminate (lawful) ability go to on websites, then, anywhere they to but sub- all once they “represente they ] scribe, materially degrade ability to their Internet” — transport and deliver traffic will watching video—or even use Netflix substantially from all or all end altogeth- prevent their access to Netflix ¶ ¶¶ 27; points.” Order see id. er—in an effort steer customers They “display convey no ... intent to competing video-streaming <ser- ISP’s own provision” in their message of internet ac Alternatively, ISP, having again vice. ¶ 549, cess, necessary as id. would be “to affording customers held itself out its content, the First into bring play,” Amendment an unfiltered conduit to internet Johnson, (or Texas v. signif- accessing block them could load) 2533, 105 L.Ed.2d 342 icantly delay ability their the Wall Journal’s, New York Times’s Street “[bjroadband providers” In particular, aof disagreement website because subject “represent rule their expressed on the other the views one or allow services Internet end users access site. substantially all or all content on Inter- alteration, right net, blocking, no An ISP has First Amendment without edito- ¶ (emphasis to No engage practices. those kinds of rial intervention.” Id. added). turn, Customers, expect suggests Court decision other- “in Indeed, dissenting although they the two can obtain access to all content avail- wise. Internet, away able on the without editorial from ISP if reneges her on its provider.” intervention their representation by broadband blocking her access to added). ¶¶ Therefore, Id. (emphasis 80-82, as the select content. See id. 97-99. The panel agency decision held and the explained has further that a subscriber confirmed, neutrality the net rule applies might well no have of her awareness ISP’s only to “those providers practices broadband place: of that kind in the first she neutral, hold out may themselves as indiscrimi- have no reason to suppose that her nate to conduits” internet content of a inability particular to access a application, own choosing. subscriber’s U.S. or that markedly Telecom speeds slow she con- Ass’n, 743; 825 F.3d at Opp’n it, see FCC fronts attempting when to use derives Reh’g Pets. 28-29. from her ISP’s choices than rather some deficiency application. See id. For a broadband ISP that holds itself ¶¶ 81, all, 99. if After a subscriber encoun- “neutral, out to consumers as a indiscrimi- ters frastratingly buffering slow of videos i.e., pathway nate as a to “all conduit” — Netflix, when to attempting why use would Internet, alteration, content on the without she naturally suspect the fault lies with intervention,” blocking, or editorial Order her ISP rather than with Netflix itself? ¶ requires 549—the rule the ISP to abide by representation its and honor its custom- While applies the net rule to expectations. ers’ ensuing ISP there- those ISPs that hold out themselves as neutral, fore cannot block its subscribers’ access to indiscriminate to conduits internet content, certain prefer- websites based on own its the converse is also true: the rule engage ences. Nor can it in “throttling,” apply holding does not to an ISP itself out which, stopping outright while short of as providing something than a other neu- degrades tral, blocking, experience a user’s pathway i.e., indiscriminate an ISP — sufficiently selected content so as to render it making clear potential to cus- if largely, technically, even not provides “unusable.” tomers that it a filtered service ¶ Id. can an involving Nor ISP create “fast ISP’s exercise of “editorial ¶ favoring lanes” content providers pay instance, who Id. intervention.” 549. For Ala- (or a Broadband, ISP with whom it has commercial mo provid- lone broadband affiliation), while relegating er that a disfavored raises First Amendment chal- (i.e., rule, nonpaying) lenge to “slow lanes.” posits example of an ¶¶ 18, Id. blocking 126. Like wishing provide solely throt- ISP access tling, paid prioritization practices “family friendly of that Alamo websites.” Pet. variety ISP, incompatible promise Reh’g are with a long repre- 5. Such an as it neutral, provide pathway a indiscriminate sents engaging itself as in editorial inter- kind, choosing. content of customer’s own vention of that would fall outside the Ass’n, rule. See Telecom 825 F.3d at upshot of the FCC’s Order there- 743; 28-29; Opp’n Reh’g Pets. FCC fore is to “fulfill the expecta- reasonable Br. specifies 146 n.53. The Order thus signs tions of a customer up who for a an ISP remains “free to ‘edited’ ser- offer promises broadband service that access to vices” becoming subject without all of the lawful Internet” without editorial ¶ requirements. rule’s Order 556. ¶¶ 17, intervention. Id. 549. The FCC that, found once a consumer subscribes to That would be true of an that offers ISP particular broadband service experience reliance subscribers a curated block- on promise, high such a ing lying beyond she faces switch- field specified websites websites). ing ability constraining family costs her to shift of content (e.g., friendly internet ac- than indiscriminate that en- rather true of an ISP also be It- would effect on its despite potential interven- of editorial in other forms gages cess— bring then itself base—it could subscriber throttling applica- of certain tion, as such sense, the rule rule. In that ISP, of outside the filtering by the chosen tions slow) “voluntary,” in- (and be characterized as based on could lanes into fast content J., (Kavanaugh, dissent- An at 429-30 n.8 ISP commercial interests. the ISP’s fra just way the same that ing), but in much clear its adequately make need to would could be considered any regulation about services” provide to “edited intention entity ¶ regulated a voluntary, insofar as kind, giving so as to avoid id. that to always transform its business could impression a mistaken consumers longer it is no an extent that “access to such enjoy indiscriminate they would Internet, by regulation. covered line of business with- available on all content their intervention of the editorial out Here, no small matter for it would be ¶ It would id. 549. provider,” broadband potential itself to present to decide ISP Order, in- for under the enough not be fundamentally providing customers as to be stance, permission” for “consumer edited service—than product different —an threats of plan in a service “buried —the neutral, general- access indiscriminate sim- and confusion are deception consumer by con- ly expected ISPs and promised ¶ ¶ 19; see id. great.” too Id. ply No ISP has as standard service. sumers repre- court a desire to indicated in this in this case to scruti is no need There them affording as sent itself to consumers manner in which a broad the exact nize go” you’d wherever like “go less of a could render provider band “go where we’d like and more of by advertising to con service inapplicable Order Alamo Accordingly, you go” service. an edited service it offers sumers a First only ISP to raise Broadband, No pathway. an unfiltered rather than claim, argument makes no if Amendment that an ISP could do so party disputes offering filtered an thаt it holds itself out as wished, suggested has it and no ISP content, to offer- opposed to web court. That access doing so this interest any con- pathway to ing an indiscriminate reason: may be for an understandable choosing. Ala- own tent of its subscribers’ representing provider broadband claims a First Amendment mo nonetheless access to web will filter its customers’ its access to filter subscribers’ priorities might entitlement content based on its own through blocking, throt- web content ability its to to serious concerns about have measures. tling, paid prioritization Additionally, such a attract subscribers. than by offering filtered rather provider, instance, contends, that a Alamo access, relin might fear indiscriminate a First Amend- provider has broadband against protections quishing faster access its right provide ment liability to ISPs that copyright afforded than to a video-streaming service own to internet con strictly act as conduits 9. If Reh’g Alamo Pet. competing product. 512; Recording § In tent. See 17 U.S.C. so, fast-lane similarly afford an ISP could Am., Inter Inc. v. Verizon dus. Ass’n of so) (because particu- to do to a paid access Servs., Inc., 351 F.3d net tickets to concert lar service that sells 2003). (D.C. Cir. Ticket- access to degrading events while master, might a customer lose though even that an nonetheless In the event ISP waiting for preferred seats while out to con- out on to choose to hold itself were same would be to work. The an edited service Ticketmaster offering sumers as them (or favoring disfavoring) true measures Supreme of Court ultimately upheld specific ride-sharing applications (e.g., must-carry obligations. process In the Uber), so, however, (e.g., Expedia), doing travel websites or recognized the Court (e.g., operator’s that a cable Skype), potential- video-chat services choices about which customers, ly causing programming carry respectively, to wait on its im- channels rides, plicate the First longer flight protections. to miss out on Amendment’s res- That is because a operator cable engages ervations at fares available for a limited protected in First period, activity or to fail to Amendment family connect with when it “exercis[es] editorial friends for face-to-face discretion interactions. Alter- over which stations or programs natively, include simply the ISP could block access in repertoire.” Broad., its Turner 512 U.S. altogether rather than merely slow it (internal 114 S.Ct. 2445 quotation down. omitted). marks situations, In all of those an ISP would The same cannot be said of broadband have held itself out offering its custom- providers subject to the FCC’s Order. ers unfiltered access to all internet con- operator Whereas a cable pro- draws the tent, then prevent but would them from tections of the First Amendment when it accessing impair otherwise their abili- —or exercises editorial discretion about which ty to use—selected content it disfavors. programming carry, an falling ISP with- give The First Amendment does not in neutrality the net rule represents that it right present affording ISP itself as gives subscribers indiscriminate access to neutral, pathway indiscriminate but then internet any content without editorial in- conduct itself otherwise. The Order is, operators, tervention. Cable that en- requires to act in ISPs accordance with discretion; in gage subject editorial ISPs legitimate their customers’ expectations. neutrality to the net represent rule that Nothing in the First Amendment stands they very practice do not. The bringing way establishing requirement such a operators cable within the fold the First in the form of neutrality the net rule. protections Amendment’s inapplicable providers subject case of broadband Contrary to our dissenting colleague’s neutrality the net rule. argument, Court’s Turner Broadcasting grant decisions do not ISPs reason, dissenting For our col- against First Amendment shield the net league gains little emphasizing neutrality rule’s obligations. See operators same cable recognized to have infra J., (Kavanaugh, 427-28 dissenting). Those First Amendment interests at stake in in markedly decisions arose different Broadcasting Turner also serve as broad- They validity context. addressed the under (Kavanaugh, band ISPs. See at 428 infra the First Amendment of “must- J., dissenting). colleague Our thinks it en- carry” requirements calling for cable tele- tirely illogical to conclude that those enti- operators portion vision to “devote a ties receive First protection Amendment their channels to the transmission of local when transmitting programming television broadcast television stations.” Turner must-carry obligations under but not when FCC, Sys., Broad. Inc. v. 512 U.S. transmitting internet content under the 129 L.Ed.2d 497 net rule. The distinction be- (1994); understandable, however, Sys., entirely see Turner Broad. Inc. v. comes FCC, upon recognizing operators cable ex- L.Ed.2d 369 ercise editorial discretion the former J., (Kavanaugh, at 428 rights. exercise of edi- but disclaim situation infra chief reason the net dissenting). in the latter. But the intervention torial neutrality rule raises no First Amendment Indeed, themselves operators the cable not that ISPs have lost their problem is a distinction. In Tur- evidently appreciate rights by refraining First Amendment in Broadcasting, party standing ner actively filtering the internet content from operators, presenting shoes of cable The lack of a they transmit to subscribers. behalf, briefing on their argument and oral First Amendment claim stems viable (which then stood for National NCTA was (or not) said, not have what ISPs have Association). See 520 U.S. Television Cable not) (or they have have done. from what 1174; 512 U.S. at S.Ct. holds itself provider aWhen broadband Here, again represents NCTA neutral, indiscrimi- giving out as customers capacity time in their operators, cable this their own nate access to web content of See, e.g., U.S. providers. as broadband poses the First Amendment no choosing, In Turner Ass’n, 825 F.3d at 687. Telecom provider rep- to its holding obstacle to persuaded the Court Broadcasting, NCTA you an “if That amounts to resentation. engage protected in operators that cable it, lose it” say theory, do it” not a “use or activity selecting when First Amendment theory. programming to include the television here, very Yet lineups. their channel colleague errs in dissenting Our likewise First party tellingly—raises no same — which the fearing slippery slope a under says quite challenge at all. It Amendment widely require could used web government un- party presumably a lot when the Facebook, Google, Twit- platforms such as anyone import than better derstands YouTube, ter, widely used com- or Broadcasting decisions for of the Turner Amazon, such as marketplace mercial apparently perceives no operators cable all relevant content on accept promote objection Amendment to the viable First nondiscriminatory terms. See infra neutrality rule under those decisions. net J., dissenting). Those (Kavanaugh, (That may have raised First NCTA evidently do not our col- companies share previous about net Amendment concerns but one is a member league’s concern—all neutrality see 431 n.9 obligations, infra the rule in this group supports of a J., dissenting), only magnifies (Kavanaugh, Amicus Br. court. See Internet Association forgo any objection such its decision may iv. That be in Support Resp’ts rule.) current companies, contrast part because those colleague presents dissenting Our ISPs, considered with broadband are not arguments emanat- number associated that hold themselves out common carriers ing from his belief that Turner Broadcast- neutral, affording indiscriminate access as First ing vests broadband fil- platform to their without editorial they when block protections

Amеndment sought impose If such tering. argu- content. Those and throttle internet them, they on would a characterization ments, however, away tend to fall once one contrast, Here, disagree. presumably operators cable them- understands —as repre- only to ISPs that applies the rule evidently inapplicability of selves do—the neutral, indiscriminate sent themselves as Broadcasting Turner to this case. content, and no ISP conduits to internet including Alamo rejects subject example, colleague As an our rule— charac- “use it Broadband —has disclaimed perceives what he to be the FCC’s in this court. it” of First Amendment terization conception or lose reasons, The real run in slippery-slope concerns For all of those broadband the reverse direction. Under our dissent- ISPs have no First Amendment entitle- ing colleague’s approach, broadband ISPs ment to hold themselves out as indiscrimi- would have First Amendment entitle- nate conduits but then to act something ment to block and throttle content based different. The net rule assures that broadband preferences up prom- on their own commercial even ISPs live to their ise to consumers they affording if had led customers to them neutral anticipate access to internet content of their neutral and indiscriminate access to all own rule, so, choosing. The in doing does not apparent internet content. There is no rea- infringe the First Amendment. son the same conclusion would not also service, telephone obtain the case of ‍‌‌​‌​​‌​‌​‌‌‌​‌​​​‌​‌​​‌​​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌‌​​​​‍BROWN, Circuit Judge, dissenting from

which, service, like broadband is classified rehearing the denial of en banc: carriage. as common An independent federal agency sits at if Imagine telephone provider a held the intersection of the road to the White out an indiscriminate for itself as conduit House and Constitution Avenue. Two stat- phone communications but wished to block capture struggle ues that between man impair endpoints or access to select based agency. and horse flank the The statues on provider’s prefer- the own editorial Trade,” are “Man Controlling called company ences. A telephone might, for man, they depict government, a the re- example, restrict access to certain num- horse, straining marketplace. a the Though political bers based on affiliation or other similar, they the statues look are not the company criteria. The would have an enti- road, same. theOn President’s the horse— colleague’s tlement to do so under our marketplace the threatening, as if —looks understanding of the First Amendment. topple brawny trying will man Avenue, grasp the reins. On Constitution colleague suggests Our telephone government the man—the the threat- —is companies provid- differ from broadband one, ening grasping the reins on both sides they generally carry ers do not head; of it appears try- the animal’s he is “mass communications.” at 434 n.13 Infra ing overpower sympathetic a valiant and J., (Kavanaugh, dissenting). speech But di- Here, statues, horse. as with inde- a pro- rected to finite audience is no less pendent sits at crossroads of speech tected than a available on broader competing visions—the President’s view of category scale. And the of communi- “mass consumers, threatening the Internet as cations,” event, in any hardly self-defin- government and the libertarian view ing. readily One can circum- envision strangling greatest market innovation telephone stances in which service would century. last But an orthodox view fairly be considered to involve com- mass of checks and balances leaves the choice of (text munication messages or recorded Congress. vision to voice messages designed tо reach a broad audience, instance). colleague’s Our un- Congress passed, and President Clinton derstanding providers’ of broadband First signed, the Telecommunications Act of (the “Act”), rights telephone Amendment meaning would arm and its could not companies parallel rights preserve to block or be clearer: “to the vibrant and service, phone contradicting long competitive presently filter free market that ex- ..., history regulation of uncontroversial for the Internet ists unfettered regulation.” that service. Federal State U.S.C. added). 230(b)(2) ney Cyberspace the Federal nearly For to become (emphasis § exactly As that is what decades, government the federal re- Commission. two does, respectfully I deregulatory .policy. Opinion dissent the Act’s Court’s spected it, rehearing did not en bane.1 Congresses enforced from the denial Presidents it, Federal Communications alter and the “Commission”) (“FCC” or the Commission I. regu- only light-touch gave the Internet Deregulatory The Act’s Structure beyond regulation went

lation. When touch, intervened. See light this Court passed the Telecommunica- FCC, 623, 629-30, 650- v. 740 F.3d Verizon to amend the Communi- tions Act of 1996 2014). (D.C. However, regulato- Cir. so, pro- in doing cations Act of seeks to ry proposal now before innovation animating the Internet. tect the longstanding consensus. end this Telecommunications Act of Pub. (1996) (“An 104-104, L. 110 Stat. 56 the FCC followed the Verizon No. When neutrality” promote competition Act and reduce “roadmap” implement [t]o “net regulation prices to secure heavy-handed regulation without order lower principles access, higher quality administra- services for American of Internet Obama consumers and en- Through tion intervened. covert overt telecommunications measures, pressured reject- courage rapid deployment into of new tele- FCC was Act decades-long, light-touch technologies.”). consen- communications ing this and other interac- regulating of the Internet like found that the “Internet sus favor flourished, utility. change places computer tive services have public This sea Americans, in control of Internet access. the benefit of all with a mini- Commission Mullins, Neutrality: government regulation.” B. Net mum U.S.C. Nagesh G. & of 230(a)(4) added). Chief, Accordingly, § (emphasis House Thwarted FCC How White (Feb. 2015). Congress keeping made the Internet “un- St. J. Wall poli- by “regulation” fettered” our national clear, Abandoning Congress’s deregula- 230(b)(2). Achieving policy § cy. Id. this subject than Inter- tory policy does more deregulatory commitment required a regulatory to a framework fit net access provided The Act ex- tools standards. buggy. horse The FCC’s statu- for the actly that. relegates the tory rewrite Constitution’s of framework to “a separation powers vital A parchment

mere delineation of the bound- aries;” guarantee liberty. of a hollow An Internet Access As Information (Hamilton), p. 441 The Federalist No. 73 Service (Clinton 1961). ed., If we take the Rossiter ' Supreme explained, As the structural restraints serious- Constitution’s incorporated prior prac- bon 1996 Act ly, we cannot wish Commission services,” Presidentially-imposed jour- distinguishing tice of “basic voyage on its Judges concurring today’s denial of The motions to rehear this case were filed in 1. The rehearing note will soon consid- year rehearing "[t]he [FCC] August last when would of adopting Proposed Rulemaking er a Notice of Moreover, certainly appropriate. have been existing replace the rule with a that would action, regardless of future FCC markedly at different one.” Concurral Opin- implications this Court's Panel broad of reason, they consider en banc review For this remain; may ion Court involvement point.” "particularly at this Id. unwarranted yet be warranted. course, en banc review is not now issue. Of less, provided by which are “telecommuniсa “given the fast-moving, competitive services,” services,” tions and “enhanced market” in which [enhanced were services] offered,” provided by which are “information the FCC did not subject ser them to common regulation. vices.” See National Cable & Telecommu carrier Id. nications Ass’n v. Brand X Internet Ser so, Just when exempted “in- vices, 967, 975-77, formation services” from common carrier (“Brand (2005) X’). 162 L.Ed.2d 820 regulation in it followed the FCC’s “These two origi classifications longstanding course. See id. at 1970 n , nated in the late as the Commission (“Congress passed S.Ct. 2688 the defini- developed regulate data-proeess- rules to tions in the Communications Act against ing telephone services offered over wires.” background of regulatory this history, 976, 125 Id. S.Ct. 2688. may and we parallel assume that the terms ‘telecommunications service’ and ‘informa- services,”

“Basic analogue substantially tion service’ incorporated services,” 1996 Act’s “telecommunications meaning, their as the Commission has pure capa- were defined as “a transmission held.”). The says statute “interactive com- bility path over a communications that is puter service” “any” provider includes of virtually transparent terms its inter- service,” “information and “specifically a supplied action with customer informa- system service or that provides access to computer processing tion.” Id. “IN]o 230(f)(2) § the Internet.” See 47 U.S.C. storage part was information” added). (emphasis The Act also specifically services,” “basic “other than process- excludes “telecommunications services” ing or storage needed to convert the mes- from the definition of “Internet access ser- sage into electronic form and then back 231(e)(4). § vice.” Id. ordinary language purposes into the transmitting it over the network —such Unsurprisingly, as the Act’s definition of telephone (emphasis or facsimile.” “information Id. service” fits broadband In- added). FCC, glove. The and then in ternet access like a “[Generating, 1996, services,” subjected acquiring, storing,” “making these or available “basic services,” information via these “telecommunications telecommunications” is to what do on users social media websites regulation. common carrier Id. 153(24). § like Facebook. “[Trans- See id. analogue “Enhanced services” are the to forming” “utilizing” “information via Act, “information services” in the 1996 and telecommunications” is do on what users they subject are not to common carrier “[A]cquiring, storing,” YouTube. id. See 977, regulation. Id. at 125 S.Ct. 2688. The “retrieving ... information via tele- historically Commission defined “enhanced communications” is what users do with “computer services” be those where “offering capabili- email. See id. The of a processing applications to act [were] used ty” engaging for all of these activities is content, code, on the protocol, and other exactly In- provided what is broadband information,” aspects of the subscriber’s ternet access. See id. 976-77, like voicemail. See id. at regulatory 2688. The rub with “enhanced B. service,” access, as it is here with Internet Authority To Forbear Burdensome may is that it be “offered via transmission Regulations that, themselves, may wires” constitute a Act, “basic” or “telecommunications service.” sought Before the 1996 FCC 977, id. at deregulate aspects 125 S.Ct. 2688. Neverthe- of the telecommunica- 396 added). 332(c)(2) 332 But, (emphasis § Section authority. its industry on its own

tions service only to “forbear” a commercial mobile power specifies of inherent assertions engendered (or regulations can be sub- equivalent”) common carrier a “functional See, e.g., MCI Tele judicial skepticism. regulation. carrier Id. ject to common T, AT (d)(3). v. & Corp. 332(c)(1)(A), (c)(2), comms. “Private mo- §§ (1994) 234, 114 182 129 L.Ed.2d service,” contrast, “any is mobile bile (“[T]he ‘increase desire to Commission’s one, that is not commercial service” authority provide competition’ [it] cannot may regulated as a common not be statutory filed to alter the well-established 332(d)(3). § carrier. See id. Section consider requirements.... [S]uch rate “commercial mobile service” as defines Congress, not themselves to ations address profit “provided [that] mobile service FCC, courts”); F.2d T v. AT & service available [to makes interconnected (D.C. 1992) (“We understand Cir. 332(d)(1). § public].” Id. The section flexi wants the fully why the Commission as a then defines “interconnected service” of the bility provisions the tariff apply with the is interconnected “service statute, Act.... But the Communications (as terms switched network such public it, open is not interpreted as we have [FCC]).” by the by regulation are defined construction. The Com the Commission’s 332(d)(2). § the Order Id. FCC—until congressional have to obtain mission will “intercon- always at issue defined here — course.”). policy for its desired sanction “giv[ing] subscribers nected service” admonitions, Congress gave Heeding these communicate ... capability [with] authority to forbear com public all other users on the switched in the Act. regulations carrier mon (1994) § network.” See 47 C.F.R. 20.3 Act of Pub. See Telecommunications added). (emphasis public switched “[T]he § L. No. Stat. 104-104 turn, was, as the network” defined (entitled (1996) Forbearance” “Regulatory network ... “common carrier switched inserting this section into Commu North American Number- use[s] I). Logically, Title forbear nications Act’s words, public In other “the ing Plan.” Id. lessening common carrier ance is a tool for telephone switched network” is net- expanding it. regulation, history, the Though legislative work. it is regulation to forbear Report 1996 Act’s buttresses Conference circumstances. FCC is limited to certain reading. Rep. H.R. No. this textual only to forbear when has permitted (1993) 103-213, (characterizing the at 495 carriage provision is shown the common as intercon- House version of Section 332 (1) just to ensure and reason- not needed: “the Public switched tele- nection with (2) practices; protect prices able and network,” even as both the House phone Forbearance must also be consumers. and Senate versions of Section 332 re- 160(a). § public interest. See U.S.C. network”) public ferred to “the switched added), reprinted in 1993 (emphasis C. Moreover, U.S.C.C.A.N. Mobile Broadband Cannot 332(d)(2) § refers to one network: “the Carnage Be Common words, In other public switched network.” the fact that another network can connect providers The 1996 Act also ensured of network does not make telephone mobile Internet access “shall broadband public “the part that other network of ... treated as a common carrier be purpose.” See 47 U.S.C. switched network.” II. unparalleled This success [in Internet emerged has access] the context of FCC Practice Preserved The Free policies that favor market forces over Market For Internet Access government regulation promoting the — disput- It is bizarre that the FCC is now innovative, growth of cost-effective, and ing Congress the notion would “at- diverse quality services. It is this same tempt the regulatory settle status of pro-competitive mandate that is at the broadband Internet access services” with heart the 1996 Simply Act.... put, Op. Barely the 1996 Act. See 410-11. more Congress has not required the FCC to year Act, than a Congress after the 1996 prepare and Report submit a on Univer- charged the with assessing FCC “the defi- sal Service that alters this successful nitions of ‘information service’ ... [and] Moreover, and historic policy. were the ” Act, ‘telecommunications service’ in the FCC to prior reverse its conclusions and application and “the of those definitions to suddenly subject some or all informar hybrid mixed or services ... including tion service telephone regu- respect tо Internet access.” See lation, it seriously would chill Commerce, Justice, State, Dep’ts of growth development advanced Judiciary, Agencies Ap- Related sciences to the detriment our econom- Act, 1998, propriations L. Pub. No. 105- ic well-being. and educational § 111 Stat. Some argued Congress have intended inquiring regula- What is this but into “the implementing regula- tory status” of Internet access in the 1996 tions be expanded reclassify certain Congress Act and whether was satisfied providers, information service specifical- with its scheme? ly (ISPs), Internet Service Providers report, The Commission’s known as the telecommunications carriers. Rather Report, Universal Service made several expand regulation than to new service text, confirming history, conclusions providers, goal a critical the 1996 Act and structure of the 1996 Act properly regulatory was to diminish burdens as classified Internet access service as “infor competition grew. Significantly, goal this See, mation e.g., service.” Federal-State has the springboard been for sound tele- Service, Report Joint Board on Universal policy throughout communications 98-67, Congress, FCC 13 FCC Rcd. globe, and underscores U.S. leadership ¶ ¶¶ 11513-14 11536-40 74-82 in this area. The FCC should not act to (1998) (hereinafter Universal Service Re approach. alter this port). report, In this en FCC also Ashcroft, Letter from Senators John Wen- dorsed the view of saying five Senators Ford, Kerry, Abraham, dell Spencer John “[n]othing in the 1996 Act legislative or its Wyden and Ron to the Honorable William history suggests [] intended to (Received Kennard, Chairman, E. alter the current classification of Internet 23, 1998), Mar. http://apps.fcc.gov/ecfs/ and other information services or to ex (emphasis document/view?id=2038710001 pand telephone regulation traditional added). new and advanced services.” Id. at 11520 ¶¶ parallels 38-39. As the Senators’ view FCC heeded Universal Service the conclusions Report’s, subsequent reached within the Univer conclusions in Orders. Order, Report, quite sal Service and their In view is its Advanced Services the FCC prescient, quoting Digital their letter is worth at characterized the “last mile” of (DSL length: services), Subscriber Line services “information ser- integrated dered it an Internet service furnished “broadband lines,” confirms, again, what is of rele- as a “telecommuni vice.” This telephone over Verizon, 740 F.3d at See here: the fact that an “information cations service.” vance Deployment access, re of Wire (citing service,” In has “tele- 630-31 like Offering Advanced Telecom among line Services its com- communications services” 13 FCC Rcd. Capability, munications per se make it a ponent parts does ¶¶ (1998) ¶ 3, 24012, 24029-30 35-36 service.” The Cable “telecommunications Order")). (“Advanced But, Services at X. Broadband Order was issue Brand specified the Order Advanced Services the end between

last-mile transmission A. Provider is Internet Service user and the “enhanced service” of from the distinct Brand X is itself. “The first service Internet access X, In Court left the Brand (e.g., the ... service a telecommunications “information service” classification and the second service path), transmission “unchal- cable-provided Internet access service, In in this case is an information 987-88, lenged.” 125 S.Ct. See access.” See Advanced Services Or ternet acknowledged, X also as FCC 2688. Brand ¶ der, 24030 36. acknowledged prior in its and in its Orders In the FCC issued its Cable Court, Brand X “infor- briefing before the found Broadband Order. Commission analog ... mation service en- [is] “supports modem service such that cable Act, in the 1996 and this hanced service” email, newsgroups, mainte functions as accessing includes “information service” pres world wide nance of the user’s web the Internet. See 545 U.S. ence, Accordingly ... cable and the DNS. 2688; Reply X Br. see also FCC Brand modem service” is “an Internet access ser (Mar. 2005) (explaining In- No. 04-277 vice,” making it “an information service.” ] ternet access allows the user to “interact[ Concerning High-Speed Ac Inquiry stored data ... maintained on the and Other cess to the Internet Over Cable (namely the con- facilities of the other ISP Facilities; Declarato Internet Over Cable boxes, pages, ... e-mail tents of web Regulatory Treat ry Ruling; Appropriate etc.)”). explaining why cable modem When ment for Broadband Access to Inter service,” an “information service was Facilities, 02-77, 17 net Over Cable Brand X relied on cable modem ¶ (2002) {“Cable FCC Rcd. with a com- “providing] service consumers Order”). This classification Broadband manipulating in- prehensive capability for of the fact that “cable irrespective stood high- the Internet via using formation provides the ser [enhanced modem service namely, “en- speed via ‘telecom capabilities [ ] described vice] telecommunications”— ” users, to browse the abling example, ¶ Id. 4823 39. In the case of munications.’ .... [to] mateh[ ] Wide Web World service, operator cable modem cable “[t]he type users page addresses end Web over its providing cable modem service (or on) with the into their ‘click’ browsers offering ... is not telecom own facilities (IP) of the Internet Protocol addresses user, munications service to the end but pages containing servers Web merely using rather telecommunications to access.” Id. at users wish end users with cable modem provide ¶ service relied 2688. Even as cable modem 41. The distinction service.” Id. 4823-24 stood, bring service” to on “telecommunications between the services still even as user, service” to the end cable service ren- this “information the nature of modem

399 “the nature of the functions the end user is tinuing analogy, no 'member of the access, offered” was Internet an informa- Brand X disputed Court pizzeria rendering tion the classification pizza. makes FCC would confirm that service— (em- 125 proper. See id. S.Ct. 2688 in nothing Brand X rendered Internet ac added). is, phasis presumption here cess itself a “telecommunications service.” Act, under the 1996 Internet access is Appropriate Framework for Broad information service. band Access to the Internet Over Wireline Facilities, al., 05-150, et FCC 20 FCC Rcd. Brand X cannot be read to render ¶ (2005) (“Internet 12 14862 access broadband Internet access a “telecommu- service”). service is information nications As the service.” said, “the entire Brand is question [in Z] B. products functionally

whether the here are integrated functionally separate.” or Id. at and Verizon Reclassification added). (emphasis In S.Ct. 2688 repeatedly The FCC affirmed the Act’s words, other the fact that does cable mo- deregulatory approach toward mobile service delivers the dem “information ser- broadband Internet access as well. In through vice” of Internet access a “tele- 2007, the Commission said “mobile wire communications service” render the two less broadband Internet access service services one “offer” of “information ser- does not fit within the definition of ‘com Or, vice?” is there one “offer” of “telecom- ” mercial mobile service’ because it is not munications service” the transmission an “interconnected service”—it connects to and one “offer” of “information service” in the Internet and not the telephone net the Internet access? To channel Justice Appropriate Regulatory work. See Treat pizzeria Scalia’s Brand X analogy, ment for Broadband Access to the Inter majority Brand found X cable modem ser- Networks, 07-30, net Over Wireless FCC single vice a “offer” “information ser- ¶ (2007).2 22 FCC Rcd. vice,” pizzeria’s single or a pizza “offer” of The FCC reached the same conclusion Scalia, pizza delivery. Justice con- Roaming 2011. See Reexamination of Obli trast, thought cable modem service con- gations of Commercial Mobile Radio Ser tained “offers” of “telecommunications” vice Providers and Other of Mo Providers services, and “information” respectively, Services, 11-52, bile Data 26 FCC separate “pizza delivery” “offers” of ¶ so, doing Rcd. 5431 41 In “pizza.” No of the X member Brand Court the Commission confirmed mobile broad disputed that what occurred at the Inter- band’s status outside common carrier computer-process- net Service Providers’ classification. ing facilities constituted an “information 997-1000, service.” See 545 equally This Court was consistent about 2688; 1009-11, see also id. at 125 the status mobile broadband Internet (Scalia, J., Or, FCC, S.Ct. 2688 In dissenting). Partnership con- service. Cellco v. Importantly, one of the the FCC reasons band Internet access service ... should not classifying saw no sense in mobile broad subject be ... to ... common carrier obli- band as "commercial mobile service” is the gations Congres- ... most consistent "internal contradiction within the regime sional intent to maintain a in which doing scheme” so would create with the subject service are not information status of Internet access as an information carriers.”) regulations to Title II as common ¶ service. See 22 FCC Rcd. at 5916 added). (emphasis ("Concluding that mobile wireless broad- Rule (D.C. 2012), Proposed See Notice of Verizon].” this said Cir. Court F.3d 534 14-61, 29 FCC Rcd. “statutory making, exclusion FCC provides Section (statement (2014) Tom common of Chairman providers from of mobile-internet Wheeler). No statement from the FCC— at 544. See id. When carrier status.” intervened, the President mobile broadband until after attempted to treat Verizon, felt suggested this the Commission carrier in is—ever like a common by reclassify broad compelled “treatment of Verizon minced no words—-the any “net implement common if it wanted to providers as band mobile broadband Indeed, neutrality” principles. when the section 332.” 740 would violate carriers Rulemaking explained Proposed Notice of F.3d at 650. ban on com the contours of the Order’s sure, in said Verizon To this Court be it stated mercially practices, unreasonable Act, that, of the 1996 Section 706 under “[CJodifying following goal: as FCC’s authority to “never disclaimed the FCC protect open rule enforceable providers Internet or Internet regulate the carriage per Internet that is not common id. at 638. Whatever the altogether.” See 5599, Subpart (capital- III.E se.” id. at See of interpretation Sec wisdom of Verizon’s added). omitted) (emphasis izations “reclassify the FCC did tion sim Proposed Rulemaking made Notice neutrality” implement “net broadband” to respect to its revisions ilar statements with In in that case. See id. principles “no-blocking” rule after Verizon. fact, Judge noted in dissent as Williams ¶ id. at 5595 95. here, “the Opinion from the Veri Court’s proper Section Verizon found down the rules at issue on zon court struck back- authority consistent with “the they common car ground imposed long [regulatory] drop of the Commission’s carriers, im- the broadband rier duties on at 638. That “back- history.” See 740 F.3d under the Act. See Concur permissibly so” say: “Congress clear- drop” led Verizon to Dissenting Op. (emphasis ring & the Commission ly contemplated Verizon, also 740 F.3d at 650 original); see regulating provid- Internet would continue broadband (“[R]egulating previously.” manner it had Id. at ers in the ... “obvious[ly] carriers” common would intervention in 639. Before the President’s Act.”); see also violate the Communications Verizon, the light and in this Order Moreover, did not id. at 656-59. Verizon exactly that. going was to do Commission reclassify broadband require the FCC to reclassifying broadband Internet by But future if the Commission wanted to circum- carriage, as common “the access neutrality.” “net implement any form of “entirely are differ- stances” this Order Instead, identified FCC Verizon from what considered. See id. ent” Verizon some “net implement 706 to Section at 638. reclassifi neutrality” regulations without (such “transparency as FCC’s cation III.

rules,” upheld). which the Verizon Court Order, the crafting this Commission Congressional When Lacks The Order Here took note of Verizon’s conclusions. Authorization au- here, gives at issue FCC the announcing

In the FCC The Order Order IP thority regulate public “all users of “proposed” claimed the Chairman Order addresses,” everything that connects goals rules that achieve the “reinstate In Matter of Protect- the Internet. See using the Section 706- the 2010 Order Promoting Open ing the court roadmap [in based laid out ¶ (Feb. 2015). (“Order”) down, By slowing Internet service id. ¶ Chairman, 119; according blocking to the FCC this could access to certain Internet content; amount to 50 billion interconnected de negotiation and on individualized See, e.g., Remarks of vices. FCC Chairman Internet access content between owners Wheeler, (called Tom International Institute of and Internet Service Providers ¶ (Oct. Annual “paid prioritization”), Communications Conference id. 125. prac- Some 7, 2015), https://apps.fcc.gov/edocs_public/ explicitly tices are left for the FCC to future, attachmatch/DOC-335877A1.pdf. This vast in the charging address like not different, power from two comes but relat end customers for the data used certain First, (“zero applications ed reclassifications. or Internet services FCC reclassifies fixed broadband Internet rating”), sponsored-data plans, id. ¶¶ short, access from an “information service” under 151-53. In the Order establishes I the Act to a long-term Title of “telecommunications authority over Inter- Second, service” under Title II. the FCC net access.

reclassifies mobile broadband service as an The FCC’s unheralded assertion pow- public “interconnected service” with “the already er has led some smaller Internet switched network” under Title III. Service Providers to “cut[ ] back on invest-

Both reclassifications the ments broadband Internet [in access].” See ensure.what regulatory “consistent treat- Ajit Court calls Statement of FCC Commissioner Pai ment” of mobile and fixed In- broadband On New Evidence That President Obama’s Op. By ternet access. See 724. “consistent Plan To Regulate The Internet Harms treatment,” regulatory the Court means Small And Rural Businesses Broadband 7, 2015), Deployment (May can treat Internet like http://go.usa. FCC access monopolist telephone gov/3wAkn. they railroads and ser- I doubt will be last subject pub- a common carrier Providers to lessen their vices—as investments access, utility regulation. lic The innovation of Internet or to attempt navigating technology now their prey practices regu- modern falls business around FCC regulatory labyrinth smothering the old. lation. Opinion The Court’s is blasé about grafting public utility regulation on to an Subjecting all broadband access Internet But, enterprise. Op. innovative See 734. regulation to common carrier lets FCC regulatory capture conceit of is often fatal apply requirements decide how to onerous growth, fail leading regulation to at its on Internet access. This covers by operating only pretense own aims on ways in all the which Internet Service knowledge. Hayek, F.A. The Fatal run respective Providers conduct and their of Socialism Conceit: The Errors gives businesses. The Order the FCC au- (W.W. 1991) (“The III Bartley, ed. curious determine, thority case-by-case, wheth- task of economics is to demonstrate to men “unreasonably er activities interfere they really how little know about what unreasonably with or disadvantage they imagine they design.”). can ability to reach the of consumers content, services, Reclassifying and applications of their broadband Internet access ¶ choosing.” empowered subject regu- is so as to it to common carrier Order rаtes, upends to assess the “reasonableness” of all lation the Act’s core distinction terms, practices of Internet “information service” and “tele- Service between ¶¶ See, 441-52, 512, service,” e.g., Providers. id. 522. communications and it rewrites outright statutory prohibition treating The Order also includes an ban on the on mo- practices, including: “throttling,” several bile as common carri- broadband service,” public of the and other members “enhanced Distinguishing ers. of how serious the access, years.... Regardless from “basic services” like Internet agency seeks to problem an administrative utility regulation is not subjected public address, may not exercise its author- matter, ... nor is it resolved sim- some trivial that is inconsistent with ity a manner Congress authorized FCC by whether ply administrative structure regulatory authori- degree of to have some law.”). problem here enacted into Drawing this distinc- ty over the Internet. ignores legal analysis characteristic” of the the Court’s essential tion is “the —it “major flowing from the Corp., consequences 512 MCI Telecomms. 1996 Act. Cf. 231, question” determination. 114 2223. “What we have at S.Ct. U.S. here, reality, a fundamental revision in is recog- John Marshall As Chief Justice statute, a changing it from scheme of the long ago, there is a difference be- nized regulation carrier for telecom- of’ common important subjects, which tween “those services, to common carrier munications by legisla- entirely regulated must be when that of information service

regulation interest, itself, in from those of less ture merely has telecommunications service made, provision may be general which a component parts. its id. among services Cf. to those who are to act power given idea, good a but it was not may “That be up to fill general provisions under such in Congress enacted into law the idea Southard, Wayman v. 23 U.S. details.” See 232, 114 S.Ct. 2223. See id. 19[96].” (10 Wheat.) 1, 43, 6 L.Ed. 253 problem. lies the Therein the deference courts afford to Accordingly, Chevron, under agencies administrative A. U.S.A., Inc. v. Natural Resources Defense Question Major Of Reclassification 837, 2778, Council, Inc., 104 S.Ct. 467 U.S. Requires Congressional Clear (1984) “premised L.Ed.2d 694 is on 81 Authority ambiguity consti- theory that a statute’s delegation Congress say turning implicit tutes an might tempted be

One statutory gaps.” fill in the utility agency is obvi- public access into a Tobacco FDA v. Brown & Williamson “major deep economic ously question” 120, 159, 1291, 120 con- 529 U.S. S.Ct. significance any Corp., other political — (2000) Chevron, (citing 121 146 L.Ed.2d straight-face fail the test. clusion would 2778); 844, exhibits 104 S.Ct. see also But, qualms. no such 467 U.S. the Court FCC, v. course, Opinion La. Pub. Serv. Comm’n Op. 704-05. Of 355, 374, 106 90 L.Ed.2d 369 dispute the FCC’s S.Ct. does not—and cannot— (1986) “literally ... (holding In- the FCC has “major question.” implicates Order act ... unless and until Con- deed, already power characterized no the Court has it”). upon In other “major gress power confers neutrality” regulation as “net words, statutory “a the mere existence of the distinct sali- question,” even without enough ambiguity,” Op. per neu- see “is brought by implementing “net ence agency’s to warrant deference to the reclassifying broadband se trality” through Verizon, ambiguity must be interpretation. 740 F.3d at Internet access. See (“Before appear Congress that analysis, we such as to make beginning our implicitly delegated au- explicitly that ... either important emphasize think it ambiguity.” that Am. Bar thority to cure question implicates of net Comm’n, 430 F.3d have en- Ass’n v. Fed. Trade policy questions, serious which (D.C. 2005); businesses, lawmakers, see also Brown & Cir. gaged regulators, Williamson, 529 U.S. at 120 S.Ct. matter of “such economic political sig (requiring agency an in to bear mind nificance” would not occur “in so cryptic a statutory “the fundamental canon of con- fashion”); v. Whitman Am. Trucking struction the words of a statute must Ass’n,

be read in their context and awith view to (2001) L.Ed.2d 1 (“Congress ... does not place statutory their the overall alter the fundamental regulato details of a scheme”). ry scheme in vague ancillary terms or (cid:127) provisions not, agency’s An does regulate might say, freedom to on a one —it elephants mouseholes.”); matter via a hide ambiguity therefore MCI Tele Congress turns on what authorized —and comms. Corp., 512 U.S. at (“It latter determination “shaped, at 2223 is highly unlikely measure, least some the nature of would leave the determination of whether 125, 120 question presented.” See id. at industry entirely, will be or even sub 1291; Ass’n, see also Am. Bar 430 stantially, rate-regulated discre agency F.3d at 469. Is the regulating on a unlikely tion—and even more that it would “major question” of deep economic and that through achieve such a subtle device political significance, regulating or is it on permission ‘modify’ to rate-filing re an interstitial If Congress matter? is not quirements.”). going subjects” to leave important “those The Court fails to fairly engage this “itself,”

to but agency instead authorize an review, standard of overrating both the them, regulate to on implicit an authoriza e statutory rol of the ambiguity here and tion is insufficient. expect Congress “We to underrating application the of the clear speak clearly if it assign wishes to to an major statement to questions.3 rule After agency decisions of po vast economic and jumping right into Chevron’s two-step def significance.” litical Regulatory Util. Air — analysis, erence the Court’s Opinion treats EPA, —, Group v. U.S. 134 S.Ct. X coup Brand as the grace any de for (2014) 2427, 2444, 189 L.Ed.2d 372 — requirement of clear congressional authori (UARG); Burwell, U.S. —, King v. Yes, Op. zation. See 701-05. Brand X did 2480, 2488-89, 135 S.Ct. 192 L.Ed.2d 483 (2015) (“[H]ad uphold the FCC’s determination that the Congress assign wished to “offering” of “telecommunications service” [extraordinary] question agency, that to an in Title II of the surely it Communications Act is expressly;” would have done so requiring ambiguous. the See 545 U.S. at interpret Court to the stat 125 “statutory for a S.Ct. 2688. But this ambiguity” ute de novo clear statement of con authorization); gressional does not the reclassify Brown & Wil allow FCC to liamson, 529 U.S. at any S.Ct. 1291 broadband Internet access without (authorizing agency regulate judicial on a scrutiny. Op. serious But see 704. address, Unfortunately, 3. may cavalier treatment of the trative seeks ... it requirement major ques- clear statement exercise its in a manner that unprecedented. tions is not When ad- Verizon inconsistent with the administrative structure neutrality'' implicated major mitted "net law.”) Congress enacted into with Brown question, quoted Brown & Williamson s Williamson, & at 120 S.Ct. (though, perhaps standard of review avoid then, apply But 1291. did not the Verizon on, facing the ‍‌‌​‌​​‌​‌​‌‌‌​‌​​​‌​‌​​‌​​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌‌​​​​‍clear statement rule head Veri- analysis, clear statement see 740 F.3d at quote quoting chose to a case Brown & zon concluding cry” instead that the case "is a far Williamson, itself). not Brown & Williamson Williamson, despite sup- from Brown & its Verizon, Compare ("Regard- 740 F.3d porting quotation. See id. at 638. problem less of how serious an adminis- X was the focus of Brand to end users” “statutory ambigui that a mere fact did not chal- does not because purposes for some ty” exists ... “enabling] fact that users lenge the agency to reach mean it authorizes is informa- browse the World Wide Web” context and major questions statutory — 125 S.Ct. See 545 U.S. considered. tion service. must be scheme the overall Opinion re- response, In the Court’s UARG, at 2441 2688. See, e.g., a full read- crying claiming (“[WJhile rejected EPA’s sorts Massachusetts wolf— in place X would “freeze ing of Brand greenhouse contention categorical existing classifications of pollutants’ for Commission’s not be ‘air gases could services,” which neither Act, various it did not embrace purposes Op. 703. But nor Brand X intended. See current, categorical position equally EPA’s Yes, X point. Brand found pollu air this misses gases must be greenhouse ser- “offering” of “telecommunications regardless of the purposes, all tants for X context.”) yes, And Brand allows original); ambiguous. vice” (emphasis statutory n.1, particulars” to assess the “factual Whitman, 121 S.Ct. FCC at 469 (“None changеd technology. broadband of the CAA of the sections But, nothing has U.S. at Circuit the District Columbia which “in- statutory term EPA to consider Brand X renders authority for the found 109(b)(l)’s indistinguishable in formation service” prominence § costs shares scheme.”). Computer “telecommunications service.” When the overall an “en- at ISP facilities remains backdrop against processing statutory context and car- exempt hanced from common the 1996 Act are service” Congress passed which X, 47 U.S.C. considered, rier status under the statute. See they were in Brand 231(e)(4). 230(f)(2), §§ reinforces 'the decision Supreme Court’s assign to show a textual need for FCC be- By incorporating FCC’s distinction reclassify it can authority before ment of “basic ser- tween “enhanced service” and as common car Internet access broadband scheme, statutory and vice” into the riage. Internet access on the “enhanced placing side, Congress prohibited the Opin- service” posits Court’s Order —and construing “offering” reading of FCC from approves ion untenable —an “in- service” to be the longer no offers “telecommunications pizzeria Brand X: the of Internet access. See delivery,” just it offers formation service” “pizza “pizza” ¶ (“After words, Report 39 the Universal Service “delivery.” In other because statutory of the lan- “information infor- careful consideration retrieving service” of history, we affirm guage legislative includes from websites mation service,” findings that telecommunications every aspect prior our “telecommunications information service the 1996 just is now a service and of that “information service” exclusive.”) See, mutually (emphasis e.g., Act are “telecommunications service.” Or- States, ¶ added); also Sekhar v. United to wave off this see der 195. The Court tries - -, 2720, 2724, 186 X “fo- U.S. 133 S.Ct. by quickly saying Brand problem (2013)(“[I]f L.Ed.2d 794 a word is obvious- nature of the functions broad- cused on the users, ly transplanted legal from another source offered to end not providers band it.”); brings ... it the old soil with see also pathway” the transmission length Gardner, true, nothing it to Brown v. U.S. Op. 702. This is but does (1994) (“Ambi- L.Ed.2d 462 As the histo- S.Ct. support position. the Court’s reveals, possi- not of definitional guity “the nature of is a creature ry explained above context.”); bilities functions offered but broadband cf. Williamson, goes beyond Brown & 529 U.S. at the meaning that the statute (“In statute, adopting S.Ct. 1291 each Con- bear, can ... policy Commission’s can gress against backdrop has acted justified be if only it makes less than repeated FDA’s consistent and statements radical or change fundamental in the that it lacked under the FDCA Act.... The attempt Commission’s to es ”). regulate tobacco.... The issue there- tablish that no more than that is involved fore, is not whether can tech- assess greatly understates the extent to which its access, nological changes to Internet or policy deviates from require- the [Act’s] reasonably whether FCC has discretion to mentfs], greatly undervalues the im construe the of “telecommunica- “offer” portance requirement[s].” of the [Act’s] by considering tions service” trans- MCI Corp., Telecomms. part of the mission “information service” 2223; UARG, see also transmits, or considering the transmission (“Thus, at 2442 an agency interpretation itself an “offer” of “telecommunications that is design with the inconsistent] separate service” “information structure of the statute as whole ... Rather, service” it transmits. the issue is deference.”). does merit whether FCC can use this discretion to transgress congressional distinctions and Perhaps explains why this the Court’s as the distinction definitions —such drawn Opinion foregoes statutory analysis. On between “Internet access service” and issue, issue after puts agency the Court services,” “telecommunications see 47 ipse analysis dixit where reasoned should 231(e)(4), § U.S.C. or the definition of “in- be: services,” computer teractive which ... “means information service in- First, as to the 1996 policy Act’s state- cluding specifically system a service or ments, simply parrots the Court the Com- Internet,” provides access to the id. speculation mission’s that it “unlikely [ ] 230(f)(2) added). § (emphasis Nothing, not attempt would to settle the regu- deference, even Chevron makes “a statuto- latory status of broadband Internet access ry ambiguity,” Op. see a tool to over- an oblique services such and indirect congressional ride standards. manner, especially given opportunity Congress has declined to authorize “net adopted to do so when it the Telecommuni- kind, neutrality” legislation any of let alone Op. cations Act of 1996.” See 702-03. But its of revisit classification Internet access the clear statement requires reading rule outside the realm as of common carrier statute, nodding along not with the regulation. practice, The FCC’s historic agency. may Broadband Internet access be together Congress’s taken refusal to sophisticated more than Internet access authority, obligates cede this us “to defer 1990s, from the change but this does not agency’s expansive not construction statute, Congresses] of the but to nature broadband Internet access. consis judgment.” Williamson, tent X, See Brown & 545 Brand U.S. Cf. 160, 120 529 S.Ct. 1291. (“In event, we doubt that a stat- that, subjected ute example, offerors of

B. (such ‘delivery’ Express service as Federal Congressional Authority No Clear Service) and United Parcel to common-

To Reclassify regulation unambiguously carrier would require pizza-delivery companies to offer agency’s interpretation “Since an of a not delivery statute is entitled to deference when it their services on a common earri- [too].”)-4 tion reclassification. Court policy Act’s state- without er basis specific just ignores fulfilled in it. are ments ignores Opinion but the Court’s provisions, Third, nonsensically permits the Court them. by em- broadband’s reclassification mobile Second, makes min- Opinion the Court’s of “the bracing the Order’s redefinition and sends the Univer- cemeat of Verizon The Court’s public switched network.” silently night. into the Report sal Service Order, “the like the redefines Opinion, the Universal Ser- here claims The Order “encompass network” to public switched binding “not a Commis- Report was vice and tele- using both IP addresses devices ¶ as inex- 315. This is sion order.” Order Op. numbers.” See 719. Since mobile phone unexplained. it The Order as plicable allows users to broadband Internet access why the principled no reason provides access Voice-over-Internet-Protocol Report report Service Universal —a (such (“VoIP”) applications Skype), Congress FCC Commissioners —should “gives concludes mobile broadband dismissed, why repeated nor be capability to communicate subscribers Report Service citation to the Universal But users.” See id. at 719. telephone ignored. The Court prior should be Orders Congress which enacted backdrop against issue, its on this assessment is silent never de- the 1996 Act confirms the FCC history. It claims is revisionist Verizon “the switched network” to public fined it not believe” Verizon left with FCC “did the tele- anything beyond mean other or reclassify broadband In- any choice but to network, IP certainly public phone a “telecommunications ternet access as Indeed, distin- addresses.5 itself “net implement if it wished to service” public “the switched network” and guished Op. 707. But as neutrality” principles. See Congress passed the the Internet. When upholding transparen- of FCC’s Verizon’s distinguished Spectrum Act rules, the from FCC Chair- cy statements Internet” “connectivity” public to “the Wheeler, Notice of man and this Order’s “connectivity” switched public to “the confirm, Proposed Rulemaking together 1422(b)(1). § network.” See 47 U.S.C. This path false. The FCC identified a this is can subsequent, specific distinction inform neutrality” regula- “net implement some ¶ Order, Nor, 84 FCC 2d n.3 incidentally, does the Act's exclusion service” those services from "information This Court said the same 1982. See control, FCC, management, opera- "the that are Comm. v. Ad Hoc Telecomms. Users system or the (D.C. 1982). tion of a telecommunications equation F.2d Cir. This [pur- management aof telecommunications key premise cell provided a to the FCC’s provide pose]” the Court or Commission policy service in 1992. See Amendment of 153(24). § A any See 47 U.S.C. assistance. Relating to Part 22 of the Commission's Rules contrary would mean that Con- conclusion Public Cel License Renewals in the Domestic access, gress Internet in 1996 considered Service, Telecommunications lular Radio functions, computer-processing a "ba- all its ¶ 91-400, 719, (1992). 9 FCC 7 FCC Rcd. 720 service,” provided by Bell able to be the sic Indeed, public expand “the the calls companies. System There is no evidence of network” to include the “network of switched Act, longstanding practice, that in Order, networks,” were cited in the current Brand or in X. Implemen rejected by Compare in FCC 1994. 3(n) of the Com tation of Sections and 332 again leading up to the Telecom- 5. Time Act; Regulatory Treatment of 1996, munications equated Act the FCC munications of Services, 94-31, FCC Rcd. Mobile 9 public the tele- "the switched network” with 53, ¶ ¶ 1411, (1994) 1436-37 59 with 1433-34 phone the case in 1981. See network. This was ¶ Co., Op. 1145. Mem. Order 396 n. Applications Winter Park Tel. of

407 public what “the switched network” meant a service public interconnected with “the Congress in switched network.” 1996. See Brown & Wil liamson, at 529 U.S. 120 S.Ct. 1291 Fourth, get Court lets FCC away (“[T]he meaning may of one statute be satisfying none of statutory re Acts, by other particularly affected where quirements to forbear carriage common Congress spoken subsequently has and regulation. judiciary should take care hand.”). specifically topic more at to ensure the Commission rigorously ap The Court has no basis to claim it is plies these standards accordance with' equate public “counter-textual” to “the the 1996 Act’s overall scheme. Even as public switched network” with “the designed forbearance is to further freedom telephone Op. switched network.” See Act, 718 in the giving agency power to omitted). (emphasis Not even the Court statutory requirements eviscerate is “as can claim VoIP services make tonishing mobile even administrative stan Phillip broadband and the dards.” See telephone Hamburger, network a Is Adminis (“[T]he single network. id. at 719 VoIP Under trative Law Unlawful? Constitution, our provision “[t]here service sends the call from IP is no her tablet’s ... that authorizes the President [or address over the mobile' broadband net enact, agency] amend, executive or to the telephone work to connect to network repeal City statutes.” Clinton v. New and, ultimately, to her friend’s home of York, 2091, 141 524 U.S. 118 S.Ct. added). phone.”) (emphasis Nothing about (1998).6 L.Ed.2d 393 of accessing increase consumers mobile broadband Internet service via smart power may “[T]he to enact statutes 719-20, phones, see speed id. of only be single, exercised accord with a connection, Internet id. at or the finely wrought exhaustively consid- “bundling” of applications VoIP with smart ered, 439-440, procedure.” Id. 118 S.Ct. 720-21, phones, id. at undermines the power intrinsically This legisla- tive; FCC’s 2007 distinction between the trans delegated away it cannot be from the mission of VoIP traffic and the VoIP ser legislature. Congress delegated When has vice to the end user. Mobile broadband authority allowing “suspension” simply “repeal” access does not constitute of provisions, “Congress that, rulemaking may argument though nominally 6. The FCC’s here “take [a] there is an ], FCC, ‘legislative’ independent agency, general ... form[ [it] [is] [an] but exer as a matter, cise[ ] of—indeed under our constitutional should be treated like an executive [it] exercisеf] structure must be of—the never [an] because created a for- ” City Arlington prohibiting 'executive Power.' See v. cause removal statute "the Presi- of , — —, n.4, supervis[ing], directing], [from] dent and re- FCC (2013) origi (emphasis moving] 185 L.Ed.2d 941 at will the” FCC Commissioners. See nal); Stations, Inc., Bureau, Corp. FCC v. Fox TV PHH v. Consumer Fin. Prot. 502, 524-25, (D.C. 2016). 173 L.Ed.2d 738 F.3d Cir. "We n.4 need not (2009) ("In case,” however, judgment, question [Justice Stevens’] tackle that in this id., agent Congress rulemaking FCC is better viewed as an because the exercised here part Leaving change than as of the Executive.... facilitates a in the execution and en- unconstitutionality giv aside the a scheme forcement of the Act—this must be executive Power, ing power agents City Arlington, laws to see 133 S.Ct. at 1873 enforce n.4; Stations, Congress, it seems to us that Justice Fox TV 556 U.S. at [Stevens’] ("The prem conclusion does not follow from his S.Ct. 1800 Administrative Procedure ise.”) added); Act, all, (emphasis apply see also 47 U.S.C. after does not and § (creating agencies,” only the FCC to "execute and en its to executive ac- [Act]’’).Moreover, tion). provisions force the of this It also used forbearance only abuse. suspend or re- FCC’s decision made the itself pervert requirements. the Act’s at issue provisions peal particular the particular events occurrence upon the enactment, only and it subsequent left C. events whether such determination President,” in this or up occurred Authority Forbearance Perversion Of case, id. at the FCC. See use of its forbearance FCC’s added). words, In other (emphasis is “an enormous and confirms this Order statutory may alter stan-

only Congress regulato expansion its] [of transformative the President is left agency dards^—an congressional clear ry authority without findings factual about to make simply thus, and, “unreasonable.” authorization” ap- should legal those standards whether UARG, By 134 S.Ct. at n.8. FCC ply- admission, own the Act’s com Chairman’s Yet, opin- noted in his Judge as Williams do not contem regulations mon earner here, massive for- ion “the Commission’s So, the Internet access. plate broadband findings that the bearance without [came] merely reclassify cannot broadband Order stat- justified” under the forbearance access, Internet it must also “modernize Concurring & Dis- ute’s conditions. See II, century.” tailoring it for the 21st Title 775; also id. at 775-78. senting Op. see Wheeler, Tom Tom FCC Chairman reclas- and the Court found Both Net This is How We Will Ensure Wheeler: a “telecommuni- sifying Internet access as (Feb. 4, 2015, 11:00 Neutrality, Wired forbearance, service,” coupled cations AM), https://www.wired.com/2015/02/fcc power even without would be within chairman-wheeler-net-neutrality/. As the underlying cir- change conceded, required “taking this Chairman factual access. See Order cumstances Internet legal construct that once was used for ¶ words, n.993; Op. 706. In other pairing it back to phone companies concludes the FCC’s forbearance Proposes Treating All modernize it.” FCC anything to do with factual need not have Equally, PBS NewsHour Traffic is free to re- findings Commission (PBS 4, 2015, Feb. television broadcast —the fit. statutory write terms as sees Used PM), http://www.pbs.org/newshour/bb/ 6:35 way, usurps the exclusive- this forbearance fcc-proposes-treating-all-internet-traffic- lawmaking be- ly-legislative function of equally. effect, cause, legal practical both “[i]n acknowledges tailoring its The Order of Con- [an] Act[ ] has amended [FCC] requirements so the Act’s common carrier gress by repealing amending] por- [or Internet access is capture as to broadband Clinton, 524 U.S. at tion.” See “extensive,” “broad,” “[a]typieal,” and “ex- 2091; UARG, see also II least 30 Title pansive” including — (I principle of 2446 n.8 am “aware of no un- provisions promulgated and 700 rules allow an administrative law that would ¶¶ 37, der them. See Order agency to rewrite such clear [] 493, 508, 512, says 514. The Order also this term[s], contemplate shudder [I] in a modern- level of forbearance results have principle w[ill] the effect that such II “never” before contem- ization of Title governance”). on democratic ¶¶ 37, Opin- The Court’s plated. See id. nature of disregard and the

Troubling the failure to follow the ion Order is, forbearance. is not requirements Act’s Now, permits tory. Forbearance the FCC to reduce when the Commission’s aim is carriage regulation common over telecom regulation, increase this Court is willing munications, expand carriage common to bless the Commission using forbearance regulation by reclassifying an information without satisfaction of the statutory common shaping carriage reg service and requirements, and at odds with the nature ulations around it. The FCC has consis of forbearance itself. this,

tently invoking understood forbear generally-applicable UARG cited tenets “Congress’s ance toward one of primary of separation administrative law and the of “deregulate aims in the 1996 Act:” tele powers some Clean Air Act novelty— —not communications markets to the extent when it said power “[a]n has no See, possible.” e.g., Op. Memorandum & legislation ‘tailor’ policy to bureaucratic Order, Qwest Corp. Petition of for For goals by rewriting unambiguous statutory 160(c) § bearance Pursuant to 47 U.S.C. terms.” 134 S.Ct. at 2445. The Court Area, in the Omaha Metro. Statistical blithely ignores its “severe blow to the (2005); FCC Rcd. see also separation powers” Constitution’s of of of Anchorage, Petition ACS Inc. Pursu reading the FCC’s forbearance ant to Section 10 of the Commc’ns Act of lessen, expand, rather than common 1934, Amended, as for Forbearance from regulation carrier legislature’s ex- 251(c)(3) 252(d)(1) & in the An Sections pense. See id. at 2446. provides The Court Area, chorage Study FCC Rcd. problems no answer to the public ac- ¶ (2007) (referring “deregu- 1969 16 to the countability liberty and individual with its latory statutory aims” of FCC’s forbear mere assertion of forbearance being a Court, however, authority). ance The “statutory Compare mandate.” Op. 706 argument foreign makes an Clinton, 451-52, 524 U.S. at Act. The Opinion rapid deploy claims “the J., (Kennedy, concurring). If the FCC ment of new telecommunications technolo possess statutory is to forbearance author- gies” “might promulgation occasion the ity, it should conform to forbearance’s stat- regulation.” Op. Congress, additional utory statutory conditions and the overall however, clearly did not consider the 1996 scheme. Neither is the here. case goals promoting competition Act’s and — FCC’s abuse of forbearance amounts to reducing regulation tension with “the —in rewriting the 1996Act in the bowels of the rapid deployment of new telecommunica state, peti- administrative when it should Rather, technologies.” tions the Act’s obvi purportedly-neces- tion for these reading that more competition ous is sary changes. regulation lower would lead to increased deployment of new telecommunications

technologies. ensuing history of Inter IV. Congress’s poli net innovation vindicated Presidential Interference cy choice. Understanding expansion regulation common carrier affirma somersaults, When all the re- do, good, tive as the Court seems to history, judicial visionist abdication foreign to the Act. done, lingering are are we still left with question: Why, verge announcing on the irony There is a sad here. Both this Open a new in 2014 that Court and the Court admonished Order implemented neutrality” princi- both “net asserting the FCC for forbearance author- ity ples Internet ac- congressional preserved without authorization broadband service,” deregula- when the Commission’s aim was an “information would the cess as “stunned of reclassify The President’s statements broadband FCC instead FCC;” “the statement[s] Presi- ficials at public utility? Simple. a access as by giving boxed in FCC [the Chairman] the FCC to do it. pressured dent Obama may not the FCC’s two other Democratic commis held “an This Court once against anything cover to vote fall simply to conform sioners repudiate precedent position.” G. ing [the President’s] Nat’l Black short of shifting political mood.” with Mullins, FCC, 342, Neutrality: Nagesh 356 n.17 & B. Net v. 775 F.2d Media Coal. (D.C. 1985). Alas, Chief, the How House Thwarted FCC here we see White Cir. (Feb. Moreover, 4, 2015). Pres the rule. Wall St. J. exception that kills statements were issued ident Obama’s of Pro- released its Notice The FCC that the had “outside of window FCC May of 2014—where posed Rulemaking comments,” public for but the FCC set that broadband Internet would it was clear Kathryn A. accepted anyway. them See reg- for common carrier not be reclassified Control, Watts, Controlling Presidential Afterward, unusual, “an secretive ulation. 683, (2016); also 114 Mich. L. Rev. see began “inside the White House” effort” Internet, Open To A Free And The Path getting activists interested with https://www.whitehouse.gov/net-neutrality change position. Nagesh its See G. FCC (identifying in a timeline that “[t]he Mullins, Neutrality: How White & B. Net Sep to a on period comment close” c[ame] Chief, House Thwarted FCC St. J. Wall 15, 2014, tember but “President Obama (Feb. 2015). House were White staffers up strong on the FCC to take call[ed] process open- directed “not to discuss neutrality” possible protect est rules to net is, why can see FCC ly.” Id. One —the 2014). on November all, independent to be supposed after See, “essentially e.g., Humphrey’s control. The President’s efforts Presidential States, neutrality” of “net compromise” 624- killed the Ex’r v. United Nagesh G. & B. 79 L.Ed. 1611 without reclassification. Mullins, Neutrality: Net How White private In House’s addition to White Chief, House Thwarted FCC St. J. Wall meetings, the President issued online (Feb. 2015). The FCC Chairman (from China, any irony) urg- video without delayed release of the new promptly Order subjugation of broadband Internet ing the position. to consider the President’s See regulation. access to common carrier Tom FCC Chairman Wheeler’s Statement Mullins, Neutrality: Nagesh G. & B. Net on President Barack Obama’s Statement Chief, How White House Thwarted FCC (Nov. 10, 2014), Regarding Open Internet (Feb. 4, 2015); see also The St. J. Wall https://apps.fcc.gov/edocs_public/ Message Neutrality Net President’s On attachmatch/DOC-330414A1.pdf. “On Feb (Nov. 10, 2014), https://www.whitehouse. ruary along voted 3-2 FCC (“To put protec- these gov/net-neutrality party regulate lines to broadband Internet asking I am place, tions public utility as a under Title II of service reclassify Internet service under Title II of Act, voting thus Communications the Telecommunications law known as aligned net rules with [Presi Act.”). In the state- President’s written Watts, own-plan.” dent] Obama’s Control ment, he this reclassification should said Control, ling Presidential 114 Mich. L. facilitated “at the same time forbear- be Rev. at 741. ing regulation provi- from rate and other spectrum agreement There is a wide sions less relevant to broadband services.” that the President’s intervention into the Id. was, Control, respect FCC’s deliberations dential Mich. L. Rev. at 719 reclassification, (“Pai broadband’s outcome de clearly correct that President Oba- spectrum terminative. This includes a for played key ma causal role in the FCC’s Special mer Assistant to President Obama approach shift in its and ultimate decision neutrality” current “net advocate. See broadband.”). reclassify Crawford, A Susan Tale Two Commis Despite President “key Obama’s causal sioners, (May 2015), BackChannel role” behind the FCC’s flip, reclassification https://backchannel.com/how-the-fcc-found- his goes involvement virtually unmen- its-backbone-960331bfac95#.s1rj231ui tioned the Order. In the course of the (“[T]he FCC, although an independent Order’s hundreds pages and more than agency, speeches can read the President’s footnotes, one, a thousand there is indi- else, everyone change like sense the in the rect, reference to President Obama’s advo- wind, and act accordingly.”). It includes a cacy, buried in the middle of a footnote. dissenting FCC Commissioner. See Order ¶ See Order 416 n. 1223 a (quoting letter (dissenting statement of Commissioner asking whether “the push President’s for Pai) (“So Ajit why changing is the FCC Title II reclassification would affect” a Why course? is the turning FCC its back investments). company’s broadband De- on Internet freedom? Is it because we now spite the dearth of reference to the have evidence that the Internet is not involvement, President’s two footnotes Is it open? No. because we have discovered Avithin the Order contain citations to problem with our prior interpreta some characterizing sources the approach the tion of the law? No. are flip-flopping We ultimately FCC would take toward “net for one reason and one reason alone. Presi neutrality” as President “plan.” Obama’s so.”). dent Obama told us to do It includes ¶ ¶35, See Order 40 n. 416 n. 1220. Report Majority from the Staff of the The President’s conduct—and the in- Security Senate Committee on Homeland volvement of House gen- White staff more Affairs, and Governmental which investi erally questions about the form and gated the White House’s involvement in —raise substance of executive Power. Unfortu- Majority the FCC’s deliberations. See nately, questions none of these were ad- Report, Staff Committee on Homeland Se (Ron by dressed the Court. Given the salience of curity and Governmental Affairs Johnson, our Chairman), questions sepa- these Constitution’s Regulating The In powers, ration of this Court owed the ternet: How The House Bowled White (Feb. 29, people legal analysis, *2 American Independence, Over FCC not silent 2016) http://Avww.hsgac.senate.gov/ obedience. download/regulating-the-internet-how-the-

white-house-bowled-over-fcc-independence A.

(citing internal correspondence A Double Standard conclude, the “influence President Oba- [of questions by of form raised disproportionate was relative to the ma] involvement the rule- President’s concern public,” comments members of the making procedures designed to ensure “pause” that his involvement created a public accountability namely, the FCC’s Avithinthe FCC’s deliberations so to build — reclassification). regulations argument parte on ex communications legal It adherence to notice comment re- professors ultimately also includes law sure, rulemaking To not sympathetic quirements. Aviththe President’s interven- be See, Watts, e.g., Controlling process, tion. Presi- a “rarified technocratic unaffected download/regulating-the-internet-how-the presence or the by considerations political -white-house-bowled-over-fcc-independence Club v. Cos power.” Sierra of Presidential 1981). (D.C. (“The tle, Cir. reviewed the Commit F.2d documents held, And, need for dis have “the Wheeler as we tee make clear Chairman in some set conversations closing parte presidential ex regularly communicated with require that courts know tings do[es] communications re advisors. None of the every House con the details of White by the Committee were submitted viewed FCC, at 407. The howev tact. ...” See id. in the form of to the FCC’s formal record er, regarding parte ex has its own rules [Open Inter parte although ex notices contacts, would be House and White discussed.”). clearly Order was net] aware of them. reason to know of its White House had parte ex obligations under the FCC’s Proposed Notice of Rule-

The Order’s. See, from e.g., Deputy rules. Memorandum detailed some of making referred Attorney Gen. John O. McGinnis Assistant No parte requirements. See the FCC’s ex Deputy Counsel to President Proposed Rulemaking 5624-25 tice of ¶ Bush, 1 alia, Op. H. 15 O.L.C. parte George FCC’s ex W. (citing, inter 1991) (Jan. rules, §§ seq.). (assessing propriety 1.1200 et the of 47 C.F.R. Wheeler said the Commission between parte Chairman ex communications White “incorporate FCC, the President’s submis concluding would House officials and the Open Internet into the record of the sion by that “communications the White House Tom Proceeding,” FCC Chairman Wheel rulemaking must be disclosed in the FCC President Barack Oba er’s Statement on they signifi are record substantial if Regarding Open Internet ma’s Statement clearly cance and intended to the affect (Nov. 2014), https://apps.fcc.gov/edocs_ decision”) added). In (emphasis ultimate public/attachmateh/DOC-330414A1.pdf. short, the Order and its administrative But, statement nor neither the Chairman’s many about questions record leave us with President was explain why the Order the his of the President and involvement allowed to make his submission after questions significant made us staff — Watts, period expired. See Con- comment knowing enough to know the Presi Control, 114 L. trolling Presidential Mich. outcome determi dent’s involvement was Rev. at 741. Nor does Commission native. why public further comment explain ever parties thought the Perhaps the involved not solicited after the President inter- was advocacy neu- public President’s of “net stating he despite the Chairman vened— trality” through reclassifying broadband further comment. The Order’s welcomed provided access sufficient ac- record does not establish whether House countability; excusing the White communications between White House following Perhaps the FCC’s rules. the Com- staffers and the FCC satisfied paid no mind to the matter be- the FCC communi- regulations parte mission’s on ex many filed comments endors- cause (or why cations these communications neutrality” regula- “net rules). ing some form of Major- exempt were from these during period. tion the comment Whatever on Homeland ity Report, Staff Committee (Ron “effectively course creat- thinking, this Security and Governmental Affairs very proceedings: two different First Johnson, Chairman), ed Regulating The In- there was the FCC’s conventional notice- Bowled ternet: How The White House (Feb. 29, with its proceeding replete and-comment Independence, *25 Over FCC 2016) re- procedures formalized and deadlines http://www.hsgac.senate.gov/ (quoting Fund, of comments and 35 Free garding Enterprise submission 3138). emerged contacts. Next differ- U.S. The Constitu parte ex are, structural ent, themselves, tion’s features proceeding,” real-world the one more legal procedures designed safeguard lib outcome-de- provided where the President erty by preserving public Watts, accountability terminative influence. See Control- against the current political pri moment’s Control, ling Presidential Mich. L. orities. A President may attempt to shape at 741. This the notice-and- “leav[es] Rev. an agency’s deliberations so as to vindicate political pro- and the proceeding comment the Constitution’s structural allocation of ceeding disconnected from one another power; ensuring the exercise executive pro- the notice-and-comment mak[es] Power publicly-ac is consistent with the look like no more than a smokes- cess See, Costle, countable e.g., executive. only id. Rules are for Ameri- creen.” See (“The F.2d at 405 power executive under lack in high places. cans who friends Constitution, all, shared[;] our after is not clear, suggesting To be I am not exclusively it rests with the President.... legitimate no of inter- President has means Founders potential [T]he chose to risk the into an rulemak- jecting agency’s himself tyranny inherent placing power am I ing process. suggesting Nor one person, gain order to the advan bring independent President should not tages accountability single fixed on a the Exec- agency’s executive actions within source.”). But if by the means which the Branch. utive See Free Enter. Fund. v. President seeks to shape agency’s de Bd., Accounting Oversight Pub. Co. transgress legal procedures liberations de 3138, 177 130 S.Ct. L.Ed.2d signed public accountability to ensure —(cid:127) (“One (2010) government can have a requirements like notice-and-commеnt being by that functions without ruled func- regarding parte rules ex communications— tionaries, government and a that benefits accountability he undermines the rationale being without ruled ex- expertise confining executive Power to the Presi perts. adopted was to Our Constitution Kagan, dent. Elena Presidential Ad Cf. themselves, people govern enable the ministration, 114 Harv. L. Rev. through growth their elected leaders. The (2001) (characterizing degree “the to which Branch, of the Executive which now wields public can understand the sources and every power vast and touches almost as- of action” levers bureaucratic as a “funda life, daily pect heightens of the concern precondition accountability mental of may slip that it from the Executive’s con- administration”). Acting with concern for trol, and from that the people.”). thus public accountability especially seems sa Rather, my assertion follows from the na- lient when the President “and his White ture of executive Power. seek to House staff’ exert influence over Executive Branch over the ex- an ostensibly-independent the direction of is, existing (“In ecution and enforcement of law Costle, agency. 657 F.2d at 405-06 Cf. in part, government’s meant to ensure our EPA, case of particular Presidential republican thereby remaining pub- authority is clear since it has never been form— Presidents, licly accountable. Some ‘independent agency,’ considered an but direction, Branch.”). agency’s shaping name of always part of the Executive “might accept practice a novel that violates something explains the Perchance else “ II,” powers Article but ‘the separation attempt House’s conduct here than White depend does not on the of individual of executive ing views to confine the exercise But, PHH at Power to the President. rather than Corp., Presidents....’” 839 F.3d (1952); 96 L.Ed. 1153 United standard the S.Ct. acknowledge the double Co., created between States v. Midwest Oil President’s involvement (1915) and their Chief Exec- People the American 59 L.Ed. 673 utive, (“The for the silent treat- opted the FCC upon Constitution does not confer luxury. such This Court has no ment. or power to enact laws [the President] judges might think that should “[S]ome suspend repeal such as the the elected branches’ de- enacts.”). defer to simply belongs lawmaking power administrative state. But sign of the exclusively Congress, agencies. not to long, long would flout a hands-off attitude City Arlington, See precedent.” PHH line of petitions n.4. the President Con- When Unfortunately, un- F.3d at 35. Corp., 839 however, law, he, gress change nec- Opinion, the American der this Court’s position essarily, need advocate quite gov- never know how the People will existing “faithful” to law. U.S. Const. regulate came to their Internet ernment II, (authorizing § Art. cl. 2 the Presi- pervasively. so access dent to “recommend measures as he such necessary judge expedient”). shall

B. sure, agency rules To be creation of Not A Is “Faithful” Reclassification aspects can muddle these distinct execu Existing Law Execution Of regulatory stat tive Power. “Because most regarding of substance questions multiple goals utes have and are not writ go here the President’s involvement crystal clarity, agency ten with often separation of core of our Constitution’s interpretational leeway has considerable legislative executive and Power.. line, steps over the before may' push attempt executive Power differs the President The nature of possible.” that line as upon whether the President as close to depending law, McGarity, seeking change in ex- Thomas O. Presidential Control executing context, Regulatory Agency Decisionmaking, In the former the 36 isting law. of (1987). “faithfully” to exe- Am. U.L. Rev. Our Consti required President remains, II, 3,§ Art. tution ensures that the line how cute the law. See U.S. Cоnst. (Hamil 5;7 Natelson, The ever. The Federalist No. 73 cl. see also Robert G. Cf. (Clinton 1961) ton), ed., Meaning p. the Rossiter Original Constitution’s of Clause,” separation powers of Vesting (adhering 31 Whitt. L. to “Executive (2009) (discussing legislative pow “the and executive 14 & n.59 Article avoids Rev. in “power-confer- eom[ing] as a ers ... to be blended the same II’s Take Care Clause hands”). “An activist President with con ring” historically text “reminiscent” of “royal agent). rulemaking process act as an trol over the could use instructions” to Constitution, beyond power press agencies “In framework of our his to statu tory persuade that he unable to power President’s to see that the laws are limits was to remove. a President faithfully Congress executed refutes the idea that he Such guilty of unfaithful execution of Youngstown is to be a lawmaker.” Sheet & would be McGarity, 72 the laws.” Presidential Control Sawyer, Tube Co. v. 343 U.S. regulating obligation under the Take with laws the executive branch.” 7. The President’s Kavanaugh, Anchor Care Clause does not extend to laws the See Brett M. Our Presi- for unconstitutional, Counting: Enduring Signifi- it The dent considers nor does Years Constitution, But, prohibit prosecutorial discretion. other- cance the Precise Text of wise, comply 89 Notre Dame L. Rev. "the Executive has to follow and Regulatory Agency Decisionmaking, ty to in changes. seek the law from the A problem” Am. U.L. Rev. at 455. “related legislature, and his constitutional obli- “occurs when of the President’s members gation to faithfully execute the passed law attempt poli- their implement staff own by Congress when interacting with the cy agendas the name of the President.” agency charged with executing the law. See id. Given the outcome-determinative obligation President’s to “faithfully” nature the President’s involvement on existing execute law limits the realm of the reclassification of broadband Internet reasonable constructions provide he can clarity which access—and with Con- charged those enforcing existing law. gress deregulatory policy set forth its example, For during “Quasi War” with question standards the 1996 Act—the France, Congress passed a permit statute upheld how the President his Take Care ting any the seizure of ship U.S. bound for obligation urging Clause the FCC to dependent France or its powers. When reclassify Internet access arises. President Adams sent the statute to the Here, the President did not ask the execution, military for he reinterpreted the congressional policy FCC to enforce “a ... allowing for the seizure of statute — prescribed by Congress;” in a manner in- ship going “to or Fr[e]nch stead, he on to “execute” a called (2 ports.” Barreme, See Little v. 6 U.S. “presidential policy” preference on net Cranch) 170, 178, (1804) (em 2 L.Ed. 243 prescribed by “in a manner added). phasis Court af Youngstown, ‍‌‌​‌​​‌​‌​‌‌‌​‌​​​‌​‌​​‌​​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌‌​​​​‍President.” firmed the Circuit Court’s finding that the 72 S.Ct. 863. The President did not ask ship seizure of a U.S. from French-con reclassify broadband Internet (then Jérémie) trolled Haiti to Danish-con access as a “telecommunications service” trolled Writing St. Thomas was invalid. implement neutrality” through “net Court, Chief Justice Marshall said Rather, public utility regulation. the Presi- did not matter that the President’s con urged reject Congress’s dent FCC to struction was motivated it being “obvi deregulatory aims and its classification of only sailing if vessels ous!] further preferred Internet access to his French could be port high seized on the neutrality.” approach explained “net As very seas that the law would often be above, the classification of Internet access Congress, evaded.” Id. the Marshall Court as “information service” is a core feature said, “prescribed the manner in which [ ] of the 1996 Act. The use of forbearance to execution,” this law shall be carried into lessen, expand rather than common carrier and that “was to exclude a seizure of regulation, prоhibition treating and the on port.” vessel not bound to a French Id. at mobile broadband Internet access as com- Adams, however, gave 177-78. President carriage part mon are all of the 1996 Act’s construction,” 178, a “different id. at one text, deregulatory history, and structure. Congress passed at odds with what in both Nevertheless, to sought the President “general stating the statute’s clause” its change by petitioning this law not Con- purpose specific and the statute’s more gress, influencing but the FCC’s delib- limitations, id. at 177-78. existing erations over how to law. enforce here,8 collapsed Similarly urged The President’s conduct the dis- the President adopt tinction between his constitutional authori- FCC to a construction of Internet military 8. That the is under the President’s is of no moment here. The issue here scope authority independent command and the FCC is an is not the of the President's See, e.g., Congress place go. was the id. “gener- at odds with both classification (Frankfurter, J., 603, con- deregulatory Act’s at 72 S.Ct. 863 of the 1996 al clause[s]” that, years five before specific curring) (explaining more defi- and the statute’s policy seizure, service,” Truman’s steel “Con- computer “interactive President nitions of President, service,” may “Internet access You not gress “information said service,” service,” and ask for report “interconnected Please to us seize. doubt you switched network.” No if think it is needed in a public power “the seizure ”). thought reclassifying broad- Nothing President about our specific situation.’ captured the Internet access better legislative band Constitution’s deliberative of Internet access. on-the-ground realities one-way to facilitate a structure is meant Bárreme, But, Congress “prescribed inas at ratchet in the President’s favor. See id. be in which this law shall (Frankfurter, J., the manner [ ] concur- S.Ct. execution,” President into and the (“The carried legislation does ring) need new of exist- urging limited to the execution or repeal not enact it. Nor does it amend that faith- legal law with constructions ing law.”); The Federalist No. 73 existing Congress what enacted. See fully execute (Clinton (Hamilton) ed., p. 442 Rosseiter famously Jackson id. at 177-78. As Justice 1961) (“It that may perhaps be said it, takes meas- the President put “[w]hen laws includes that power preventing bad expressed incompatible with ures good ones.... But this ob- preventing is at its Congress, power will of his implied jection weight with those will have little Youngstown, ebb.” 343 U.S. lowest properly who can estimate the mischiefs of (Jackson, J., concurring). inconstancy mutability in the every institu- They laws.... will consider President’s intervention not re- did ... in keep things tion calculated to Congress legis- from a “failure of sult they happen state in which to be at same regu- of Internet access late” on the issue likely to any given period as much more do lation, he desired “a different but because harm.”). good than Nor does the Constitu- way respect- of his own” and inconsistent “I’m-frustrated- give tion the President an ing regulation. See id. with-democracy” to Bicameral- (Jackson, J., exception concurring). The fact that Presentment; him has, now, allowing peti- until decided not to ism and Congress up FCC, Congress, than for a tion the rather legislation its 1996 Act with amena- revise existing law. NLRB v. Noel change Internet to President Obama’s view of ble , — —, Congress Canning has regulation does not mean (2014) (“It 2567, 189 go L.Ed.2d 538 should to act. “acted” with re- “failed” political opposition ... saying ac- without spect to the classification qualify as an the Senate would cess service 1996—if President Obama needed, allowing circumstance” the Presi- thought a reclassification was then unusual Johnson, (i.e., judicial Mississippi v. direction. See enforce the law the extent to which the act). (4 Wall.) can "direct” the FCC to Rath- President 18 L.Ed. 437 er, the nature of the the issue here is dispute that the Court cannot I do not seeking when the Presidеnt exercises directing the President's "exer- issue an order existing change law. En- of judgment” enforcement See id. cise of in law enforcement. authority forcement cannot be conflated determination, What is within this Court’s ability separate and distinct to the President’s however, at issue faith- is whether the Order existing petition changes in law itself. for not, existing fully executes law. It does and it Nevertheless, above, explained that is what as forth does not because of the construction set attempted. It is no answer to the President by the President. subject say the President's action is not to limita- disregard they constitutional content transmit dent consumers. The tions). every rule will affect Internet service pro- vider, every Internet provider, content and defects, delays all its and incon “With every Internet consumer. The economic veniences, men have discovered no tech political and significance of the rule is vast. nique long preserving government for free except that the Executive be under the neutrality The net rule is unlawful and law, that the law parlia and be made however, vacated, must be for two alterna- mentary duty deliberations.... is the [I]t independent tive and reasons. last, first, give of the Court to be First, Congress clearly did not author Youngstown, up.” [these institutions] 343 ize the to issue neutrality the net (Jackson, J., U.S. at 72 S.Ct. 863 Congress rule. has debated neutrality net concurring). This issue deserved much many years, Congress for but has never scrutiny than given

more the silence neutrality legislation enacted net or clear by this Court. ly impose authorized the FCC to common- obligations carrier on Internet service y. providers. The lack of clear congressional signs government shows of a This Order authorization In a im matters. series of beyond of having grown the consent portant cases over the years, last 25 Bi- governed: collapsing respect Supreme required Court has clear con Presentment; cameralism and the adminis- gressional major authorization for agency shoehorning major questions trative state Court, rules of this kind. The speaking long-extant statutory provisions into with- Scalia, through recently Justice summa authorization; a congressional prefer- out major rized the in way: rules doctrine this rent-seeking liberty. ence for over This expect Congress speak clearly “We if it opportunity Court had an to see the wis- assign agency wishes to to an decisions of Controlling dom of the “Man Trade” stat- ” political significance.’ vast ‘economic and Avenue, ue on but we are no Constitution —EPA, Utility Regulatory Group Air v. longer path. Hopeful- on the Constitution’s —, 2427, 2444, U.S. ly, a clearer there is view of the road back (2014) (quoting L.Ed.2d 372 FDA v. limited, government to a enumerated Corp., Brown Tobacco & Williamson from power Capi- One First Street our 146 L.Ed.2d City. In that I hope, respectfully tal dis- (2000)). major rules doctrine rehearing sent from the Court’s denial helps separation preserve powers en banc. operates expansive as a vital check on aggressive of executive au assertions KAVANAUGH, Judge, Circuit thority. dissenting rehearing from the denial of en

banc: Here, passed because never neutrality legislation, net the FCC relied neutrality

The FCC’s 2015 net rule is Act, on the 1934 Communications consequential regulations one of the most as its source of amended by any indepen- ever issued executive or But that Act for the net rule. history dent United supply congressional clear au- does not States. The rule transforms the Internet impose thorization for the FCC to com- by imposing obligations on common-carrier thereby regulation Internet mon-carrier on Internet service providers service Therefore, prohibiting providers. service under major exercising precedents applying editorial control over the Court’s doctrine, job apply Suрreme precedent is to Court neutrality net rule is rules the as it stands. unlawful. alternative, net and in the the Second indepen- two alternative and For those the First Amend- neutrality rule violates reasons, neutrality the net dent the Under

ment to the U.S. Constitution. and must be vacat- regulation is unlawful Supreme Court’s landmark decisions disagree panel with the respectfully ed. I FCC, Broadcasting System, Inc. v. Turner and, given the majority’s contrary decision 129 L.Ed.2d 512 U.S. issue, the re- exceptional importance of (1994), Sys- Broadcasting Turner from the denial of re- spectfully dissent tem, FCC, Inc. v. 520 U.S. hearing en banc.1 (1997), the First 137 L.Ed.2d re- Amendment bars the Government from

stricting the editorial discretion of I showing providers, absent service major is a neutrality The FCC’s net rule market provider possesses Internet service rule, clearly Congress has not author- but market. geographic in a relevant power to issue the rule. For that ized the FCC Here, however, the FCC has not even alone, the unlawful. reason rule is power showing. a market tried to make Therefore, Supreme under the Court’s Amendment,

precedents applying the First A neutrality rule violates the First the net The Framers of the Constitution viewed Amendment. great separation powers as the safe short, briefs and com- although In guard liberty in the new National Gov mentary neutrality the net issue are about liberty, protect ernment. To the Constitu voluminous, legal analysis straight- power among tion divides the three major Supreme If the Court’s forward: of the National Government. The branches says, then the rules doctrine means what Congress legis vests with the Constitution neutrality net rule is unlawful because I, § art. 1. The power. lative U.S. Const. clearly has not authorized the the President with the Constitution vests major rule. And if the FCC to issue this including responsibili power, executive Broadcasting Turner de- Supreme Courtfs ty to “take Care that the Laws be faithful they say, mean then the net cisions what 1; II, 1,§ § ly Id. art. cl. id. 3. executed.” rule neutrality rule is unlawful because the Judiciary The Constitution vests the with infringes on the Internet impermissibly judicial power, including power providers’ service editorial discretion. To appropriate cases to determine whether obvious, state the consistently the Executive has acted the ma- always could refíne or reconsider See id. art. the Constitution statutes. jor in the rules doctrine or its decisions Madison, III, 1, 2; Marbury §§ v. Broadcasting But lower Turner cases. as a (1 Cranch) 137, court, L.Ed. 60 possess power. we do not Our Judge and until the agree I with much of Williams’ for en banc review now. Unless also so, however, panel panel opinion dissent and with much of Part III.A does will Judge III.B dissent from de- panel Part Brown's the law of the Circuit. If the remain rehearing nial of en banc. opinion opinion were to withdraw its or if moot, gets en vacated as then the need for rehearing the denial of The concurrence in go away review would as well. But not suggests may banc en banc that the FCC withdraw then, rule, my judgment. mitigating need until the net

419 separation the of Under Constitution’s rule is unlawful. major This rules doc- laws, powers, Congress makes the and the (usually trine major called the questions doctrine) implements- Executive and enforces the grounded in two overlapping The Executive Branch pos- (i) laws. does not and reinforcing presumptions: sepa- a general, free-standing authority sess a to ration of powers-based presumption binding legal issue rules. The Executive against delegation the major of lawmak- only may pursuant issue rules to and con- ing authority from Congress to Ex- the of grant authority sistent with from Con- Branch, ecutive see Industrial Union (or gress grant authority directly of from Department, v. AFL-CIO American Pe- Constitution). Youngstown Sheet & Institute, 607, 645-46, troleum 448 579, 585, Sawyer, Tube Co. v. 343 U.S. (1980) 65 L.Ed.2d 1010 (1952). S.Ct. 96 L.Ed. 1153 Stevens, J.), (ii) (opinion of and a pre- sumption that Congress intends to make Judiciary When the exercises its Article major policy itself, decisions leave authоrity III to determine whether an those decisions agencies. agency’s govern- rule is consistent with a statute, ing competing two canons of statu- short, In while the Chevron doctrine al- tory interpretation play. come into agency rely lows an statutory on ambi- guity rules, to issue First, rules, ordinary major ordinary agency the Su- prevents rules doctrine agency preme applies Court what is known as relying statutory on ambiguity to agency Chevron deference to authoritative issue major rules. of If interpretations statutes. the statute is clear, agency must follow the statute. Breyer Justice appears to have been the ambiguous, But if the statute is agency dichotomy first to describe a between ordi has to adopt preferred discretion its own nary major rules and to articulate the interpretation, long so as that interpreta- major rules doctrine as a distinct principle Chevron, tion is at least reasonable. See statutory interpretation. In an article U.S.A., Inc. v. Natural Resources exp Defense years ago, written more than 30 he Council, Inc., 837, 842-45, principle way: this When de lained (1984). 81 L.Ed.2d 694 termining “the extent to Congress which theory of Chevron is that a ambi- intended that courts should defer to the guity gap Congress’s implicit or reflects agency’s proper view of the interpreta delegation authority agency for the to tion,” courts should take into account the policy make and issue rules within the reality legislative Congress may grant range reasonable of the statutory ambigui- the Executive Branch the to re ty gap. or matters,” solve various “interstitial but Second, in a narrow class of in- Congress likely cases itself is “more to have volving major agency answered, great upon, major ques rules of focused political significance, economic and Stephen Breyer, tions.” Judicial Review of Questions Supreme Court has Policy, articulated coun- Law and 38 Admin. tervailing canon that constrains Ex- Citing L. Rev. Justice article, helps ecutive and Breyer’s maintain the Con- that, separation powers. explained “extraordinary stitution’s For an later rule, cases,” agency major Congress to issue a could not have “intended clearly agency must delegate authorize the to do to a decision of such economic only so. If a ambiguously sup- political significance statute to an so rule, plies authority major for the FDA cryptic a fashion.” v. Brown & Wil- spe- industry generally, cigarettes Corp., 529 U.S. Tobacco liamson cifically. The Court thus invalidated 146 L.Ed.2d rule, stating that it was “confident the (2000). not have intended Congress that could articulated principle keeping In economic delegate to a decision of such has Breyer, Court by Justice significance agency to an political to agency attempts rejected repeatedly 160, Id. at 120 cryptic in so a fashion.” clear action without major regulatory take S.Ct. 1291. Consider the authorization. congressional (cid:127) 243, 126 Oregon, v. 546 U.S. Gonzales following examples: (2006). 904, The 163 L.Ed.2d 748 S.Ct. (cid:127) Corp. v. Telecommunications MCI gave Act Controlled Substances Co., Telegraph Telephone & American Attorney authority de-reg- to General 129 114 S.Ct. preventing them physicians, ister thus (1994). The 182 Communica L.Ed.2d writing prescriptions for certain au gave of 1934 tions Act Attorney if General con drugs, require “modify” rate-filing thority to in the de-registration cluded that was that issued a rule The FCC ments. Attorney The Gener “public interest.” telephone certain completely exempted declaring rule interpretive al issued an rate-filing require companies from prescribe not physicians could struck down ments. The Court for assisted sui controlled substances rule, authority holding that the FCC’s major step It have been a cides. would statutory requirements did modify to Attorney proscribe to for the Generаl agency to eliminate permit way. physician-assisted suicide this It would have requirements. those statutory au Yet there was no clear major step for the FCC been a Attorney to do thority for the General Yet requirements. those eliminate rejected the so. The Court therefore statutory authority there was no clear rule, that it “would be anoma stating ex for the FCC to do so. painstak so Congress lous for to have “highly unlikely plained that was Attorney ingly described the General’s would leave the deter Congress authority deregister single limited industry of whether an will mination single drug, physician or schedule substantially, rate- entirely, or even be him, given just by implica have but to at regulated agency discretion.” Id. tion, an authority to declare entire 231, 114 2223. S.Ct. the course of activity class of outside (cid:127) professional practice.” & Tobacco Id. FDA v. Brown Williamson (internal quotation marks 120 S.Ct. S.Ct.

Corp., 529 U.S. (2000). omitted). Food, “The idea 146 L.Ed.2d Attorney such gave FDA General broad Drug, gave and Cosmetic Act authority through an im and unusual regu- general broad delegation registra in the CSA’s plicit The FDA “drugs” late and “devices.” sustainable.” Id. provision tion is not general this authori- attempted to use 267, 126 industry, the tobacco ty regulate (cid:127) EPA, cigarettes. Regulating ciga- Group v. including Utility Regulatory Air — major —, have been a eco- rettes would parts action. Yet there L.Ed.2d 372 Various political nomic and gave Air Act the Environ statutory authorization the Clean was no clear authority to Agency mental Protection regulate for the FDA to the tobacco regulate “any pollutant.” clearly air It was not if it assign wishes to to an agency greenhouse gases clear whether were decisions of vast ‘economic and ” Id. at 2444 political significance.’ for all Air Act pollutants air Clean Williamson, Brown & (quoting programs. pro- The EPA nonetheless 1291) (cita U.S. at mulgated subjecting a rule millions of omitted).2 tion previously unregulated emitters greenhouse gases per- to burdensome The lesson from those cases is apparent. mitting regulations under the Clean If expansive wants to exercise Air Significant Act’s Prevention of De- regulatory authority over major some so- permitting pro- terioration and Title V cial or economic activity regulating ciga- — grams. major It would have been a rettes, banning physician-assisted suicide, for EPA step regulate green- to the eliminating rate-filing telecommunications gas many large requirements, regulating house emissions of so greenhouse emitters, gas ambiguous example and. small facilities. But there was no —an grant of statutory authority is not enough. statutory clear authorization for the n EPA to dearly Congress agency must authorize an result, a do so. As the Su- major to take such a regulatory action.3 preme part Court vacated the relevant rule, an stating: agency of the “When Consistent with the Court case long-extant claims to discover in a law, leading statutory interpre- scholars on power regu- statute an unheralded to tation recognized significance have the of significant portion late ‘a of the Ameri- major the rules doctrine. Professor Esk- economy,’ typically greet can we its ridge explained way: has the doctrine this -with a measure of skep- “Supreme announcement has Court carved out a expect Congress speak potentially important exception delega- ticism. We completeness, 2. For two other cases warrant the Federal Government. Id. at That 2488-89. First, EPA, prototypi- case is somewhat different from the mention. in Massachusetts v. 549 major agency cal rules cases because the 127 L.Ed.2d (2007), particular seeking regu- that rule was not the Court concluded that the Clean (as de-regulate opposed late or to tax or subsi- regulation provision Air Act’s for the of new dize) Rаther, major private activity. some the clearly reg- motor vehicles authorized EPA to scope government case concerned the sub- of greenhouse gas ulate the emissions of those vehicles, sidies under the health care statute. The case finding green- once EPA made a prop- therefore seems to for the distinct stand gases may endanger public house the health. may apply deference 528-29, osition Chevron not See id. at 127 S.Ct. 1438. So even agency interprets major govern- a when an though presumably a such rule would be a appropriations provision ment benefits or of a rule, it, major clearly the statute authorized statute. UARG, contrast, according by to the Court. In the Court concluded that the Clean Air Act's employed major 3. This Court has also Significant Prevention of Deterioration and See, e.g., doctrine. District Columbia rules of permitting programs clearly VTitle did not Labor, Department v. 819 F.3d of regulate green- authorize EPA to emitters of (D.C. 2016) (rejecting Department Cir. of gases programs. house under those Act, interpretation of the Davis-Bacon Labor’s Second, Burwell, -, King v. - U.S. works, regulates public apply which (2015), 192 L.Ed.2d 483 funded, owned, privately construction applied major IRS, of the rules doc form operated buildings); Loving v. 742 F.3d (D.C. 2014) trine and stated that Chevron deference did (rejecting Cir. apply major question of whether interpretation of a Internal Revenue Service's govern regulation Affordable Care Act authorized tax statute to authorize new prepar- ment subsidies to individuals who obtained of thousands of tax-return hundreds ers). exchanges by health insurance on established congressional put if function. As one official

tion, canon. Even major questions major agency general “Major policy questions, an it to them: Congress delegated has judges major ques- adjudicatory power, questions, political economic rulemaking or delegate tions, does not all the preemption questions are presume major or amend so- them its to settle same.. Drafters don’t intend to leave (internal policy economic decisions.” Wil- quotation cial and unresolved.” Id. at 1004 Interpreting Jr, Eskridge omitted).4 Law: A liam N. marks and alterations Read Statutes Primer on How to short, major In consti- rules doctrine “key reason” Constitution important principle tutes doctrine, Eskridge Professor has for the eases. As a lower interpretation strong presumption “is the explained, court, major follow the rules doc- we must major policies unless and continuity for by trine as it has been articulated Congress has deliberated about and until Supreme Court. major poli- in those change enacted a major policy change cies .... Because B democratically should be made the most major In order for the FCC to issue I, process accountable Section 7 —Article rule, authori- Congress provide must clear continuity kind of is con- legislation—this zation. therefore must address two We with democratic values.” Id. at 289. sistent (1) questions in this case: Is the net neu- study Congress’s of In their landmark (2) so, major If trality rule a rule? has statutory drafting practices, Professors Congress clearly authorized the FCC to and Bressman likewise stated Gluck neutrality issue the net rule? major questions depar doctrine a “the simple of presumption ture from Chevron’s 1 delegation. particular, In that doctrine neutrality major a The FCC’s net rule is supports presumption nondelegation a of Supreme the purposes rule for of Court’s statutory ambiguity face of over the Indeed, major I believe that rules doctrine. major questions questions of ma policy indisputable. proposition is jor significance.” or economic political Bressman, major R. Lisa Schultz Court has described Abbe Gluck & politi- In rules as those of “vast ‘еconomicand Statutory Interpretation the from ” UARG, 2444 Study significance.’ cal 134 S.Ct. at Empirical Congres side—An Williamson, Brown 529 U.S. at Drafting, Delegation, (quoting sional and the Can & 1291). I, L. 120 has not ons: Part 65 Stan. Rev. 1003 S.Ct. (2013). study bright-line articulated a test that distin- empirical Their concluded major ordinary major guishes that the rules doctrine reflects con rules from rules. matter, however, general in- the Court’s gressional intent and accords with the As reality that a number of factors are legislators the-arena of how and cases indicate relevant, money amount of congressional approach legislative including: staff applied preme believe that Court has articulated and 4. Some commentators do not See, major high-profile there should be a rules doctrine. major rules doctrine in series of Canons, e.g., Heinzerling, court, Lisa The Power important and cases. As a lower we 2017); Mary (forthcoming Wm. & L. Rev. repeated invoca- cannot dismiss the Court’s Leske, Questions Major Kevin O. About the meaningless tions the doctrine as casual or Questions” Doctrine, “Major J. Envtl. 5 Mich. We airbrush the cases out of asides. cannot court, & Admin. L. 479 But as a lower picture. by precedent. we are constrained The Su- regulated parties, involved for and affected consumers and fully from responding to their impact economy, preferences. the overall on customers’ The rule affected, and therefore wrests control of the people degree number of people private Internet ser- congressional public attention to the gives vice UARG, control to the issue. See 134 S.Ct. at 2443-44 Government. The rule will affect every (regulation impose compli would massive- provider, Internet service every Internet previously unreg ance costs on millions of provider, content and every Internet con- emitters); Oregon, ulated v. Gonzales sumer. The financial impact of the rule—in 267, 126 (physician-assist U.S. at S.Ct. 904 portion economy terms of the affect- important subject ed suicide is an issue ed, impact as well as the on investment in profound “earnest and debate across the infrastructure, content, and business—is Williamson, country”); Brown & staggering. surprisingly, Not consumer in- 143-61, 126-27, 133, groups terest and industry groups alike (FDA’s give asserted would have extraordinary mobilized resources to expansive power over tobacco industry, policy influence the outcome of the discus- previously unregulated which was under sions. statute); MCI, the relevant 512 U.S. at Moreover, public and the have (rate-filing S.Ct. 2223 re paid close attention to the issue. Congress “utterly quirements are central” and of studying has been and debating net neu importance” “enormous trality regulation years. It has consid scheme). The Court’s concern about an (but passed) ered never a variety of bills agency’s seemingly major issuance of relating to net imposi and the moreover, heightened, rule is when an tion of regulations common-carrier on In long-extant relies on a statute to See, ternet service providers. e.g., H.R. support agency’s the bold new assertion of 5252, (2006); 5273, Cong. 109th H.R. 109th UARG, regulatory authority. (2006); 5417, Cong. H.R. Cong. 109th at 2444. (2006); 2360, (2006); Cong. S. 109th S. sure, determining To be whether a rule 2686, (2006); 2917, Cong. 109th S. 109th major constitutes a rule sometimes a has (2006); 215, (2007); Cong. Cong. S. 110th you quality. bit of a “know when see it” (2008); 5994, Cong. H.R. 110th H.R. inevitably So there will be close cases and (2008); Cong. Cong. 110th H.R. 111th margins at the debates about whether a (2009); (2011); Cong. S. 112th S. qualifies major. rule as But under (2012); 2666, 114th 112th Cong. Cong. H.R. conceivable test for what makes a rule public The has also intense focused major, neutrality qualifies the net rule as a ly neutrality on the net debate. For exam major rule. FCC, ple, when the issue was before the neutrality major a net rule is rule some 4 agency the received million com imposes regula- because it common-carrier rule, proposed apparently ments on the (A providers. far) tion on Internet service com- largest (by the number of comments generally carry mon carrier must all traffic that the FCC has ever received about a equal on an basis without unreasonable Indeed, proposed rule. even President price carriage.) discrimination as to In weighed in on publicly Obama the net neu doing, neutrality issue, so the net rule fundamen- trality presidential an unusual action tally by prohibit- transforms the Internet independent agency when an is consider ing providers ing proposed Internet service from choos- rule. on See Statement Daily Comp. ing they Neutrality, the content to transmit to want Internet (Recall 2014). that a (Nov. of information services. Presi- tion Doc. Pres. carry must all generally the carrier only underscores common intervention dent’s an basis without unreason- equal of the net traffic on significance enormous and car- price discrimination as to able issue. originally designed riage.) The statute was addition, the in other cases where In as as telephone service regulate major has held Supreme Court common carriers. relying is applied, FCC rules doctrine namely, long-extant on a here statute — time of the 1996 amendments By the amended Act of Communications Act, being. into the Internet had come UARG, 1996. In amendments reflected devel- The 1996 following: agency “When wrote things, other the amend- opment. Among statute long-extant in a claims to discover philosophy of general articulated a ments regulate signifi- ‘a power to an unheralded Internet. “It is regulation limited of the economy,’we of the American portion cant States,” Congress of the United policy its announcement with typically greet stated, the vibrant and com- preserve “to expect Con- skepticism. We measure exists presently free market that petitive assign clearly if it wishes gress speak and other interactive com- for the Internet of vast ‘economic to an decisions services, unfettered Federal or puter ” significance.’ 134 S.Ct. political 230(b). § regulation.” 47 U.S.C. State Williamson, 529 (quoting Brown & express statutory keeping In with the 1291) (citation the Inter- light regulation philosophy omitted). might as The Court in UARG net, regulated until 2015 the FCC net speaking about have been well systems cable as an provided service over language That neutrality rule. UARG service, regulatory lighter information point here. directly on 1996) (as amended in model. The 1934 Act major rule neutrality rule is The net regulation of the Inter- permits light such of' the ma- any plausible conception under clearly Act do is net. does What rightly Judge As Brown jor rules doctrine. a telecommunica- treat Internet service as states, fail the “any other conclusion would thereby authorize the tions service and at 402. test.” Brown Dissent straight-face provid- regulate Internet service most, At the Act ers as common carriers. ambiguous about whether Internet ser- is a ma- neutrality the net rule is Because service or a telecom- vice is an information rule, is whether Con- jor question the next service. munications dearly authorized the FCC to issue gress com- neutrality impose rule and the net Congress passed has not Since on Internet ser- regulations mon-carrier clearly classifying Internet service statute The answer is no. providers. vice or other- as a telecommunications service impose authority the FCC to giving wise Congress enacted the Communications common-carrier Internet regulations on it in 1996. The Act in 1934 and amended has not providers. That inaction regulatory service up sets different statute the result of inattention. On been for “telecommunications services” schemes above, contrary, Congress has “information for as noted simplify services.” To and neu- studying debating the net authorizes been purposes, the statute present Congress has trality years. for And of tele- issue heavy regulation common-carrier relating to variety of bills light regula- considered services but communications neutrality Services, com- imposition net Internet regulations mon-carrier on Internet ser- X, 162 L.Ed.2d 820 In Brand providers. vice But none of those bills has the FCC had classified Internet service passed. over cable lines as an information service and, classification, consistent with that im-

In notwithstanding the lack of posed only light regulation on Internet authorization, congressional clear providers. service petitioners Various sued unilaterally plow FCC decided to forward try to to classify force the FCC to Internet neutrality and issue its net rule. The rule service as a telecommunications service classified Internet as a service telecom- impose and to regulation common-carrier imposed munications service and onerous on providers. Internet service The Su- regulations common-carrier on Internet preme Court stated that the statute was so, providers. By doing service the FCC’s ambiguous about whether Internet service neutrality upended 2015 net rule was an information service or a telecom- agency’s light-touch traditional regulatory munications service. applied The Court approach to the Internet. Chevron deference upheld the FCC’s problem the FCC is Con- classify decision to Internet service gress clearly has not authorized the FCC information service subject and to classify Internet service as a telecom- providers only light service regulation. impose munications service and common- ‍‌‌​‌​​‌​‌​‌‌‌​‌​​​‌​‌​​‌​​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌‌​​​​‍obligations Here, that, carrier on Internet pro- service argues under Indeed, X, viders. not even the FCC claims agency authority Brand has to clas- clearly that Internet service is a telecom- sify Internet service as a telecommunica- under munications service the statute. On tions service because ambig- the statute is contrary, the FCC concedes that “the badly uous. The FCC is mistaken. Brand clearly Act did not re- Communications finding statutory ambiguity Xs cannot question solve the of how broadband be the source of the FCC’s Opposition should be classified.” FCC Br. classify Internet service as a telecommuni- Therefore, admission; the FCC’s own Rather, major cations service. under the Congress clearly has not authorized the doctrine, finding rules Brand Xs of statu- subject FCC to Internet service tory ambiguity is a bar to the au- range of burdensome common-carri- thority classify Internet service as a er regulations associated telecommu- telecommunications service. nications services. Importantly, the Brand X Court did not doctrine, major Under the rules have to—and did not—consider whether game

the end of the for the net classifying Internet service as a telecom- clearly rule: must authorize an imposing munications service and common- major issue rule. And Con- regulation carrier on the Internet would be here, gress has not done so as even the major rules consistent with doctrine. FCC admits. words, In other Brand X nowhere ad- conclusion, question presented To avoid that dressed the this the FCC relies namely, has exclusively Supreme Congress almost on the case: whether clear- Court’s ly regulation 2005 decision in National Cable & Tele authorized common-carrier of Therefore, X providers.5 communications Association v. Brand Internet service we might major regulation 5. One wonder whether it was a services” on Internet “information no; indeed, step impose light-touch providers. for the FCC to even service The answer is may not statutory ant question the first that must consider rules, major X’s authority. that is where Brand exceed that For And instance. tor- statutory ambiguity actually moreover, con- finding agency of must have clear аrgument. current the FCC’s The neutrali- pedoes gressional authorization. net finding ambiguity of defini- major Congress Brand Xs But has ty rule is a rule. clearly not that has tion means to issue clearly not authorized the FCC issue the net neu- authorized the FCC to ma- rule. Court’s Under that the net trality rule. And that means doctrine, jor neutrality the net rule is rules major neutrality rule is unlawful under unlawful and must vacated.7 therefore be rules doctrine.6

II adopted neutrality the net rule The FCC neutrality The net rule is unlawful for an the rule to be agency because the believed independent alternative and reason. Congress would policy wise and because Amendment, violates the First as that rule neutrality might rule pass not it. The net by the interpreted Amendment has been that the assuming But even policy. be wise a Supreme Court. Absent demonstration congres policy, net rule is wise provider possesses that an Internet service license the Execu sional inaction does not geographic in a relevant power market matters into its own tive Branch to take market —a demonstration from it. See Hamdan v. Rums hands. Far imposing concedes did not make here — 2749, 165 feld, 548 U.S. on Internet regulations common-carrier (2006) J., (Breyer, concurring) L.Ed.2d providers violates the First service (gravely policy problem serious is nonethe Amendment. not a “blank check” for the Executive less problem); Youngs

Branch to address the A Co., town Sheet & Tube (Jackson, J., question threshold is whether the con 96 L.Ed. 1153 applies First Amendment to Internet ser- system separation our curring). Under they only providers vice when exercise editorial powers, agency may pursu- an act questions provider questions. the answer to both apparently no Internet service raised But that, language light- in the in Brand X. The FCC’s no. I see no such claim words, "clearly regulation concurrence’s classifies ISPs touch did not entail common-carri- providers” "clearly regulation major telecommunications er and was not some new as classify regulatory step political agency ISPs as tele- of vast economic and authorizes significance. providers.” Id. Nor did The rule at issue in Brand X communications X, it, rule, major say two ordinary not Brand as I read either of those therefore was result, things. applied, rule. As a the Chevron doctrine major not the rules doctrine. major only meant 7. If the rules doctrine go rehearing apply, did so far as in the denial of Chevron did not but not The concurrence require congressional authorization what it describes as “two clear en banc articulates rule, simply ambiguity.” major we then deter- species Concurrence for a would distinct (i) distinguishes reading without mine the better of this statute at 386. The concurrence clearly thumb on the scale in direction. It is whether the statute itself classifies In- either deeply providers necessary hypo- delve into that ternet as telecommunica- service here, (ii) reading inquiry providers whether the thetical but the better tions statute clearly classify is that Internet service is an infor- authorizes the Inter- this statute service, Judge Brown has ex- net telecommunications mation as service agree plained. at providers. are two distinct See Brown Dissent 395-96. I that those

427 discretion and choose what content to car- The Supreme Court’s landmark deci carry. sions in ry yes. and not The answer is Turner Broadcasting System, Inc. FCC, 622, 2445, v. 114 U.S. Article I of the Constitution affords (1994), L.Ed.2d 497 and Turner Broad power regulate substantial in FCC, casting System, 180, Inc. v. terstate commerce. But the Eirst Amend (1997) 137 L.Ed.2d 369 ment that the demands Government em (Turner II), Broadcasting established that ploy a more “laissez-faire regime” for the those foundational First Amendment prin press and other editors in speakers and ciples apply speakers to editors and in the the communications marketplace. Colum modern marketplace communications in Broаdcasting System, bia Inc. v. Demo way much the same the principles Committee, cratic National U.S. apply newspapers, magazines, pam (1973) 36 L.Ed.2d 772 phleteers, publishers, bookstores, and J., in (Douglas, concurring judgment). traditionally protected newsstands by the First Amendment. Ratified the First Amendment provides “Congress shall make no law The Turner Broadcasting cases ad- ... abridging speech, the freedom of or of “must-carry” regulation dressed of cable Const, U.S. amend. I. The press.” operators. The relevant required statute protects First Amendment an independent operators carry cable certain local and an independent media and communications public television stations. Proponents of marketplace against takeover efforts must-carry regulation argued that Legislative and Executive Branches. First posed Amendment little barrier to operates The First Amendment as a vital must-carry regulation opera- because cable guarantee of democratic self-government. merely operated tors the pipes that trans- third-party mitted content and did not ex- Founding, At the time of the the First ercise the kind of editorial discretion that protected (among Amendment other traditionally protected by was the First things) many the editorial discretion of the Amendment. publishers, newspapers, pamphleteers and Court, produced supplied Supreme who and written com- speaking though Kennedy munications to the citizens of the United Justice in both Turner Broad cases, rejected States. For casting Federal Govern- that threshold ar example, could not tell newspapers they gument ment out of hand. The Court held that publish commentary engage had to letters or operators “cable and transmit citizens, speech, they all or from citizens who had differ- are protec entitled to the viewpoints. ent speech press provisions Federal Government tion of the compel not publishers accept could book the First Amendment.” Turner Broadcast 636, 114 all promote equal ing, books on terms or to at U.S. S.Ct. 2445. As the publish books from authors recognized, operators with different Court cable deliver perspectives. Benjamin As Franklin once Although television content to subscribers. remarked, newspaper his not a stage- operators may always gener “was the cable coach, themselves, everyone.” they with seats for Columbia ate that content decide Broadcasting System, decision, 93 what content to transmit. That J., stated, (Douglas, concurring judg- S.Ct. 2080 constitutes an ment) (quoting Frank receiving act of editorial discretion First Mott, Luther Ameri- 1690-1960, can Journalism: A In protection. Amendment the Court’s History, (3d 1962)). “Through ‘original programming ed. words: 428 providers and over erators. But Internet service exercising editorial discretion

by perform the same kinds of programs operators to include cable stations or which programmers op- respective functions in their networks. Just cable repertoire,’ its messages pro- on Internet service operators, to communicate like cable erators ‘seek in a wide Inter- variety topics deliver content to consumers. a wide viders ” (alteration may necessarily omit- not variety providers of formats.’ Id. net service ted) Angeles own, v. much content of their but (quoting generate Los Preferred 488, 494, Communications, Inc., may they 476 U.S. what content will they decide (1986)); transmit, just operators L.Ed.2d 480 see as cable decide they Deciding Educational Television what content will transmit. also Arkansas 666, 674, Forbes, 523 U.S. ESPN and v. whether and how transmit Commission (1998) L.Ed.2d transmit deciding whether and how to (“Although programming meaningfully decisions often are not different ESPN.com compilation speech purposes. of the involve the for First Amendment the decisions nonetheless parties, third Indeed, some of the same entities acts.”). communicative constitute colloqui- television provide cable service— on that ultimate conclusion Court’s ally companies provide known as cable — not point First Amendment was threshold very Internet access over the same wires. imag- One could have obvious beforehand. If receive First Amendment those entities saying operators that cable ined the Court they transmit television protection when pipes merely operate transmission networks, they stations and likewise re- One could have are not traditional editors. protection ceive First Amendment when comparing oper- cable imagined the Court It they transmit Internet content. would electricity providers, trucking ators to entirely illogical be to conclude otherwise. companies, and railroads —all entities sub- short, providers enjoy In service Internet regulation. But ject to traditional economic protection First Amendment their analytical path by not the charted was rights speak and exercise editorial dis- Instead, Broadcasting the Turner Court. cretion, just operators as cable do. analogized operators the cable primary argu- The FCC advances two and book- publishers, pamphleteers, distinguish Turner ments its effort traditionally protected store owners that there Broadcasting and demonstrate As Turner Broadcast- First Amendment. issue here. is no real First Amendment concluded, the First Amendment’s ba- ing vary “do a new and principles sic when not (and First, argues panel the FCC ap- different medium communication Broadcasting that Turner does agreed) there of course can be pears” although — many case because Inter- apply this in how the ultimate First some differences actually providers net service do not exer- analysis depending out plays Amendment to favor some con- cise editorial discretion (and in) competition on the nature of Many tent others. Internet service over communications market. Brown particular providers simply allow access to all Inter- Association, v. Entertainment Merchants providers equal content on an basis. net reason, contends that it For (2011) (internal quotation L.Ed.2d 708 may prevent Internet service omitted). mark exercising their editorial discretion or Here, course, favor content or speech rights we deal with some op- not cable television disfavor other content. providers, service argument mystifying. I that The net find content. But even under the FCC’s theory rule, it” description “use or lose of First of an Internet service rights finds no in the support provider Amendment that carry chooses to most or all precedent. or The FCC’s the- content Constitution still is not allowed to some favor circular, “They ory saying: is essence content over other content when it comes no Amendment rights price, speed, have First because to and availability. That half- they regularly exercising have not regulatory approach just been baked is as for- any rights First Amendment and therefore eign to the First Amendment. If a book- (or Amazon) they rights.” have no First Amendment It store decides to carry all some, books, may many, may be true that or even the Government then force (or Amazon) providers most Internet service have cho- bookstore pro- to feature and not to exercise much editorial discre- mote all sen books in the same If manner? tion, and instead have decided to allow newsstand newspapers, may carries all all Internet most or content to be trans- Government force the newsstand to dis- equal “carry play mitted on an basis. But that all newspapers way? May in the same all comers” decision itself is an exercise of the Government force the nеwsstand to Moreover, fact price equally? editorial discretion. that them all Of course not. the Internet service have not providers theory There is no such of the First Here, aggressively exercising been their editorial Amendment. either Internet service they providers discretion does not mean that have no have a right to exercise editorial discretion, right to exercise their editorial they they discretion. or do not. If have a akin arguing people right discretion, That would be to that to exercise editorial right they lose the to vote if sit out few choice of whether and how to exercise that right pro- them, elections. Or citizens lose the to editorial up up discretion is to if they protested test have not before. Or a the Government. right display bookstore loses the its Think about what the saying: FCC is favored books if it has not done so recent- rule, you supposedly Under the can exer- ly. rights That is not how constitutional your cise editorial discretion to refuse to theory

work. The FCC’s “use it or lose it” carry you some Internet content. But if wholly foreign to the First Amendment. carry choose to all most or Internet con- Relatedly, that, tent, you your the FCC claims under cannot exercise editorial rule, neutrality the net an Internet service discretion to content over other favor some provider may supposedly opt out of the content. First Amendment case or What carry choosing only principle supports theory? rule some Inter- that Crickets.8 ¶ (2015) rehearing (impos 8. The concurrence in the denial FCC Rcd. of 5682 187 ing neutrality requirements various net on an suggest en banc seems to that the net neutral- provider "provides Internet. service ity voluntary. According rule is to the concur- capability” substantially "all all” access rence, providers may comply Internet service Internet) (italics omitted). content on the It neutrality they with the net rule if want to strange would be indeed if all of the contro comply, comply they but can choose not to if versy were over a "rule” that is in fact entire comply. concurring do not want to To the ly voluntary merely proscribes false ad judges, neutrality merely you net means "if event, vertising. any In I tend to doubt that it, say do it.” Concurrence at 392. If that providers simply say service can now Internet true, description really neutrality were the net they comply any will choose not to simple prohibition against rule would be a aspects of the net rule be done advertising. appear false But that does not with it. But if that is what the concurrence description be an accurate of the rule. See say, means to that would course avoid Internet, Protecting Promoting Open problem: First To state the obvi- Amendment See, right. on that Second, infringing that Turner tification for suggests the FCC apply e.g., Riley in the same v. National Federation Broadcasting may not Carolina, Inc., context because Blind North 487 U.S. way in the Internet 781, 796-97, do not face the 101 L.Ed.2d service (1988); scarcity-of-space problem same kind of Gas & Electric Co. v. Pacific example, might operator, California, that a cable Commission Public Utilities words, argues In the FCC face. other 89 L.Ed.2d 1 (1986) and can “space” have fixed operators cable (plurality opinion); Miami Herald channels; carry only a limited number of Tornillo, v. Publishing Co. therefore, forced-carriage requirements 256-58, 41 L.Ed.2d 730 Amend- necessarily restrict First (1974). would principle packs That foundational operators cable rights depriving ment punch you least as much when have room ability carry some desired con- of their to your platform carry speakers on a lot of contrast, Internet, for the forced- By tent. you your as it when have room on does > necessarily carriage requirements do carry only speakers. рlatform to a few providers of their deprive Internet service short, In Turner Supreme Court’s ability carry any of their desired con- Broadcasting decisions mean that Internet everyone. space tent. There is providers possess service a First Amend- too, little sense argument, That makes right ment to exercise their editorial dis- a matter of First Amendment law. basic carry cretion over what content to and how protection go does not First Amendment sure, carry it. To be the Turner Broad- you large have a away simply because casting sparked great decisions have con- large A platform. communications book- troversy they because have constrained right store has the same to exercise edito- ability regulate the Government’s Sup- rial discretion as a small bookstore. See, e.g., marketplace. communications Su- capacity every has to sell pose Amazon Crawford, san First Amendment Common currently publication therefore book and Sense, (2014); L. 127 Harv. Rev. scarcity space does not face the that Benjamin, Transmitting, Minor Ed- Stuart bookstore does. Could Government iting, Communicating: Determining and sell, feature, Amazon to therefore force Speech” Encom- What “The Freedom of basis, promote every equal and book on an (2011); passes, 60 Duke L.J. prohibit promoting and Amazon from Yemini, Moran Mandated Network Neu- recommending or au- particular books trality and the First Amendment: Lessons thors? Of course not. And there is no Approach,. Turner and a New 13 Va. reason for a different here. Put sim- result & Tech. Those critics J.L. technological architec- ply, Internet’s very arguments. Perhaps advance forceful may pro- ture mean that Internet service someday Supreme Court will overrule content; provide can unlimited viders But and until or narrow those cases. unless they that does not mean must. happens, lower courts must follow the Broadcasting mind, moreover, Supreme Court. The Turner why Keep is so. cases landmark decisions that were were The First Amendment affords editors (and have) intended to marked First speakers right speak not to and not to others, carry speech Amendment boundaries for communica- or favor unwanted century. governmental jus- gatekeepers absent sufficient tions in the 21st And least ous, supposed actually imposes Amendment "rule” that followed would not raise First prohibitions no mandates or and need not be issue. decisions, under those the First Amend- Does the FCC’s net rule satis- fy scrutiny? intermediate ment does not allow the FCC to treat The answer is no. providers pipeline Internet service as mere

operators rather than as First Amend- abstract, In the the intermediate scruti- ment-protected speakers.9 editors and ny (as test is somewhat question-begging test, matter).

is the strict scrutiny for that The test necessarily almost calls for com- B mon-law-like articulating decisions recognizing exceptions qualifications light In of the Broadcasting Turner de- rights. constitutional In particular this cisions, service have context, however, the Supreme Court has course, Amendment rights. First Of under already applied the scrutiny intermediate law, Court’s case First test in a way provides relatively clear rights always Amendment are not abso- guidance for lower courts. may lute: The Government sometimes in- fringe rights on First Amendment if Applying the intermediate scrutiny, the Tur justification Broadcasting a ner Government shows sufficient Court held that content- neutral restrictions on a doing so. communications provider’s service speech and editorial that, Broadcasting Turner establishes rights may justified be if the pro service impose regulations content-neutral on In- possesses vider monopoly pow “bottleneck providers, ternet service the Government er” in the geographic relevant market. Id. satisfy scrutiny must the intermediate test. 661, 2445; 114 S.Ct. see also id. at 666- test, satisfy scrutiny To the intermediate 67, 2445; Broadcasting Turner regulation the promote Government’s must II, 180, 117 520 U.S. S.Ct. 1174 (controlling interest,” governmental be “substantial J.).10 opinion Kennedy, But absent a suppression “unrelated to the of free ex- company’s demonstration of a pow market pression,” impose a restriction on market, in geographic er the relevant the rights great- First Amendment that “is no may Government not interfere with a cable er than is essential to the furtherance of operator’s provider’s or an Internet service Broadcasting, interest.” Turner 512 right First to exercise editori Amendment (internal quota- U.S. at 114 2445 al discretion over the content it carries. omitted) (quoting tion mark United States Communications, See Comcast Cable LLC O’Brien, 367, 377, (D.C. 2013) v. FCC, 88 S.Ct. v. 717 F.3d Cir. (1968)). J., 20 L.Ed.2d 672 (Kavanaugh, concurring); Cablevision rehearing advocating 9. The concurrence in the denial of have little interest in for the First en banc notes that the trade cable association rights provid- Amendment of Internet service NCTA has not raised a First Amendment ar- programming ers and video distributors. That gument. providers But other Internet service presumably explains NCTA’s current silence argument have raised the First Amendment on the First Amendment issue. this and other forums. And NCTA itself has previously argued that net obli- II, Broadcasting In Turner Justice Kenne- See, gations e.g., violate the First Amendment. dy’s opinion justices controlling for four was National Cable & Telecommunications Asso- represented "position because it taken ciation, Preserving Comment Letter on judg- those Members who concurred (Jan. 2010). Open Internet 49-64 More- grounds.” ] on narrowest Marks v. ment over, point the concurrence's reflects a mis- States, United understanding of who NCTA is. NCTA now L.Ed.2d represents providers content well as cable operators. providers obviously And content any problem of addressing than FCC, Rather 597 F.3d v. Systems Corp. neutrality rule in- 2010) the net J., power, market (D.C. (Kavanaugh, dissent- Cir. pro- service private Internet compels stead ing). for all supply open platform viders to Broadcasting the Turner At the time of thereby speakers, and would-be decisions, mo- operators exercised cable number of diversify and increase the in the local television power cable nopoly Internet. The rule available on the voices afforded monopoly power That markets. of some forcibly reduces the relative voices unfairly dis- ability operators cable content Internet service and stations and broadcast advantage certain other Inter- relative voices of enhances the competitive In the absence of networks. providers. content net places few market, station had a broadcast circumstances, in rare except But operator cable declined turn when allow the Gov- Amendment does not First intervention, Government carry it. Without choices of regulate the content ernment cer- could have disfavored operators cable just editors so that Govern- private and indeed forced some tain broadcasters voices and alter may ment enhance certain altogether. the market out of broadcasters citizenry. As available to the the content available the content That would diminish Buckley stated in v. Supreme Court con- to consumers. Valeo, important of the most sen- one market- operators’ cable cluded history: The in First Amendment tences power justified Gov- distorting monopoly government may restrict the “concept that Because of the cable intervention. ernment society in elements of our speech of some ulti- power, the Court monopoly operators’ voice of oth- order to enhance the relative must-carry statute. See mately upheld the wholly foreign to the First Amend- ers is II, Broadcasting 520 U.S. at 196- Turner 1, 48-49, 612, 46 424 96 S.Ct. ment.” U.S. 208, (controlling opinion of 1174 117 S.Ct. (1976). in Turner 659 The Court L.Ed.2d J.). Kennedy, Buckley Broadcasting re-affirmed many Supreme have other principle, as in case is for the FCC this problem The See, e.g., and since. Court cases before Broadcasting, here, in Turner unlike Freedom Enterprise Free Club’s Arizona that Internet ser has not shown the FCC 721, Bennett, 741, PAC v. 564 U.S. Club in a power market possess vice (2011); 2806, L.Ed.2d 664 180 Indeed, market. geographic relevant FEC, v. 558 U.S. United Citizens it has not freely acknowledges that (2010); 753 175 L.Ed.2d power. market to demonstrate even tried Grant, n.7, 426 v. 108 Meyer that “these rules Order states (1988); 1886, 100 L.Ed.2d 425 First S.Ct. address, designed to and are not do not Bellotti, v. 435 Bank Boston National with, maintenance acquisition or deal 765, 790-92, 98 55 L.Ed.2d S.Ct. U.S. abuse, po real or power or its of market 707 Promoting the Protecting and tential.” Buckley Internet, with that bedrock 30 FCC Rcd. Consistent Open ¶ Broadcasting did not (2015).11 Turner principle, 11 n.12 operators on the fact that the cable tried to show relied the FCC has not 11. Because exactly power.” power, possessed monopoly need not determine market "bottleneck I 2445; showing in power would entail what a market see also id. at U.S. at respect and with to market share 666-67, this context 114 S.Ct. 2445. Broadcasting, the Court like. In Turner satisfy allow' the Government to interme- suppression of free expression; if and scrutiny merely by asserting diate an in- incidental restriction on alleged First diversifying increasing terest in the Amendment greater freedoms is no than is speakers number of available on cable essential to the furtherance of that inter- all, est.”) systems. added) (internal After if that (emphasis interest sufficed quotation omitted). uphold must-carry regulation without a marks If the relevant communi- showing power, of market marketplace the Turner cations competitive is a mar- ket, Broadcasting litigation theory would have un- is that the marketplace differently. folded much itself will both Supreme generate provide room diversity Court would have had little multiplicity voices, or no need to justification determine without a need or operators whether the cable for Govern- had ment interference power. private market But editorial choices. That is the emphasized and relied on lesson of the the Gov- critical sentence in Buckley, it power ernment’s market is the lesson of showing when indeed, Turner Broadcasting-, and upheld the Court is the must-carry require- lesson of the entire history of II, ments. Turner First Broadcasting competition Amendment and 196-208, (control- law. 117 S.Ct. 1174 J.). Indeed, ling opinion Kennedy, implications Consider the if the law were II, Broadcasting Breyer Turner Justice otherwise. If power market need not be specifically disagreed with the Court’s shown, the regulate Government could emphasis power justifi- on market as the editorial decisions of Google, Facebook and must-carry cation for the law. Justice Fox, of MSNBC and of NYTimes.com and Breyer would have held that the Govern- WSJ.com, of YouTube and Twitter. Can promoting ment’s interest a multiplici- really the Government force Facebook and ty satisfy of voices sufficed to intermedi- Google all of those other entities to scrutiny. ate See id. 117 S.Ct. operate as common carriers? Can the Gov- J., (Breyer, concurring part). But really ernment impose forced-carriage or not go Court did that route. equal-access obligations on YouTube and If theory Twitter? the Government’s sure, To be the in diversifying interests accepted, this case were then the answers increasing important gov and content are all, yes. if would be After the Government abstract, ernmental interests in the ac could force providers Internet service to cording Supreme Court. See Turner carry unwanted content even absent 663, Broadcasting, 512 at 114 U.S. S.Ct. showing power, of market then it could do But dysfunction, absent some market to all the same those other entities as well. Government regulation of the content car principled There is no distinction between riage decisions of communications service this hypothetical case those cases. providers is not essential to furthering interests, short, those required satisfy as is In Broadcasting, under Turner 662, scrutiny. intermediate 114 neutrality id. the net rule flunks intermediate (Content-neutral S.Ct. 2445 regulation scrutiny will because the FCC has not shown be sustained “if it furthers an important providers or Internet service possess interest; governmental substantial if the market in a power geographic relevant governmental debatable, moreover, interest is unrelated to the market.12 It is wheth- minimum, Broadcasting Broadcasting 12. At a Turner require re- Tumer even seems quires the power Government to show market more from the Government. The Government satisfy scrutiny. in order to apparently intermediate But the must also show that market 434 providers, not from Gov- make such a market net service could

er the FCC reason, say, the For that some ernment. competitive showing in the current power freely inter- must be able to Government has ex- leading scholar marketplace. One influ- in the market to counteract the vene of “vibrant com- presence that the plained providers. ence of Internet service market service in the Internet petition” any see how court it “difficult to makes two re- argument That necessitates rationale artic- the bottleneck could invoke with, First Amend- begin To sponses. intru- justify greater in Turner I to ulated ment is a restraint on the Government providers’ editorial dis- into sions speakers editors and protects private permissible than would be cretion First Amend- regulation. The Government newspapers.” Christopher S. respect independent media and protects ment Yoo, Myth Speech Free independent marketplace communications Experi- Internet as an Unintermediated and over- against Government control ence, L. Rev. 78 Geo. Wash. reaching.14 (2010). event, try did not In point, the Turner Broad- More to the showing power such a market to make already grant the Govern- casting cases here.13 ample authority ment to counteract power by private Inter- reflects a fear exercise of market neutrality

The net rule If the Internet ser- speech today providers. to free net service that the real threat power, have market then such as Inter- vice private comes from entities They ad actually disadvantage sion of the First Amendment. have power would be used to See, thereby extremely thoughtful arguments. providers, diminish- vanced certain content diversity e.g., content avail- R. ing the Democracy and amount of Sunstein, and the Prob Cass Speech (1993); Broadcasting, 512 U.S. at Post & able. See Turner Robert lem of Free 664-68, 2445; Shanor, Broadcasting 114 S.Ct. Turner Amanda Adam Smith's First Amend II, 196-213, (con- ment, 117 S.Ct. 1174 520 U.S. Harv. L. Rev. F. 165 But J.). trolling opinion Kennedy, laissez-faire model still reflects the traditional tenor of the Court’s First basic Indeed, jurisprudence. ap neutrality raise a Amendment 13. Some defenders of net proach have slope argument: the First Amendment slippery If First Amend- seems rule, See, grown only stronger really net then in recent decades. ment bars the 786, 2729, Brown, e.g., would also bar Govern- 564 U.S. 131 S.Ct. the First Amendment Inc., 708; regulation telephone companies v. IMS Health ment L.Ed.2d Sorrell scary- person-to-person calls. That 180 L.Ed.2d 544 connect Stevens, hypothetical unpersuasive, (2011); sounding how- States v. 559 U.S. United ever, (2010); telephone company because the is not 176 L.Ed.2d 435 Citi United, engaged carrying making mass commu- zens 753; nications in those circumstances: "Mass-me- Thompson L.Ed.2d v. Western States range 357, 1497, speech implicates Center, of free dia broader 535 U.S. 122 S.Ct. Medical speech (2002); of audi- values that include interests L.Ed.2d 563 Lorillard Tobacco Co. 152 intermediaries, speak- 525, 2404, well as ences and as Reilly, v. 533 U.S. 121 S.Ct. 150 Yoo, Speech, (2001); Free 78 Geo. Wash. L. Rev. ers.” Orleans L.Ed.2d 532 Greater New person-to-person Association, The at 701. transmission Broadcasting Inc. v. United 1923, implicate States, 173, does not the same communications 119 S.Ct. 144 527 U.S. slippery (1999); editorial discretion issues. So Liquormart, 44 Inc. v. L.Ed.2d Island, 1495, slope argument persuasive reason to is not Rhode 517 U.S. fear, recognizing, (1996); refrain from Internet ser- Rubin v. Coors Brew 134 L.Ed.2d 711 rights. Co., providers’ vice First Amendment ing 115 S.Ct. court, (1995). we As a lower L.Ed.2d 532 Supreme juris must take the Court’s years, many highly respected aca- course 14. Over the questioned prudence we find it. have that vi- as demic commentators may impose open-access the Government apart from the rule’s invalidity under the carriage obligations. major or similar In other rules doctrine discussed in I Part words, private if providers Internet service opinion. this possess power, market then Turner already

Broadcasting gives the Govern- In the hierarchical system court estab- that problem. ment tools confront III, lished Article .a lower court must Therefore, it important crystal to be carefully Supreme follow precedent. Court key clear about one point: Supreme The If faithfully we apply Supreme current precedents First Amendment Court’s al here, Court doctrine then this becomes a impose low the Government to net neutral fairly First, straightforward case. Supreme ity obligations provid on Internet service Court precedent requires congres- clear possess power. ers that market In that sional authorization for an agency’s major respect, Broadcasting Turner reached Utility rule. See Air Regulatory Group v. ground. Supreme middle Court did EPA, (2014). The net far go not as some wanted terms of neutrality major rule is a rule. But Con- protecting operators’ cable editorial discre gress clearly has not authorized the FCC operators tion even when the cable have to issue neutrality the net rule. The rule is power. argued market Some that a cable Second, therefore unlawful. operator should receive same First precedent Court establishes protections Amendment as a newspaper, providers service have a First Amendment protected whose editorial discretion is even right to exercise editorial discretion over the newspaper power. has market if whether carry and how- to Internet con- Tornillo, 241, 94 418 U.S. S.Ct. 2831. But tent. Broadcasting See Turner System, in Turner Broadcasting did not FCC, Inc. v. adopt principle that absolutist for cable 129 L.Ed.2d 497 The Government operators. may interfere with that right only if it Therefore, showing absent a of market shows that an Internet provider service power, the Government must keep its power has market a relevant geographic hands off the editorial decisions of Inter- (or market. But the FCC has not shown providers. net service a showing Absent show) attempted even power market power, market may Government record, therefore, here. On this the rule tell Internet service how to exer- violates the First Amendment. cise their editorial discretion about what indepen- For those two alternative and carry content to or favor more than reasons, dent the net rule is the Government can tell Amazon or Poli- unlawful and must be I respect- vacated. promote; tics & Prose what books to or tell fully disagree panel’s contrary with the Washington Drudge Post or the Re- and, given decision the exceptional impor- port carry; what columns to or tell ESPN issue, ‍‌‌​‌​​‌​‌​‌‌‌​‌​​​‌​‌​​‌​​​​‌‌‌‌‌‌‌‌‌​​‌‌​‌‌​​​​‍respectfully tance of the dissent show; or the games NFL Network what of rehearing the denial en banc. Appealing or tell How or Bench Memos feature; what articles to or tell Twitter or post;

YouTube what videos to or tell Face- Google

book or what content to favor. record,

On this the net rule

violates the Amendment. First For alone, unlawful,

reason the rule is even

Case Details

Case Name: United States Telecom Assoc. v. FCC [Order In Slip Opinion Format]

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 1, 2017

Citation: 855 F.3d 381

Docket Number: 15-1063 Consolidated with 15-1078, 15-1086, 15-1090, 15-1091, 15-1092, 15-1095, 15-1099, 15-1117, 15-1128, 15-1151, 15-1164

Court Abbreviation: D.C. Cir.