throbber

`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided October 1, 2019
`
`Argued February 1, 2019
`
`
`No. 18-1051
`
`MOZILLA CORPORATION,
`PETITIONER
`
`v.
`
`FEDERAL COMMUNICATIONS COMMISSION AND UNITED
`STATES OF AMERICA,
`RESPONDENTS
`
`CITY AND COUNTY OF SAN FRANCISCO, ET AL.,
`INTERVENORS
`
`
`Consolidated with 18-1052, 18-1053, 18-1054, 18-1055,
`18-1056, 18-1061, 18-1062, 18-1064, 18-1065, 18-1066,
`18-1067, 18-1068, 18-1088, 18-1089, 18-1105
`
`
`On Petitions for Review of an Order of
` the Federal Communications Commission
`
`
`Pantelis Michalopoulos and Kevin Kendrick Russell
`argued the causes for non-government petitioners. With them
`on the joint briefs were Cynthia L. Taub, Markham C.
`Erickson, Michael A. Cheah, Brian M. Willen, Donald J.
`Evans, Sarah J. Morris, Matthew F. Wood, Colleen Boothby,
`James N. Horwood, Tillman L. Lay, Jeffrey M. Bayne,
`
`
`
`

`

`2
`Katherine J. O=Konski, Andrew J. Schwartzman, Harold J.
`Feld, and Lisa A. Hayes. Keenan P. Adamchak and Kevin S.
`Bankston, entered appearances.
`
`
`Stephanie Weiner argued the cause for intervenors Internet
`Association et al. et al. in support of petitioners. With her on
`the briefs were Christopher J. Wright, Scott Blake Harris, E.
`Austin Bonner, Matt Schruers, John A. Howes, Jr., and
`Anthony R. Segall. Maria K. Myers entered an appearance.
`
`
`Danielle L. Goldstein and Steven C. Wu, Deputy Solicitor
`General, Office of the Attorney General for the State of New
`York, argued the causes for government petitioners. With them
`on the briefs were Barbara D. Underwood, Attorney General
`at the time the brief was filed, Office of the Attorney General
`for the State of New York, Arocles Aguilar, Helen M.
`Mickiewicz, Lisa-Marie G. Clark, Kimberly Lippi, Ester
`Murdukhayeva, Assistant Solicitor General, Office of the
`Attorney General for the State of New York, Greta Hansen,
`Xavier Becerra, Attorney General, Office of the Attorney
`General for the State of California, Sarah E. Kurtz, Deputy
`Attorney General, Nicklas A. Akers, Senior Assistant Attorney
`General, George Jepsen, Attorney General, Office of the
`Attorney General for the State of Connecticut, Jonathan J.
`Blake, Assistant Attorney General, Jeffrey T. Pearlman, Phillip
`R. Malone, Matthew P. Denn, Attorney General, Office of the
`Attorney General for the State of Delaware, Christian D.
`Wright, Director, Consumer Protection, Thomas J. Miller,
`Attorney General, Office of the Attorney General for the State
`of Iowa, Benjamin E. Bellus, Assistant Attorney General,
`Russell A. Suzuki, Attorney General at the time the brief was
`filed, Office of the Attorney General for the State of Hawai=i,
`Clyde J. Wadsworth, Solicitor General, Lisa Madigan,
`Attorney General, Office of the Attorney General for the State
`of Illinois, David Franklin, Solicitor General, Andrew G.
`
`
`
`

`

`3
`Beshear, Attorney General, Office of the Attorney General for
`the Commonwealth of Kentucky, Maura Healey, Attorney
`General, Office of
`the Attorney General
`for
`the
`Commonwealth of Massachusetts, Jared Rinehimer, Assistant
`Attorney General, Janet T. Mills, Attorney General at the time
`the brief was filed, Office of the Attorney General for the State
`of Maine, Brendan O=Neil, Assistant Attorney General, Brian
`E. Frosh, Attorney General, Office of the Attorney General for
`the State of Maryland, Richard L. Trumka, Jr., Assistant
`Attorney General, Lori Swanson, Attorney General, Office of
`the Attorney General for the State of Minnesota, Joseph C.
`Meyer, Assistant Attorney General, Hector Balderas, Attorney
`General, Office of the Attorney General for the State of New
`Mexico, Tania Maestas, Deputy Attorney General, James M.
`Hood, Attorney General, Office of the Attorney General for the
`State of Mississippi, Crystal Utley Secoy, Special Assistant
`Attorney, Gurbir S. Grewal, Attorney General, Office of the
`Attorney General for the State of New Jersey, Jeremy M.
`Feigenbaum, Assistant Attorney General, Joshua H. Stein,
`Attorney General, Office of the Attorney General for the State
`of North Carolina, Kevin Anderson, Senior Deputy Attorney
`General, Peter Kilmartin, Attorney General, Office of the
`Attorney General for the State of Rhode Island, Michael W.
`Field, Assistant Attorney General, Ellen F. Rosenblum,
`Attorney General, Office of the Attorney General for the State
`of Oregon, Andrew Shull, Senior Assistant Attorney General,
`Josh Shapiro, Attorney General, Office of the Attorney
`General for the Commonwealth of Pennsylvania, Michael J.
`Fischer, Chief Deputy Attorney General, Thomas J. Donovan,
`Jr., Attorney General, Office of the Attorney General for the
`State of Vermont, Christopher J. Curtis, Chief, Public
`Protection Division, Karl A. Racine, Attorney General, Office
`of the Attorney General for the District of Columbia, Loren L.
`AliKhan, Solicitor General, Mark R. Herring, Attorney
`General, Office of
`the Attorney General
`for
`the
`
`
`
`

`

`4
`Commonwealth of Virginia, Samuel T. Towell, Deputy
`Attorney General, Robert W. Ferguson, Attorney General,
`Office of the Attorney General for the State of Washington,
`Tiffany Lee, Assistant Attorney General, Dennis J. Herrera,
`and William K. Sanders. Bryan C. Yee, Deputy Attorney
`General, Office of the Attorney General for the State of
`Hawai=i, Sarah E. Kurtz, Deputy Attorney General, Office of
`the Attorney General for the State of California, Michael C.
`Wertheimer, Assistant Attorney General, and John S. Story,
`Attorney, Office of the Attorney General for the State of
`Connecticut, Theresa C. Mueller, Jennifer M. Murphy, and
`James B. Ramsey, entered appearances.
`
`
`Christopher Jon Sprigman was on the brief for amici
`curiae Members of Congress in support of petitioners.
`
`
`Mitchell Stoltz and Corynne McSherry were on the brief
`for amicus curiae Electronic Frontier Foundation in support of
`petitioners.
`
`
`Christopher T. Bavitz was on the brief for amicus curiae
`Engine Advocacy in support of petitioners.
`
`
`MacKenzie Fillow, Edward N. Siskel, Michael P. May, and
`Karen L. Moynahan were on the brief for amici curiae The City
`of New York and 27 other local governments, mayors and
`municipal organizations in support of petitioners.
`
`
`Allen S. Hammond, IV was on the brief for amici curiae
`Professors of Administrative, Communications, Energy,
`Antitrust, and Contract Law and Policy in support of
`petitioners.
`
`
`Jessica L. Ellsworth and Matthew Higgins were on the
`brief for amici curaie The American Council on Education and
`
`
`
`

`

`5
`19 other education and library associations in support of
`petitioners.
`
`
`Henry Goldberg and Devendra T. Kumar were on the brief
`for amicus curiae eBay Inc. in support of petitioners.
`
`
`Adrienne E. Fowler was on the brief for amicus curiae
`Twilio Inc. in support of petitioner.
`
`
`Andrew Jay Schwartzman and James T. Graves were on
`the brief for amicus curiae Consumer Reports in support of
`petitioners.
`
`
`Thomas H. Vidal was on the brief for amici curiae
`Professors Scott Jordan and Jon Peha in support of petitioners.
`
`
`Michael J. Burstein was on the brief for amici curiae
`Professors of Communications Law in support of petitioners.
`
`
`Paul Goodman and Yosef Getachew were on the brief for
`amici curiae Common Cause, et al. in support of petitioners
`and vacation of the order.
`
`
`William Michael Cunningham, pro se, was on the brief for
`amicus curiae William Michael Cunningham in support of the
`public interest.
`
`
`Thomas M. Johnson Jr, General Counsel, Federal
`Communications Commission, argued
`the cause
`for
`respondents. With him on the brief were Kristen C. Limarzi
`and Nickolai G. Levin, Attorneys, U.S. Department of Justice,
`David M. Gossett, Deputy General Counsel, Federal
`Communications Commission, Jacob M. Lewis, Associate
`General Counsel, and James M. Carr and Scott M. Noveck,
`Counsel. Robert J. Wiggers, Attorney, U.S. Department of
`
`
`
`

`

`6
`Justice, and Richard K. Welch, Deputy Associate Counsel,
`Federal Communications Commission, entered appearances.
`
`
`Jonathan E. Nuechterlein argued the cause for ISP
`intervenors. On the brief were Michael K. Kellogg, Scott H.
`Angstreich, Helgi C. Walker, Andrew G.I. Kilberg, Miguel A.
`Estrada, Matthew A. Brill, Matthew T. Murchison, Jeffrey A.
`Lamken, and Stephen E. Coran. C. Frederick Beckner, III,
`Rick Chessen, Kellam M. Conover, Neal M. Goldberg,
`Theodore B. Olson, and Michael S. Schooler entered
`appearances.
`
`
`Ken Paxton, Attorney General, Office of the Attorney
`General for the State of Texas, Kyle D. Hawkins, Solicitor
`General, and John C. Sullivan, Assistant Solicitor General,
`were on the brief for amici curiae The States of Texas, et al. in
`support of respondents.
`
`
`Lawrence J. Spiwak was on the brief for amicus curiae
`Phoenix Center for Advanced Legal and Economic Public
`Policy Studies in support of respondents.
`
`
`Tara M. Corvo and Jonathan Markman were on the brief
`for amici curiae Richard Bennett, et al. in support of
`respondents.
`
`
`Thomas R. McCarthy was on the brief for amici curiae
`Washington Legal Foundation, et al. in support of respondents.
`
`
`John D. Seiver, Daniel P. Reing, and Sarah Oh were on
`the brief for amicus curiae The Technology Policy Institute in
`support of respondents.
`
`
`Charles Kennedy and James Dunstan were on the brief for
`amicus curiae TechFreedom in support of respondents.
`
`
`
`

`

`7
`
`
`
`Arthur J. Burke was on the brief for amicus curiae
`Information Technology and Innovation Foundation in support
`of respondents.
`
`
`Robert N. Weiner was on the brief for amici curiae The
`Georgetown Center for Business and Public Policy and Nine
`Prominent Economists and Scholars in support of respondents.
`
`Leonid Goldstein, pro se, was on the brief as an intervenor
`in support of respondents.
`
`
`John P. Elwood, Matthew X. Etchemendy, Peter C.
`Tolsdorf, Kevin W. Brooks, Dileep S. Srihari, and Daryl
`Joseffer were on the brief for amici curiae The National
`Association of Manufacturers, et al. in support of respondents.
`
`
`David P. Murray was on the brief for amici curiae The
`International Center for Law and Economics and Participating
`Scholars in support of respondents.
`
`
`Robert G. Kirk was on the brief for amicus curiae Roslyn
`Layton in support of respondents.
`
`
`J. Wade Lindsay was on the brief for amicus curiae Tech
`Knowledge in support of respondents.
`
`
`Christopher S. Yoo was on the brief for amicus curiae
`Christopher S. Yoo in support of respondents.
`
`
`Andrew Grimm was on the briefs for intervenor Digital
`Justice Foundation, Inc. in support of neither party.
`
`
`
`
`

`

`8
`Before: MILLETT and WILKINS, Circuit Judges, and
`WILLIAMS, Senior Circuit Judge.
`
`Opinion for the Court filed PER CURIAM.
`
`Concurring opinion filed by Circuit Judge MILLETT.
`
`Concurring opinion filed by Circuit Judge WILKINS.
`
`Opinion concurring in part and dissenting in part filed by
`Senior Circuit Judge WILLIAMS.
`
`TABLE OF CONTENTS
`
` I.  Broadband Internet Classification .................................. 13 
`A.  The Supreme Court’s Decision in Brand X ................. 16 
`B.  DNS and Caching in the 2018 Order ........................... 19 
`C.  Objections to the Classification .................................... 21 
`1.  “Walled Garden” Reading of Brand X ................. 21 
`2.  “Telecommunications Management” Exception ... 22 
`3.  Adjunct-to-Basic Precedent .................................. 32 
`4.  Functional Integration ........................................... 40 
`II.  Mobile Broadband Classification ................................... 46 
`A.  The 2018 Order’s Provisions ....................................... 46 
`B.  Objections to the Classification .................................... 49 
`1.  Meaning of “Public Switched Network” .............. 50 
`2.  Whether Mobile Broadband Is an
`“Interconnected Service” ...................................... 54 
`3.  Whether Mobile Broadband Is the “Functional
`Equivalent” of a Commercial Mobile Service...... 62 
`III.  Section 706 Authority .................................................... 66 
`
`
`
`

`

`9
`IV.  Section 257 and the 2018 Order’s
`Transparency Requirements ........................................... 68 
`V.  Arbitrary and Capricious Challenges ............................. 73 
`A.  Effects on Investment and Innovation ......................... 74 
`B.  Harms to Edge Providers and Consumers ................... 85 
`1.  Reliance on the Transparency Rule ...................... 87 
`2.  Reliance on Competition ....................................... 88 
`3.  Reliance on Antitrust and Consumer
`Protection Laws ..................................................... 91 
`C.  Public Safety ................................................................. 93 
`D.  Reliance Interests ........................................................ 100 
`E.  Pole Attachments ........................................................ 104 
`F.  Lifeline Program ......................................................... 109 
`G.  Cost-Benefit Analysis ................................................. 113 
`H.  Data Roaming Rates ................................................... 119 
`I. Procedural Challenges ................................................ 120
`VI.  Preemption ................................................................... 121 
`A.  Express and Ancillary Authority ................................ 122 
`B.  The Commission’s Asserted Sources of Authority ... 126 
`1. 
`Impossibility Exception ....................................... 126 
`2.  Federal Policy of Nonregulation ......................... 130 
`3.  Case Precedent ..................................................... 133 
`C.  Conflict Preemption .................................................... 135 
`VII. Conclusion ................................................................... 145 
`
`
`
`
`

`

`10
`PER CURIAM: In 2018, the Federal Communications
`Commission adopted an order classifying broadband Internet
`access service as an information service under Title I of the
`Communications Act of 1934, as amended by
`the
`Telecommunications Act of 1996, Pub. L. 104–104, 110 Stat
`56 (“the Act”). See In re Restoring Internet Freedom, 33 FCC
`Rcd. 311 (2018) (“2018 Order”). In so doing, the agency
`pursued a market-based, “light-touch” policy for governing the
`Internet and departed from its 2015 order that had imposed
`utility-style regulation under Title II of the Act.
`
`Petitioners––an array of Internet companies, non-profits,
`state and local governments, and other entities––bring a host of
`challenges to the 2018 Order. We find their objections
`unconvincing for the most part, though we vacate one portion
`of the 2018 Order and remand for further proceedings on three
`discrete points.
`
`The 2018 Order and today’s litigation represent yet
`another iteration of a long-running debate regarding the
`regulation of the Internet. We rehearsed much of this complex
`history in United States Telecom Association v. FCC, 825 F.3d
`674, 689–697 (D.C. Cir. 2016) (“USTA”), and see no need to
`recapitulate here what was so well and thoroughly said there.
`In the interest of reader-friendliness, though, we briefly review
`certain highlights necessary to understand this opinion.
`
`As relevant here, the 1996 Telecommunications Act
`creates two potential classifications for broadband Internet:
`“telecommunications services” under Title II of the Act and
`“information services” under Title I. These similar-sounding
`terms carry considerable significance: Title II entails common
`carrier
`status,
`see 47 U.S.C. § 153(51)
`(defining
`“telecommunications carrier”), and triggers an array of
`statutory restrictions and requirements (subject to forbearance
`
`
`
`

`

`11
`at the Commission’s election). For example, Title II
`“declar[es] * * * unlawful” “any * * * charge, practice,
`classification or regulation that is unjust or unreasonable.” Id.
`§ 201(b). By contrast, “information services” are exempted
`from common carriage status and, hence, Title II regulation.
`
`An analogous set of classifications applies to mobile
`broadband: A “commercial mobile service” is subject to
`common carrier status, see 47 U.S.C. § 332(c)(1), whereas a
`“private mobile service” is not, see id. § 332(c)(2).
`
`The Commission’s authority under the Act includes
`classifying various services into the appropriate statutory
`categories. See National Cable & Telecomms. Ass’n v. Brand
`X Internet Servs., 545 U.S. 967, 980–981 (2005). In the years
`since the Act’s passage, the Commission has exercised its
`classification authority with some frequency.
`
`Initially, in 1998, the Commission classified broadband
`over phone lines as a “telecommunications service.” See In re
`Deployment of Wireline Services Offering Advanced
`Telecommunications Capability, 13 FCC Rcd. 24012 (1998).
`
`Just four years later, though, the Commission determined
`that cable broadband was an “information service,” see In re
`Inquiry Concerning High-Speed Access to the Internet over
`Cable and Other Facilities (“Cable Modem Order”), 17 FCC
`Rcd. 4798 (2002), a choice that the Supreme Court upheld in
`Brand X, 545 U.S. 967. The agency then applied a similar
`classification to wireline and wireless broadband. See In re
`Appropriate Framework for Broadband Access to the Internet
`over Wireline Facilities, 20 FCC Rcd. 14853 (2005) (“2005
`Wireline Broadband Order”); In re Appropriate Regulatory
`Treatment for Broadband Access to the Internet over Wireless
`Networks, 22 FCC Rcd. 5901 (2007) (“Wireless Broadband
`Order”).
`
`
`
`

`

`12
`But in 2015 the Commission took the view that broadband
`Internet access is, in fact, a “telecommunications service” and
`that mobile broadband is a “commercial mobile service.” See
`In re Protecting and Promoting the Open Internet, 30 FCC
`Rcd. 5601 (2015) (“Title II Order”). In USTA, this court
`upheld
`that classification as
`reflecting a
`reasonable
`interpretation of the statute under Chevron’s second step. See
`825 F.3d at 701–706, 713–724; see also Chevron, U.S.A., Inc.
`v. Natural Res. Def. Council, 467 U.S. 837 (1984).
`
`Once again, the Commission has switched its tack. In
`2017, the Commission issued a notice of proposed rulemaking
`seeking to revert to its pre-2015 position, In re Restoring
`Internet Freedom, 32 FCC Rcd. 4434 (2017), and released the
`final order at issue in this case in January 2018.
`
`The 2018 Order accomplishes a number of objectives.
`First, and most importantly, it classifies broadband Internet as
`an “information service,” see 2018 Order ¶¶ 26–64, and
`mobile broadband as a “private mobile service,” see id. ¶¶ 65–
`85. Second, relying on Section 257 of the Act (located in Title
`II but written so as to apply to Titles I through VI), the
`Commission adopts transparency rules intended to ensure that
`consumers have adequate data about Internet Service
`Providers’ network practices. See id. ¶¶ 209–38. Third, the
`Commission undertakes a cost-benefit analysis, concluding
`that the benefits of a market-based, “light-touch” regime for
`Internet governance outweigh those of common carrier
`regulation under Title II, see id. ¶¶ 304–323, resting heavily on
`the combination of the transparency requirements imposed by
`the Commission under Section 257 with enforcement of
`existing antitrust and consumer protection laws, see id. ¶¶ 140–
`154. The Commission likewise finds that the burdens of the
`Title II Order’s conduct rules exceed their benefits. See id.
`¶¶ 246–266.
`
`
`
`

`

`13
`We uphold the 2018 Order, with two exceptions. First, the
`Court concludes that the Commission has not shown legal
`authority to issue its Preemption Directive, which would have
`barred states from imposing any rule or requirement that the
`Commission “repealed or decided to refrain from imposing” in
`the Order or that is “more stringent” than the Order. 2018
`Order ¶ 195. The Court accordingly vacates that portion of the
`Order. Second, we remand the Order to the agency on three
`discrete issues: (1) The Order failed to examine the
`implications of its decisions for public safety; (2) the Order
`does not sufficiently explain what reclassification will mean
`for regulation of pole attachments; and (3) the agency did not
`adequately address Petitioners’ concerns about the effects of
`broadband reclassification on the Lifeline Program.
`I. Broadband Internet Classification
`
`The central issue before us is whether the Commission
`lawfully applied the statute in classifying broadband Internet
`access service as an “information service.” We approach the
`issue through the lens of the Supreme Court’s decision in
`Brand X, which upheld the Commission’s 2002 refusal to
`classify cable broadband as a “telecommunications service.”
`545 U.S. at 974. The Commission’s classification of cable
`modem as an “information service” was not challenged in
`Brand X, see id. at 987, but, given that “telecommunications
`service” and “information service” have been treated as
`mutually exclusive by the Commission since the late 1990s,
`see, e.g., 2018 Order ¶¶ 53, 62 & n.239; Title II Order ¶ 385,
`a premise Petitioners do not challenge, see Mozilla Br. 24, we
`view Brand X as binding precedent in this case.
`
`We start, of course, with the statutory definition. Section
`47 U.S.C. § 153(24) reads:
`
`
`
`

`

`14
`The term “information service” means the offering of
`a capability for generating, acquiring, storing,
`transforming, processing, retrieving, utilizing, or
`making available information via telecommunications
`* * * but does not include any use of any such
`capability for the management, control, or operation
`of a telecommunications system or the management
`of a telecommunications service.
`
`The final clause is known as the “telecommunications
`management”
`exception.
`
`The
`Act
`defines
`“telecommunications
`service”
`(as
`distinct
`from
`“telecommunications,” see id. § 153(50)), as follows:
`
`The term “telecommunications service” means the
`offering of telecommunications for a fee directly to
`the public, or to such classes of users as to be
`effectively available directly to the public, regardless
`of the facilities used.
`
`Id. § 153(53).
`
`The Commission appears to make two arguments for its
`classification. It states first that “broadband Internet access
`service necessarily has the capacity or potential ability to be
`used to engage in the activities within the information service
`definition—‘generating, acquiring, storing,
`transforming,
`processing,
`retrieving, utilizing, or making available
`information via telecommunications,’” 2018 Order ¶ 30
`(quoting 47 U.S.C. § 153(24)), and on that basis alone merits
`an “information service” classification.
`
`The Commission then goes on to say: “But even if
`‘capability’ were understood as requiring more of the
`information processing to be performed by the classified
`service itself, we find that broadband Internet access service
`
`
`
`

`

`15
`meets that standard.” 2018 Order ¶ 33. As we will see, the
`Commission regards this requirement as being met by specific
`information-processing
`features
`that are,
`in
`its view,
`functionally integrated with broadband service, particularly
`Domain Name Service (“DNS”) and caching, about which
`more later. (Petitioners themselves treat the Commission’s
`DNS/caching argument as “an alternative ground” for the
`Commission’s classification. Mozilla Reply Br. 21.)
`
`the familiar Chevron
`is governed by
`Our review
`framework in which we defer to an agency’s construction of an
`ambiguous provision in a statute that it administers if that
`construction is reasonable. See, e.g., American Elec. Power
`Serv. Corp. v. FCC, 708 F.3d 183, 186 (D.C. Cir. 2013) (The
`Chevron framework “means (within its domain) that a
`‘reasonable agency
`interpretation prevails.’”)
`(quoting
`Northern Nat. Gas Co. v. FERC, 700 F.3d 11, 14 (D.C. Cir.
`2012)). By the same token, if “Congress has directly spoken
`to an issue then any agency interpretation contradicting what
`Congress has said would be unreasonable.” Entergy Corp. v.
`Riverkeeper, Inc., 556 U.S. 208, 218 n.4 (2009).
`
`At Chevron Step One, we ask “whether Congress has
`directly spoken to the precise question at issue.” 467 U.S. at
`842. Where “the intent of Congress is clear, that is the end of
`the matter; for [we], as well as the agency, must give effect to
`the unambiguously expressed intent of Congress.” Id. at 842–
`843. But if “the statute is silent or ambiguous with respect to
`the specific issue,” we proceed to Chevron Step Two, where
`“the question for the court is whether the agency’s answer is
`based on a permissible construction of the statute.” Id. at 843.
`However, we do not apply Chevron reflexively, and we find
`ambiguity only after exhausting ordinary tools of the judicial
`craft. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2414–2415 (2019).
`
`
`
`

`

`16
`All this of course proceeds in the shadow of Brand X, which
`itself applied Chevron to a similar issue.
`
`Applying these principles here, we hold that classifying
`broadband Internet access as an “information service” based on
`the functionalities of DNS and caching is “‘a reasonable policy
`choice for the [Commission] to make’ at Chevron’s second
`step.” Brand X, 545 U.S. at 997 (alteration in original) (quoting
`Chevron, 467 U.S. at 845). As we said in USTA, “Our job is to
`ensure that an agency has acted ‘within the limits of
`[Congress’s] delegation’ of authority,” 825 F.3d at 697
`(quoting Chevron, 467 U.S. at 865), and “we do not ‘inquire as
`to whether the agency’s decision is wise as a policy matter;
`indeed, we are forbidden from substituting our judgment for
`that of the agency,’” id. (quoting Association of Am. Railroads
`v. ICC, 978 F.2d 737, 740 (D.C. Cir. 1992)); see also United
`States Telecom Ass’n v. FCC, 855 F.3d 381, 384 (D.C. Cir.
`2017) (“[T]he [Brand X] Court made clear in its decision—
`over and over—that the Act left the [classification] to the
`agency’s discretion.” (Srinivasan, J., joined by Tatel, J.,
`concurring in denial of rehearing en banc)).
`A. The Supreme Court’s Decision in Brand X
`
`Brand X held that, by virtue of the ambiguity of the word
`“offering,” the FCC could permissibly choose not to classify
`cable modem service as a “telecommunications service.”
`Brand X, 545 U.S. at 973–974, 989–992. As to DNS and
`caching, the Brand X Court endorsed the Commission’s
`argument that those functionalities can be relied on to classify
`cable modem service as an “information service.” Challengers
`opposing the FCC had argued that when consumers “go[]
`beyond” certain Internet services offered by cable modem
`companies
`themselves—for example, beyond access
`to
`proprietary e-mail and Web pages (commonly referred to as the
`
`
`
`

`

`17
`cable modem companies’ “walled gardens”)—the companies
`were “offering” a “telecommunications service” rather than an
`“information service.” Id. at 998. The Court rejected this
`claim. It found that such a view “conflicts with the
`Commission’s understanding of the nature of cable modem
`service,” which the Court deemed “reasonable.” Id.; cf. 2018
`Order ¶ 51. The Court explained that—when a user accesses
`purely third-party content online—“he is equally using the
`information service provided by the cable company that offers
`him Internet access as when he accesses the company’s own
`Web site, its e-mail service, or his personal Web page,” Brand
`X, 545 U.S. at 999 (emphasis added), i.e., “walled garden”
`services. Why so?
`
`Brand X’s answer, as relevant here, lay in DNS and
`caching. The argument proceeded in two steps—first, showing
`that DNS and caching themselves can properly fall under the
`“information service” rubric; second, showing that these
`“information services” are sufficiently integrated with the
`transmission element of broadband that it is reasonable to
`classify cable modem service as an “information service.” See
`Brand X, 545 U.S. at 999–1000.
`
`As to the first step, the Court observed that “[a] user cannot
`reach a third party’s Web site without DNS,” Brand X, 545
`U.S. at 999, which “among other things, matches the Web page
`addresses that end users type into their browsers (or ‘click’ on)
`with the Internet Protocol (IP) addresses of the servers
`containing the Web pages the users wish to access,” id. at 987.
`It therefore saw it as “at least reasonable” to treat DNS itself
`“as a ‘capability for acquiring * * * retrieving, utilizing, or
`making available’ Web site addresses and therefore part of the
`information service cable companies provide.” Id. at 999
`(quoting 47 U.S.C. § 153(24)); see also id. at n.3 (rebutting
`dissent’s claim that “DNS does not count as use of the
`
`
`
`

`

`18
`information-processing capabilities of Internet service”). The
`Court applied a cognate analysis to caching, which “facilitates
`access to third-party Web pages by offering consumers the
`ability to store, or ‘cache’ popular content on local computer
`servers,” id. at 999, “obviat[ing] the need for the end user to
`download anew information from third-party Web sites each
`time the consumer attempts to access them,” id. at 999–1000.
`Thus the Court found “reasonable” the FCC’s position that
`“subscribers can reach third-party Web sites via ‘the World
`Wide Web, and browse their contents, [only] because their
`service provider offers the capability for * * * acquiring,
`[storing] * * * retrieving [and] utilizing * * * information.’”
`Id. at 1000 (alterations in original) (some internal quotation
`marks omitted) (quoting In re Federal-State Joint Bd. on
`Universal Serv., 13 FCC Rcd. 11501, 11537–11538 ¶ 76
`(1998) (“Stevens Report”)).
`
`As to the second step, the Brand X Court endorsed the
`FCC’s position
`that—because DNS and caching are
`“inextricably intertwined” with high-speed transmission—it
`was reasonable for the Commission not to treat the resulting
`package as an “offering” of a standalone “telecommunications
`service.” 545 U.S. at 978–979, 989–991; see Cable Modem
`Order at 4823 ¶ 38 (“As currently provisioned, cable modem
`service is a single, integrated service that enables the subscriber
`to utilize Internet access service * * * .”). “[H]igh-speed
`transmission used to provide cable modem service is a
`functionally integrated component of [cable modem] service
`because it transmits data only in connection with the further
`processing of information and is necessary to provide Internet
`service.” Brand X, 545 U.S. at 998 (emphasis added). DNS
`and caching, in turn, are two examples of such “further
`processing” integrated with the data transmission aspect of
`cable modem service. “[A] consumer cannot purchase Internet
`service without also purchasing a connection to the Internet and
`
`
`
`

`

`19
`the transmission always occurs in connection with information
`processing,” id. at 992, in the form of (for example) DNS or
`caching.
` Thus, according to the Supreme Court, the
`Commission reasonably concluded that cable modem service
`is not an offering of a standalone “telecommunications
`service,” but, rather, an “information service”—which by
`definition is offered “via telecommunications.” See id. at 989–
`992; see also 2018 Order ¶ 52.
`B. DNS and Caching in the 2018 Order
`
`The reasoning in the 2018 Order tallies with the line of
`argument in Brand X described above. See, e.g., 2018 Order
`¶¶ 26, 34, 41, 51, 53, 54, 55 n.207, 57. The Commission’s
`principal claim is that “ISPs offer end users the capability to
`interact with information online * * * through a variety of
`functionally integrated information processing components
`that are part and parcel of the broadband Internet access service
`offering itself”—including DNS and caching. Id. ¶ 33. The
`Commission describes DNS and caching as “integrated
`information processing capabilities offered as part of
`broadband Internet access service to consumers today.”
`Id. We hold that under Brand X this conclusion is reasonable.
`
`We note that the 2018 Order alluded to several
`“information
`processing
`functionalities
`inextricably
`intertwined with the underlying service” besides DNS and
`caching, such as “email, speed test servers, backup and support
`services, geolocation-based advertising, data storage, parental
`controls, unique programming content, spam protection, pop-
`up blockers, instant messaging services, on-the-go access to
`Wi-Fi hotspots, and various widgets,
`toolbars, and
`applications.” 2018 Order ¶ 33 n.99. Although the 2018 Order
`states that these “further support the ‘information service’
`clas

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