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Commonwealth of Virginia Amicus Brief, No. 11-1355 (D.C. Cir.)

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Released: November 1, 2012
USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 1 of 40
ORAL ARGUMENT NOT YET SCHEDULED
_________________________________
No. 11-1355
(and consolidated cases)
______________________

In the United States Court of Appeals

for the District of Columbia Circuit
______________________

VERIZON

,








Appellant,
v.

FEDERAL COMMUNICATIONS COMMISSION

,








Appellee.
________________

On Petitions for Review

from the Federal Communications Commission
_________________

BRIEF OF THE COMMONWEALTH OF VIRGINIA AND THE

STATES OF GEORGIA, MICHIGAN, OKLAHOMA,

SOUTH

CAROLINA, AND WEST VIRGINIA AS AMICUS CURIAE

IN SUPPORT OF REVERSAL


KENNETH T. CUCCINELLI, II
CHARLES E. JAMES, JR.
Attorney General of Virginia
Chief Deputy Attorney General


E. DUNCAN GETCHELL, JR.
OFFICE OF THE ATTORNEY
(VSB #14156)
GENERAL
Solicitor General of Virginia
900 East Main Street
dgetchell@oag.state.va.us
Richmond, VA 23219
Counsel of Record
Telephone: (804) 786-2436

Facsimile: (804) 786-1991
WESLEY G. RUSSELL, JR.
Counsel for the
(VSB #38756)
Commonwealth of Virginia
Deputy Attorney General
wrussell@oag.state.va.us



USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 2 of 40

CERTIFICATE OF PARTIES,

RULINGS UNDER REVIEW, AND RELATED CASES


A.
Parties and Amici

The States of Georgia, Michigan, Oklahoma, South Carolina, West
Virginia, and the Commonwealth of Virginia appear as amicus curiae in
support of Appellants-Petitioners.
The principal parties in these consolidated cases are Appellant-
Petitioner Verizon, Appellants-Petitioners MetroPCS Communications,
Inc. and its FCC-licensed affiliates (MetroPCS 700 MHz, LLC;
MetroPCS AWS, LLC; MetroPCS California, LLC; MetroPCS Florida,
LLC; MetroPCS Georgia, LLC; MetroPCS Massachusetts, LLC;
MetroPCS Michigan, Inc.; MetroPCS Networks California, LLC;
MetroPCS Networks Florida LLC; MetroPCS Texas, LLC; and
MetroPCS Wireless, Inc.) (collectively ―MetroPCS‖), Petitioner Free
Press, Appellee-Respondent Federal Communications Commission, and
Respondent United States of America.
ITTA – The Independent Telephone and Telecommunications
Alliance has appeared as intervenor in support of Appellants-
Petitioners. National Association of Regulatory Utility Commissioners,

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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 3 of 40
National Association of State Utility Consumer Advocates, Public
Knowledge, Vonage Holdings Corporation, the Open Internet Coalition,
and CTIA – The Wireless Association® have appeared as intervenors in
support of Appellee-Respondents.
As set forth in the appendix to the ruling on review, the persons
who appeared before the agency in the proceedings below are:
100 Black Men of America et al.
2Wire, Inc.
4G Americas, LLC
4Info, Inc.
ACT 1 Group et al.
Adam Candeub and Daniel John McCartney
ADTRAN, Inc.
Adventia Innovative Systems
African American Chamber of Commerce - Milwaukee
African Methodist Episcopal Church
Aircell LLC
Akamai Technologies, Inc.
Alabama State Conference of the NAACP Alarm Industry
Communications Committee
Alcatel-Lucent
Allbritton Communications Company
Alliance for Digital Equality
Alliance for Telecommunications Industry Solutions
Amazon.com
American Arab Chamber of Commerce
American Association of Independent Music American Association of
People with Disabilities American Business Media
American Cable Association American Center for Law and Justice
American Civil Rights Union
American Consumer Institute CCR American Council of the Blind

ii


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 4 of 40
American Federation of Television & Radio Artists, Directors Guild of
America, International Alliance of Theatrical Stage Employees, Screen
Actors Guild
American Homeowners Grassroots Alliance
American Indian Chamber of Commerce of Wisconsin
American Legislative Exchange Council
American Library Association, Association of Research Libraries,
EDUCAUSE
Americans for Prosperity
Americans for Tax Reform and Media Freedom Project Americans for
Tax Reform Digital Liberty Project Americans for Technology
Leadership
Annie McGrady
Anti-Defamation League
AOL Inc. Arts+Labs
Asian American Justice Center Assemblywoman Debbie Smith
Association for Competitive Technology
Association of Research Libraries
Association of Research Libraries, EDUCAUSE, Internet2, NYSERNet,
and ACUTA AT&T Inc.
Automation Alley
Ball State University Center for Information and Communications
Science
Barbara A. Cherry
Barbara S. Esbin
Big Brothers Big Sisters of Will and Grundy Counties
Black Leadership Forum, Inc.
Bret Swanson, President, Entropy Economics LLC Bright House
Networks, LLC
Broadband Institute of California and Broadband Regulatory Clinic
Broadcast Music, Inc. BT Americas Inc.
Cablevision Systems Corporation
California Consumers for Net Neutrality California Public Utilities
Commission Camiant, Inc.
Carbon Disclosure Project
Career Link Inc.
Catherine Sandoval and Broadband Institute of California

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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 5 of 40
CDMA Development Group, Inc. Center for Democracy & Technology
Center for Individual Freedom
Center for Media Justice, Consumers Union, Media Access Project, and
New America
Center for Rural Strategies
Center for Social Media
Central Washington Hispanic Chamber of Commerce
CenturyLink
Chairman Kenneth D. Koehler, McHenry County Board
Chamber of Commerce of St. Joseph County
Charter Communications
Christopher S. Yoo
Christopher Sacca
Cincinnati Bell Wireless LLC Cisco Systems, Inc.
City of Philadelphia
Clearwire Corporation
Coalition of Minority Chambers
ColorOfChange.org
Comcast Corporation
Communications Workers of America
Communications Workers of America—District 2 in West Virginia
Communications Workers of America—Local 3806
Communications Workers of America—Local 4900
Competitive Enterprise Institute
COMPTEL CompTIA
Computer & Communications Industry Association
Computer Communications Industry Association, Consumer Electronics
Association
Computing Technology Industry Association
CONNECT
Connecticut Association for United Spanish Action, Inc. Connecticut
Technology Council
Consumer Policy Solutions
Corning Incorporated
Corporation for National Research Initiatives
Council of Baptist Pastors of Detroit & Vicinity, Inc. Covad
Communications Company

iv


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 6 of 40
Cox Communications, Inc.
Craig Settles (Successful.com) CREDO Action
Cricket Communications, Inc. CTIA - The Wireless Association CWA
Indiana State Council
CWA Local 4900
Damian Kulash
Daniel Lyons
Data Foundry, Inc.
David Clark, William Lehr, and Steve Bauer
David D.F. Uran, Mayor, City of Crown Point, Indiana
Deborah Turner Debra Brown Derek Leebaert
Dickinson Area Partnership Digital Education Coalition Digital
Entrepreneurs
Digital Society
DISH Network L.L.C.
Distributed Computing Industry Association
Downtown Springfield, Inc. EarthLink, Inc.
Eastern Kentucky’s Youth Association for the Arts, Inc.
Economic Development Council of Livingston County
Eight Mile Boulevard Association
El Centro
Electronic Frontier Foundation
Elgin Area Chamber Elizabeth A. Dooley, Ed. D. Entertainment
Software Association Ericsson Inc.
Erie Neighborhood House
Fiber-to-the-Home Council
Free Press
Frontier Communications
Future of Music Coalition
Future of Privacy Forum
G. Baeslack
General Communication, Inc.
Genesee Regional Chamber of Commerce
George Ou
Georgetown/Scott County Kentucky Chamber of Commerce
Georgia Minority Supplier Development Council

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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 7 of 40
Global Crossing North America, Inc. Global Intellectual Property
Center
Google Inc.
Great River Economic Development Foundation
Greater Kokomo Economic Development Alliance
GSM Association GVNW Consulting, Inc. Hamilton County Alliance
Hance Haney Hannah Miller Harris Corporation
HB Clark
Hispanic Leadership Fund
Hispanic Technology and Telecommunications Partnership
Hmong/American Friendship Association, Inc. Hughes Network
Systems, LLC
Illinois Hispanic Chamber of Commerce
Independent Creator Organizations
Independent Film & Television Alliance
Independent Telephone & Telecommunications Alliance
Indiana Secretary of State
Indianapolis Urban League
Information and Communications Manufacturers and Service Providers
Information Technology and Innovation Foundation
Information Technology Industry Council Institute for Emerging
Leaders, Inc. Institute for Liberty
Institute for Policy Innovation
Institute for Policy Integrity
Intellectual Property and Communications Law Program at Michigan
State
University College of Law
International Documentary Association, Film Independent, and others
Internet Freedom Coalition
Internet Innovation Alliance
Internet Society
Intrado Inc. and Intrado Communications Inc. Ionary Consulting
Jared Morris
Jeanne K. Magill, Pabst Farms Development Inc.
Joe Armstrong, Tennessee State Representative
Joe Homnick
John Palfrey

vi


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 8 of 40
John Staurulakis, Inc.
Johnson County Board of Commissioners
Joint Center for Political and Economic Studies Joliet Region Chamber
of Commerce & Industry Kankakee County Farm Bureau
Karen Kerrigan, President & CEO, Small Business & Entrepreneurship
Council
Karen Maples
Kentucky Commission on the Deaf and Hard of Hearing
Labor Council for Latin American Advancement
Lake Superior Community Partnership
Lakewood Chamber of Commerce
Latin American Chamber of Commerce of Charlotte
Latin Chamber of Commerce of Nevada
Latinos for Internet Freedom and Media Action Grassroots Network
Latinos in Information Sciences & Technology Association
Laurence Brett Glass, d/b/a LARIAT
Lawerence E. Denney, Speaker of the House, State of Idaho
Lawrence County Economic Growth Council
Lawrence Morrow
Leadership East Kentucky
League of United Latin American Citizens
Leap Wireless International, Inc. and Cricket Communications, Inc.
Level 3 Communications LLC
Links Technology Solutions, Inc.
Lisa Marie Hanlon, TelTech Communications LLC M3X Media, Inc.
Mabuhay Alliance
Maneesh Pangasa Mary-Anne Wolf Matthew J. Cybulski Mayor Brad
Stephens
Mayor George Pabey, City of East Chicago, Indiana
Mayor Leon Rockingham, Jr.
Mayor Rudolph Clay, Gary, Indiana
McAllen Solutions
Media Action Grassroots Network, ColorOfChange.org, Presente.org,
Applied Research Center, Afro-Netizen, National Association of
Hispanic Journalists, Native Public Media, and Rural Broadband Policy
Group
MegaPath, Inc. and Covad Communications Company

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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 9 of 40
Messaging Anti-Abuse Working Group MetroPCS Communications, Inc.
Michele Hodges, Troy Chamber Microsoft Corp.
Mid-Atlantic Community Papers Association, on behalf of Association of
Free Community Papers, Community Papers of Michigan, Free
Community Papers of New York, Community Papers of Florida,
Midwest Free Community Papers, Community Papers of Ohio and West
Virginia, Southeastern Advertising Publishers Association, Wisconsin
Community Papers
Mike Riley
Ministerial Alliance Against the Digital Divide
Mississippi Center for Education Innovation
Mississippi Center for Justice MLB Advanced Media, L.P. Mobile
Future
Mobile Internet Content Coalition
Motion Picture Association of America, Inc. Motorola, Inc.
Nacional Records
Nate Zolman
National Association for the Advancement of Colored People
National Association of Manufacturers
National Association of Realtors
National Association of State Utility Consumer Advocates
National Association of Telecommunications Office & Advisors
National Black Chamber of Commerce
National Cable & Telecommunications Association
National Coalition on Black Civic Participation
National Council of La Raza
National Emergency Number Association
National Exchange Carrier Association, Inc.
National Exchange Carrier Association, Inc., National
Telecommunications
Cooperative Association, Organization for the Promotion &
Advancement of Small Telecommunication Companies, Eastern Rural
Telecom Association, Western Telecommunications Alliance
National Farmers Union
National Foundation for Women Legislators High Speed Internet
Caucus
National Hispanic Caucus of State Legislators

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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 10 of 40
National Hispanic Media Coalition
National Medical Association
National Organization of Black Elected Legislative Women et al.
National Organizations
National Rural Health Association National Spinal Cord Injury
Association National Taxpayers Union
National Telecommunications Cooperative Association
National Urban League
Netflix, Inc. Network 2010
New America Foundation
New Jersey Rate Counsel
New York State Office of Chief Information Officer/Office for
Technology
(CIO/OFT)
Nicholas Bramble, Information Society Project at Yale Law School
Nickolaus E. Leggett
Nippon Telegraph and Telephone Corporation
Nokia Siemens Networks US LLC
Northern Nevada Black Cultural Awareness Society
Office of the Attorney General of Virginia
Office of the Mayor, City of Peru
Older Adults Technology Services, Inc. Open Internet Coalition
Open Media and Information Companies Initiative
Operation Action U.P. Oregon State Grange
Organization for the Promotion & Advancement of Small
Telecommunication Companies
PAETEC Holding Corp. Patricia Dye
Performing Arts Alliance
Phil Kerpen, Vice President, Americans for Prosperity
Property Rights Alliance
Public Interest Advocates
Public Interest Commenters
QUALCOMM Incorporated
Qwest Communications International Inc. R. L. Barnes
Rainbow PUSH Coalition
Recording Industry Association of America
Red Hat, Inc.

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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 11 of 40
Rev. W.L.T. Littleton
Richmond Chamber of Commerce
RNK Communications
Robert K. McEwen d/b/a PowerView Systems
Robert Steele, Cook County Commissioner
Rural Cellular Association
Safe Internet Alliance
Saint Xavier University
Sandvine Inc.
Satellite Broadband Commenters
SavetheInternet.com
Scott Cleland Scott Jordan Sean Kraft Sean Sowell Seth Johnson
Shelby County Development Corporation
Skype Communications S.A.R.L. Sling Media, Inc.
Smartcomm, LLC
Smithville Telephone Company
Software & Information Industry Association
Songwriters Guild of America
Sony Electronics Inc.
Southern Company Services, Inc.
Southern Wayne County Regional Chamber of Commerce
Sprint Nextel Corp.
St. Louis Society for the Blind and Visually Impaired
Stephen Beck
Steve Forte, Chief Strategy Officer, Telerik stic.man of Dead Prez
SureWest Communications
Susan Jacobi
TDS Telecommunications Corp. Tech Council of Maryland TechAmerica
Telecom Italia, S.P.A.
Telecom Manufacturer Coalition
Telecommunications Industry Association
TeleDimensions, Inc. Telefonica S.A.
Telephone Association of Maine
Texas Office of Public Utility Counsel
Texas Public Policy Foundation
Texas Statewide Telephone Cooperative, Inc.
The Ad Hoc Telecommunications Users Committee

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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 12 of 40
The Berroteran Group
The Disability Network
The Free State Foundation
The Greater Centralia Chamber of Commerce & Tourism Office
The Greenlining Institute
The Heartland Institute
The Nebraska Rural Independent Companies
The Senior Alliance
Thomas C. Poorman, President, Zanesville-Muskingum County
Chamber of Commerce
Thomas D. Sydnor II, Senior Fellow and Director, Center for the Study
of Digital Property at the Progress & Freedom Foundation
Thomas Richard Reinsel, Executive in Residence, Sewickley Oak
Capital
Thomas W. Hazlett
Tim Wu
Time Warner Cable Inc. T-Mobile USA, Inc.
tw telecom inc.
U.S. Chamber of Commerce
Union Square Ventures
United Service Organizations of Illinois
United States Hispanic Chamber of Commerce
United States Telecom Association
UNITY: Journalists of Color, Inc.
Upper Peninsula Economic Development Alliance
Upper Peninsula Health Plan
Urban League of Metropolitan Seattle
Various Advocates for the Open Internet
Verizon and Verizon Wireless
Via Christi Health System eCare-ICU Village of Maywood
Vincent Watts of the Greater Stark County Urban League
Voice on the Net Coalition Vonage Holdings Corp. Voto Latino
Washington State Grange
Wayne Brough, James Gattuso, Hance Haney, Ryan Radia, and James
Lakely
Windstream Communications, Inc. Winston-Salem Urban League

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Wireless Communications Association International, Inc. Wireless
Internet Service Providers Association
World Institute on Disability et al.
Writers Guild of America, East AFL-CIO Writers Guild of America,
West, Inc.
XO Communications, LLC YWCA of St. Joseph County


B. Ruling Under Review

Appellants-Petitioners appealed the final order of the Federal
Communications Commission captioned In re Preserving the Open
Internet; Broadband Industry Practices, Report and Order, Docket Nos.
09-191, 07-52, 25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg.
59192 (Sept. 23, 2011) (JA ).

C.
Related Cases
This case has been consolidated with Case Nos. 11-1356, 11-1403,
11-1404, and 11-1411.
This case is related to Cellco Partnership d/b/a Verizon Wireless
v. FCC, Nos. 11-1135 & 11-1136 (D.C. Cir.), in that both cases involve
substantially the same parties and the similar legal issue of the
Commission’s statutory authority under Section 706 and Title III of the
Communications Act to regulate broadband Internet services and the

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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 14 of 40
extent to which such regulation constitutes prohibited common-carrier
regulation under FCC v. Midwest Video Corp., 440 U.S. 689 (1979).










By: /s/ E. Duncan Getchell, Jr.

E. DUNCAN GETCHELL, JR.

(VSB #14156)

Solicitor General of Virginia

Office of the Attorney General

900 East Main Street

Richmond, VA 23219

Telephone: (804) 786-7240

Facsimile: (804) 371-0200

dgetchell@oag.state.va.us

Counsel of Record


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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 15 of 40

TABLE OF CONTENTS

Page

CERTIFICATE OF PARTIES, RULINGS UNDER REVIEW, AND
RELATED CASES .............................................................................. i
TABLE OF CONTENTS ........................................................................ xiv
TABLE OF AUTHORITIES .................................................................... xv
STATEMENT OF IDENTITY, INTERESTS, AND AUTHORITY TO
FILE AS AMICI ................................................................................. 1
SUMMARY OF ARGUMENT ................................................................... 1
ARGUMENT ............................................................................................. 2
I.
The Order Subjects Broadband Internet Providers to
Common-Carrier Regulation, in Contravention of Statute. .. 2
A.
Telecommunication Laws Prohibit Common-Carrier
Regulation of Broadband Internet Providers. ............... 3
B.
The Order Imposes Common-Carrier Obligations on
Broadband Internet Providers by Fixing Prices,
Prohibiting Discrimination between Users and Uses,
and Requiring Public Disclosure of Practices. .............. 5
II.
The Order's Assertion of Authority is Untethered to
and Unbounded by the FCC's Statutory Delegations
of Authority. .......................................................................... 10
A.
There is No Express Statutory Authority for the FCC
to Regulate Broadband Internet Providers as Such. .. 12
B.
The Order's Claim of Ancillary Authority Fails Because
The Ancillary Authority Claimed is Unbounded. ....... 17
CONCLUSION ........................................................................................ 19
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
LIMITATIONS ................................................................................. 21
CERTIFICATE OF SERVICE ................................................................. 22

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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 16 of 40

TABLE OF AUTHORITIES

Page

Cases


Am. Library Ass'n v. FCC,
406 F.3d 689 (D.C. Cir. 2005).................................................... 3, 15, 26
*FCC v. Comcast,
600 F.3d 642 (D.C. Cir. 2010).................. 7, 15, 16, 17, 18, 21, 22, 23, 25
*FCC v. Midwest Video Corp.,
440 U.S. 689 (1979) .......................................................... 8, 9, 10, 12, 13
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .............................................................................. 27
National Ass'n of Regulatory Util. Comm'rs v. FCC,
533 F.2d 601 (D.C. Cir. 1976)................................................... 23, 24, 26
Nat'l Ass'n of Regulatory Util. Comm'rs v. FCC,
525 F.2d 630, 641 (D.C. Cir. 1976) ............................................. 8, 12, 13
Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs.,
545 U.S. 967 (2005) ................................................................................ 6

Statutes


20 U.S.C. § 7801(18) ................................................................................ 15
20 U.S.C. § 7801(38) ................................................................................ 15
47 U.S.C. § 1302 ................................................................................ 13, 17
47 U.S.C. § 1302(a) ............................................................................ 13, 15

*Authorities upon which we chiefly rely are marked with asterisks.
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47 U.S.C. § 1302(b) ............................................................................ 13, 15
47 U.S.C. § 1302(c) ............................................................................ 13, 15
47 U.S.C. § 151 ........................................................................................ 18
47 U.S.C. § 153(24) .................................................................................... 5
47 U.S.C. § 153(50) .................................................................................... 3
47 U.S.C. § 153(51) .................................................................................... 3
47 U.S.C. § 153(53) .................................................................................... 3
47 U.S.C. § 154(k)(1) ............................................................................... 16
47 U.S.C. § 201(a) .................................................................................... 10
47 U.S.C. § 202(a) .................................................................................... 10
47 U.S.C. § 203(a) ...................................................................................... 9
47 U.S.C. § 218 .................................................................................. 10, 16
47 U.S.C. § 230 ........................................................................................ 16
47 U.S.C. § 230(b)(2) .......................................................................... 16, 19
47 U.S.C. § 332(c)(1)(A) .............................................................................. 4
47 U.S.C. § 332(c)(2) ................................................................................... 5
47 U.S.C. § 332(d)(1) .................................................................................. 4
47 U.S.C. § 332(d)(3) .................................................................................. 4
47 U.S.C. §§ 151 - 621 ................................................................................ 3
47 U.S.C. §§ 201 - 231 ................................................................................ 3

Rules


Fed. R. App. P. 29(a) .................................................................................. 1
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Administrative Materials


Appropriate Framework for Broadband Access to the Internet Over
Wireline Facilities,
20 F.C.C.R. 14853 (2005) ....................................................................... 4
Appropriate Regulatory Treatment for Broadband Access to the Internet
Over Wireless Networks,
22 F.C.C.R. 5901 (2007) ......................................................................... 4
In re Deployment of Wireline Servs. Offering Advanced Telecomms.
Capability,
13 F.C.C.R. 24,012 (1998) .................................................................... 14
Preserving the Open Internet,
25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192
(Sept. 23, 2011) ............................................... 2, 5, 6, 7, 8, 12, 14, 15, 18

Legislative Materials


Internet Freedom Preservation Act,
S. 2917, 109th Cong. (2006) ................................................................. 19
Internet Freedom, Broadband Promotion, and Consumer Protection
Act of 2011,
S. 74, 112th Cong. (2011) ..................................................................... 19
Internet Non-Discrimination Act of 2006,
S. 2360, 109th Cong. (2006) ................................................................. 19
Network Neutrality Act of 2006,
H.R. 5273, 109th Cong. (2006) ............................................................. 19
The Full-Year Continuing Appropriations Act of 2011,
H.R. 1, 112th Cong. (2011); H. Amdt. to H.R. 1,
112th Congress (2011) .......................................................................... 19

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STATEMENT OF IDENTITY,

INTERESTS, AND AUTHORITY TO FILE AS AMICI


The Commonwealth of Virginia, pursuant to Fed. R. App. P. 29(a),
files this Amicus Brief in support of the argument made by the Joint
Brief for Verizon and MetroPCS (Doc. 1381604) that the FCC's
assertion of regulatory authority is without legal basis. Virginia and
the other Amici States have an interest in preserving the actual
statutory scheme established by Congress because of their policy in
favor of property rights and free markets and of preserving the residual
regulatory power retained by the States. The Congressional scheme,
properly construed, leaves room for those closest and most accountable
to regulate in the interests of their constituencies and reserves open
space for individual innovation and free exchange unchecked by the
heavy hand of distant, unaccountable bureaucracies. Because the
FCC's interpretation of Congress' delegation, where it does not actually
violate its express terms, is untethered to the statutory text and knows
no logical limit, it should be rejected.

SUMMARY OF ARGUMENT


Congress has delegated to the FCC certain, defined regulatory
authority. Specifically, Congress elected to afford the FCC the power to
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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 20 of 40
regulate, as common carriers, certain telecommunications providers, and
to withhold from the FCC regulatory authority over information service
providers and private mobile service providers ("broadband Internet
providers"), such as appellants. Because the challenged order, Preserving
the Open Internet, 25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg.
59192 (Sept. 23, 2011) ("Order"), subjects broadband Internet providers to
common-carrier-type regulation, in violation of Congress' express
limitation, the Order is beyond the FCC's authority.

Not only is the FCC regulating contrary to expressed intent, it has
not identified any plausible, affirmative statutory authority for the FCC
to regulate as the Order does. Instead, the FCC in the Order cites a
number of disparate provisions, sharing only one commonality: no one
provision standing alone, nor all of them standing together, confers the
claimed authority. The FCC's attempt to override the settled judgment of
Congress not to regulate in this way should be rejected.

ARGUMENT

I.

The Order Subjects Broadband Internet Providers to
Common-Carrier Regulation, in Contravention of Statute.


Although it "is enough here for [the Court] to find that the
Communications Act of 1934 does not indicate a legislative intent to
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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 21 of 40
delegate authority to the Commission to regulate" as they desire to,
American Library Association v. FCC, 406 F.3d 689, 706 (D.C. Cir.
2005), the services regulated by the Order are expressly defined to lie
outside the purview of the FCC.

A.

Telecommunication Laws Prohibit Common-Carrier
Regulation of Broadband Internet Providers.


The Communications Act of 1934 ("Act"), 47 U.S.C. §§ 151 through
621, as amended, authorizes the broad regulation of "telecommunication
carriers," which includes "any provider of telecommunication services"
who offer "directly to the public, or to such classes of users as to be
effectively available directly to the public, regardless of the facilities
used," to transmit information, "for a fee," "between or among points
specified by the user, of information of the user's choosing, without
change in the form or content of the information as sent and received."
Section 3(50), (51), and (53); 47 U.S.C. § 153(50), (51), and (53). The Act
provides that "telecommunication carriers" are to "be treated as a
common carrier" subject to broad FCC regulation under Title II, Sections
201 through 231; 47 U.S.C. §§ 201 through 231, but "only to the extent
that it is engaged in providing telecommunication services." Section
3(53); 47 U.S.C. § 153(53).
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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 22 of 40

The Act also provides for common-carrier regulation of "commercial
mobile service." That is, all mobile services "provided for profit [that]
make[] interconnected service available (A) to the public or (B) to such
classes of eligible users as to be effectively available to a substantial
portion of the public." Crucially, the Act expressly exempts "private
mobile service" from common-carrier regulation "for any purpose." See
Section 332(c)(1)(A) and (2), (d)(1) and (3); 47 U.S.C. § 332(c)(1)(A) and
(2), (d)(1) and (3).

In providing broadband Internet service, telecommunication
carriers are not providing "telecommunication services" that are subject
to "mandatory common-carrier regulation."1 Nat'l Cable & Telecomms.
Ass'n v. Brand X Internet Servs., 545 U.S. 967, 974 (2005). Rather, in
providing that service, the carriers fall within the regulatory
classification of "information service" providers. Section 3(24); 47

1 The various types of broadband Internet service, whether wireline,
Appropriate Framework for Broadband Access to the Internet Over
Wireline Facilities
, 20 F.C.C.R. 14853, 14862-65 (2005) ("Wireline
Order"), wireless, or mobile wireless, Appropriate Regulatory Treatment
for Broadband Access to the Internet Over Wireless Networks
, 22
F.C.C.R. 5901, 5909-12, 5915-21 (2007) ("Wireless Order"), have been
defined, like the cable broadband Internet service in Brand X, as an
"information service" that is "not subject to Title II regulation as
common carriers." Wireless Broadband Order, 22 F.C.C.R. at 5916.
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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 23 of 40
U.S.C. § 153(24). Such providers "are not subject to mandatory
common-carrier regulation" by the FCC, but only to the FCC's "Title I
ancillary jurisdiction," contained in Section 4(i), 47 U.S.C. § 154(i). See
Brand X, 545 U.S. at 975-76 ("The Act regulates telecommunications
carriers, but not information-service providers, as common carriers.");
see also, Act § 332(c)(2); 47 U.S.C. § 332(c)(2) (prohibiting regulation of
private mobile service providers as common carriers). Thus, the FCC is
duty bound to refrain from common-carrier regulation of broadband
Internet providers, a point the FCC conceded in FCC v. Comcast, 600
F.3d 642, 645 (D.C. Cir. 2010), and did not dispute in the Order. Yet
the "fixed and mobile broadband providers" who are regulated by the
Order are unquestionably being regulated as common carriers despite
being only providers of information services and private mobile services.
See Order, 76 Fed. Reg. at 59192.

B.

The Order Imposes Common-Carrier Obligations on
Broadband Internet Providers by Fixing Prices,
Prohibiting Discrimination between Users and Uses,
and Requiring Public Disclosure of Practices.


Despite the FCC's conclusory claim to the contrary, the agency is
imposing many common-carrier obligations on all broadband Internet
providers. Hence, the Order's requirements violate the limitation in
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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 24 of 40
Section 332(c)(2), as well as the limitation in Section 3(24). See Order,
76 Fed. Reg. at 59208 n.92. It is the "character of [the] regulatory
obligations" imposed on the carrier, not whether "the rules promote
statutory objectives," that controls whether the FCC's regulation of
entities not subject to common-carrier regulation exceed its authority.
See FCC v. Midwest Video Corp. (Midwest Video II), 440 U.S. 689, 702
(1979). At bottom, a provider is made a "common carrier" whenever the
law prohibits the provider from "'mak[ing] individualized decisions, in
particular cases, whether and on what terms to deal.'" Id. at 701
(quoting Nat'l Ass'n of Regulatory Util. Comm'rs v. FCC (NARUC I),
525 F.2d 630, 641 (D.C. Cir. 1976)).

Significantly, for purposes of this appeal, the Order promulgates
four rules, three of which are placed in Sections: the "Transparency,"
"No Blocking," and "No Unreasonable Discrimination" provisions, 8.3,
8.5, and 8.7, respectively. The fourth requirement, the Order's ban on
"charging . . . a fee" "for delivering traffic to or carrying traffic from the
broadband provider's end-user customers" to "edge providers," those
who provide "content, application[s], service[s], [or] device[s]" to end
users, constitutes the "No Fee" rule. Order, 76 Fed. Reg. at 59192 n.1,
6


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 25 of 40
59205, 59232. These four rules constitute "a series of interrelated
obligations ensuring public access to [broadband Internet service] and
regulat[ing] the manner in which access is to be afforded and the
charges that may be levied for providing it." Midwest Video II, 440 U.S.
at 692. Therefore, "[e]ffectively, the Commission has relegated
[broadband Internet service providers], pro tanto, to common-carrier
status." Id. at 700-01.

First, the "No Blocking" rule prohibits "fixed broadband Internet
access service" providers from blocking "lawful content, applications,
services, or non-harmful devices" and "mobile broadband Internet
access service" providers from blocking "consumers from accessing
lawful Web sites" or blocking "applications that compete with the
provider's voice or video telephony services." Order, 76 Fed. Reg. at
59232. The rule also "bars broadband providers from impairing or
degrading particular content, applications, services, or non-harmful
devices so as to render them effectively unusable." Id. at 59205. Thus,
the rule imposes on all broadband Internet providers a duty to accept
(and thus provide the infrastructure to facilitate) all edge provider
7


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 26 of 40
traffic, from whatever source and of whatever type, a key attribute of
common-carrier status.

The
"No
Unreasonable
Discrimination"
rule
prohibits
"unreasonably discriminat[ing] in transmitting lawful network traffic
over a consumer's broadband Internet access service." Order, 76 Fed.
Reg. at 59232. Broadband Internet providers are prohibited from
entering into "a commercial arrangement [with] a third party to directly
or indirectly favor some traffic over other traffic," and from "prioritizing
its own content, applications, or services, or those of its affiliates." Id.
at 59206, 59207. Forbidding a private company from tying price to
service or preferring certain classes of customers gives rise to common-
carrier status.2

These restrictions, coupled with the "No Fee" rule, which serves to
fix the price to be charged the public for service, completely prevent

2 That the "No Blocking" and "No Unreasonable Discrimination" rules
allow for "reasonable network management" have no effect upon
whether common-carrier obligations are imposed, just as allowing a bus
company to require would-be riders to enter the bus one at a time, and
sit two to a seat, does not change the nature of the obligation to
transport all persons at the same rate. See NARUC I, 525 F.2d at 641
(reciting that common carriers retain the right to "turn away" business
"because it is not of the type normally accepted or because the carrier's
capacity has been exhausted.").
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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 27 of 40
broadband providers from "'mak[ing] individualized decisions, in
particular cases, whether and on what terms to deal.'" Midwest Video
II, 440 U.S. at 701 (quoting NARUC I, 525 F.2d at 641). And the
"Transparency" rule imposes a modernized tariffing obligation on
broadband Internet providers akin to that imposed on common carriers.
See Section 203(a); 47 U.S.C. § 203(a) (requiring common carriers to file
and publicly display schedules of charges for transmission).

According to Midwest Video II, courts should determine whether
any portion of the service provided is made subject to common-carriage
obligations, not whether the regulated entity remains free to control
other portions of its enterprise. See 440 U.S. at 700-01 n.9 (noting that
"[a] cable system may operate as a common carrier with respect to a
portion of its service only" in holding that access rules that required
"cable operators to [allow all] members of the public who wish to
communicate by the cable medium" to viewers to do so on their cable
systems "relegated cable systems . . . to common-carrier status"); see
also NARUC I, 525 F.2d at 641 (To be a common carrier, "a given
carrier's services [need not] practically be available to the entire public.
One may be a common carrier though the nature of the service rendered
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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 28 of 40
is sufficiently specialized as to be of possible use to only a fraction of the
total population.").

The fact that these rules would constitute valid exercises of the
FCC's authority to regulate common carriers confirms the Order's
character as one imposing common-carrier obligations for broadband
Internet providers, in excess of the FCC's authority. See Section 201(a);
47 U.S.C. § 201(a) (requiring "every common carrier engaged in . . .
communication by wire or radio to furnish such communication service
upon reasonable request"); Section 201(b); 47 U.S.C. § 201(b) (requiring
that "[a]ll charges . . . be just and reasonable"); Section 202; 47 U.S.C. §
202(a) (prohibiting "any common carrier [from] mak[ing] any unjust or
unreasonable discrimination in charges, practices, classifications,
regulations, facilities, or services"); Section 218; 47 U.S.C. § 218
(requiring common carriers to provide certain information to the FCC).

II.

The Order's Assertion of Authority is Untethered to and
Unbounded by the FCC's Statutory Delegations of
Authority.


No provision of the Act may be fairly read to foreshadow, much
less intend, FCC regulation of broadband Internet access as undertaken
in the Order. "It is axiomatic that administrative agencies may issue
10


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 29 of 40
regulations only pursuant to authority delegated to them by Congress,"
and it is similarly axiomatic that "[t]he FCC may act either pursuant to
express statutory authority to promulgate regulations addressing a
variety of designated issues involving communications, . . . or pursuant
to ancillary jurisdiction," but may not act simply on its own sense of
good policy on all matters within its general sphere of interest. Am.
Library Ass'n, 406 F.3d at 691, 692, 698 ("[T]he FCC's power to
promulgate legislative regulations is limited to the scope of the
authority Congress has delegated to it."). And the FCC's ancillary
authority may be exercised only over those "regulated subject[s]" within
the FCC's Title I jurisdictional grant and then only by regulations
"'reasonably ancillary to the Commission's effective performance of its
statutorily mandated responsibilities.'" Comcast, 600 F.3d at 646
(quoting Am. Library Ass'n, 406 F.3d at 692). Because the Order is not
within the FCC's expressly delegated regulatory authority over
broadband Internet service, or any authority ancillary to its express
authority, the Order exceeds the outer limits of the FCC's power.
11


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 30 of 40

A.

There is No Express Statutory Authority for the FCC
to Regulate Broadband Internet Providers as Such.


In the present case, as in the past, the FCC founds its regulations
not on "delegations of regulatory authority" by Congress, but on mere
generalized statements of Congressional purpose, policy, or objectives.
See Comcast, 600 F.3d at 654. But "statements of policy, by themselves,
do not create 'statutorily mandated responsibilities.'" Comcast, 600
F.3d at 644 (holding that "[t]he teaching" of the case law on the FCC's
ancillary authority is "that policy statements alone cannot provide the
basis for the Commission's exercise of ancillary authority"). And the
requisite "close and searching analysis of congressional intent," ACLU
v. FCC, 823 F.2d 1554, 1557 (D.C. Cir. 1987), turns up no evidence that
the "broad authority" to regulate the Internet claimed by the FCC was
delegated to it by Congress. See Order, 76 Fed. Reg. at 59214.

As recently as 2010, the FCC conceded the lack of any express
authority to regulate broadband Internet services. Comcast, 600 F.3d
at 645. To defend this Order, however, the FCC cobbles together an
array of statutory policy statements in lieu of statutory delegations of
authority. The only serious candidate of a source of express authority
claimed by the Order is Section 706 of the 1996 Telecommunications
12


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 31 of 40
Act ("1996 Act"), 47 U.S.C. § 1302, entitled "Advanced
telecommunications incentives." That section provides:
The Commission and each State commission with
regulatory jurisdiction over telecommunications
services shall encourage the deployment on a
reasonable
and
timely
basis
of
advanced
telecommunications capability to all Americans
(including, in particular, elementary and secondary
schools and classrooms) by utilizing, in a manner
consistent with the public interest, convenience, and
necessity, price cap regulation, regulatory forbearance,
measures that promote competition in the local
telecommunications market, or other regulating
methods that remove barriers to infrastructure
investment.
1996 Act § 706(a); 47 U.S.C. § 1302(a). The next subpart directs the
Commission, upon finding that "advanced telecommunications
capability is [not] being deployed to all Americans in a reasonable and
timely fashion," to "take immediate action to accelerate deployment of
such capability by removing barriers to infrastructure investment and
by promoting competition in the telecommunications market,"
specifically targeting "unserved" "geographical areas." 1996 Act §
706(b); 47 U.S.C. § 1302(b) and (c).

After this Court concluded that the FCC was bound by an earlier
interpretation of that provision as not providing "'an independent grant
13


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 32 of 40
of authority'" to which any regulation could be ancillary, Comcast, 600
F.3d at 658-59 (quoting In re Deployment of Wireline Servs. Offering
Advanced Telecomms. Capability, 13 F.C.C.R. 24,012, 24,047, ¶ 77
(1998) (Advanced Series Order)), the FCC, in the Order under review,
refused to honor that earlier Order's plain meaning, as construed by
this Court, and instead cited Section 706 as a font of "substantive
authority." Order, 76 Fed. Reg. at 59215 n.126, n.128. In view of this
Court's decision, the FCC is not free to simply ignore its earlier
interpretation of Section 706. Nor does the text of that statute permit
the construction the FCC has placed upon it.

First, it would be odd indeed to read a statute directing both "[t]he
Commission and each State commission with regulatory jurisdiction
over telecommunication services" to "encourage the deployment on a
reasonable and timely basis of advanced telecommunications capability
to all Americans" as one delegating federal authority to regulate
information services and private mobile services. Furthermore, both
subparts of Section 706 of the 1996 Act speak only to the rate and
extent of geographic deployment and distribution of telecommunications
infrastructure, e.g., the laying of fiber optic lines and so forth, not to the
14


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 33 of 40
network management practices of broadband Internet providers
nationally, putting the latter outside the scope of any supposed
delegation. The fact that the aim of this section is ensuring the
provision of necessary infrastructure to various parts of the country is
confirmed by the repeated references to providing access to the Nation's
"elementary and secondary schools and classrooms." 1996 Act § 706(a)
and (b); 47 U.S.C. § 1302(a), (b), and (c); cf. 20 U.S.C. § 7801(18) and
(38). Finally, by directing the use of specific regulatory powers already
granted to the FCC, see (Doc. 1381604 at 29-30), and not simply
authorizing the FCC to utilize all methods that seem advisable to
accomplish the statutory end, Section 706 confirms that it was not
Congress' intent to delegate to the FCC general regulatory authority
over broadband Internet providers, but only to direct the FCC to use its
conferred powers "to encourage . . . deployment" of network
infrastructure. 1996 Act § 706; 47 U.S.C. § 1302(a).

No other provision cited, or theory postulated, by the FCC fares
any better for none speak to broadband. So the agency is reduced to
postulating statements of Congressional policy or purpose as statutory
delegations. See Order, 76 Fed. Reg. at 59214 (citing Section 230(b)(2);
15


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 34 of 40
47 U.S.C. § 230(b)(2)). But this argument was rejected by this Court
expressly in Comcast. See 600 F.3d at 654 (rejecting Act § 230; 47
U.S.C. § 230 as a basis for FCC regulatory authority over the Internet,
for "policy statements alone cannot provide the basis for the
Commission's exercise of ancillary authority"). In sum, there is no
authority for the "No Blocking," "No Unreasonable Discrimination," and
"No Fee" rules.

Finally, the "Transparency" provision similarly suffers from want
of express statutory authorization. Neither provision cited by the Order
in support, see Comcast, 600 F.3d at 660 (holding that "the Commission
must defend its action on the same grounds advanced in the Order"),
confer upon the FCC a statutory duty to obtain information from
broadband Internet providers. See Section 4(k)(1); 47 U.S.C. § 154(k)(1)
(merely identifying the contents of reports to be submitted to Congress);
Section 218; 47 U.S.C. § 218 (authorizing the FCC to seek "full and
complete information necessary to enable the Commission to perform
the duties and carry out the objects for which it was created," but only
from "all carriers subject to this Act" (emphasis added)). Thus, the FCC
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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 35 of 40
has again failed to "link[] the cited policies to express delegations of
regulatory authority." Comcast, 600 F.3d at 654.

B.

The Order's Claim of Ancillary Authority Fails
Because The Ancillary Authority Claimed is
Unbounded.


By offering a theory of ancillary authority that would create broad
authority where none otherwise exists, the FCC has necessarily failed
to show that the regulations are exercises of authority that "really [are]
incidental to, and contingent upon, specifically delegated powers under
the Act.'" Comcast, 600 F.3d at 653 (quoting National Ass'n of
Regulatory Util. Comm'rs v. FCC (NARUC II), 533 F.2d 601, 612 (D.C.
Cir. 1976)). For to treat as ancillary a claim of authority that would
itself justify the plenary imposition of common-carrier-type access,
public disclosure, non-discrimination, and price-fixing regulation upon a
non-common carrier, "would [not] virtually[, but completely] free the
Commission from its Congressional tether." Id. at 655.

Accepting the FCC's theory of its own ancillary authority under
Section 706 of the 1996 Act, or any other provision, would affirm that
the FCC possesses unbounded authority to regulate broadband
Internet. This fact is demonstrated by the FCC's inability to identify in
17


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 36 of 40
the Order any substantive limits on its authority to regulate broadband
Internet service under its theory. The most it could do was to try to
"obviate the concern of some commenters" by suggesting that it still is
limited to regulating "'interstate and foreign commerce in
communication by wire and radio,'" Order, 76 Fed. Reg. at 59215, 59216
n.129 (quoting Act § 1; 47 U.S.C. § 151), and so presumably could not
regulate the medical industry or the waters of the United States, for
example. The FCC only confirms that it views itself as having plenary
authority to regulate broadband Internet providers when it asserts that
its "understanding of Section 706(a) is . . . harmonious with other
statutory provisions that confer a broad mandate on the Commission,"
being "no broader than other provisions," such as various common-
carrier regulations. Order, 76 Fed. Reg. at 59216.

In obedience to the axiom that "administrative agencies may [act]
only pursuant to authority delegated to them by Congress,'" Comcast,
600 F.3d at 654 (quoting American Library Association, 406 F.3d at
691), courts have uniformly, repeatedly, and rightly rejected
"unbounded" interpretations of agency ancillary authority. See Midwest
Video II, 440 U.S. at 706; see, e.g., Comcast, 600 F.3d at 655; Am.
18


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 37 of 40
Library Ass'n, 406 F.3d at 694; NARUC II, 533 F.2d at 617
("Commission power over the communications industries is not
unlimited"). That should be the result here in deference both to the
express Congressional command to leave the Internet "unfettered by
Federal or State regulation," Section 230(b)(2); 47 U.S.C. § 230(b)(2),
and Congress' implicit direction arising from its refusal to enact so-
called net neutrality legislation.3 In short, it is clear that the FCC
presently lacks any broad authority over broadband Internet services.
See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160
(2000) ("Given this history [of Congressional engagement] and the
breadth of the authority that the FDA has asserted, we are obliged to
defer not to the agency's expansive construction of the statute, but to
Congress' consistent judgment to deny the FDA this power.").

CONCLUSION


The Order should be vacated as beyond the FCC's authority.

3 Various unenacted bills regarding FCC regulation of the Internet
include: Network Neutrality Act of 2006, H.R. 5273, 109th Cong.
(2006); Internet Non-Discrimination Act of 2006, S. 2360, 109th Cong.
(2006); Internet Freedom Preservation Act, S. 2917, 109th Cong. (2006);
Internet Freedom, Broadband Promotion, and Consumer Protection Act
of 2011, S. 74, 112th Cong. (2011); The Full-Year Continuing
Appropriations Act of 2011, H.R. 1, 112th Cong. (2011); H. Amdt. to
H.R. 1, 112th Congress (2011).
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USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 38 of 40






Respectfully submitted,






/s/ E. Duncan Getchell, Jr.






Solicitor General of Virginia

KENNETH T. CUCCINELLI, II
CHARLES E. JAMES, JR.
Attorney General of Virginia
Chief Deputy Attorney General


E. DUNCAN GETCHELL, JR.
OFFICE OF THE ATTORNEY
(VSB #14156)
GENERAL
Solicitor General of Virginia
900 East Main Street
dgetchell@oag.state.va.us
Richmond, VA 23219
Counsel of Record
Telephone: (804) 786-7240

Facsimile: (804) 371-0200
WESLEY G. RUSSELL, JR.
Counsel for the
(VSB #38756)
Commonwealth of Virginia
Deputy Attorney General

ALAN WILSON
SAMUEL S. OLENS
Attorney General
Georgia Attorney General
State of South Carolina
40 Capitol Sq.
P.O. Box 11549
Atlanta, GA 30334
Columbia, SC 29211


BILL SCHUETTE
DARRELL V. MCGRAW, JR.
Michigan Attorney General
West Virginia Attorney General
P. O. Box 30212
Office of the Attorney General
Lansing, MI 48909
State Capitol, Room 26-E

Charleston, WV 25305
E. SCOTT PRUITT

Attorney General of Oklahoma

313 N.E. 21st Street
Oklahoma City, Oklahoma
73105-4894
20


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 39 of 40

CERTIFICATE OF COMPLIANCE

WITH TYPE-VOLUME LIMITATIONS


Pursuant to Fed. R. App. P. 32(a)(7)(C) and Circuit Rule 32(a), I
hereby certify that this brief complies with the type-volume limitation
of Fed. R. App. P. 32(a)(7)(B) because the brief contains 3,527 words,
excluding the parts of the brief exempted by Fed. R. App. P.
32(a)(7)(B)(iii) and Circuit Rule 32(a)(1). I further certify that this brief
complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32(a)(6) because the brief
has been prepared in a proportionally spaced typeface using Microsoft
Word 2007 in Century Schoolbook 14-point font.






/s/ E. Duncan Getchell, Jr.






Solicitor General of Virginia



21


USCA Case #11-1355 Document #1385057 Filed: 07/23/2012 Page 40 of 40

CERTIFICATE OF SERVICE


I hereby certify that the foregoing BRIEF OF THE
COMMONWEALTH OF VIRGINIA AND THE STATES OF GEORGIA,
MICHIGAN, OKLAHOMA, SOUTH CAROLINA, AND WEST
VIRGINIA AS AMICUS CURIAE IN SUPPORT OF REVERSAL has
been filed with the Clerk of the U.S. Court of Appeals for the District of
Columbia Circuit this July 23, 2012, by using the appellate CM/ECF
system, which will send notification of said filing to the attorneys of
record, who have registered with the Court’s CM/ECF system. Nine
copies of the foregoing will be filed with the Clerk of the Court for the
United States of Appeals for the D.C. Circuit within two business days.






/s/ E. Duncan Getchell, Jr.






Solicitor General of Virginia

July 23, 2012

22


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