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Verizon & MetroPCS Brief, No. 11-1355 (D.C. Cir.)

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Released: November 1, 2012
USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 1 of 116

ORAL ARGUMENT NOT YET SCHEDULED

No. 11-1355

_______________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


_____________________________________________________
VERIZON,
Appellant,
v.
FEDERAL COMMUNICATIONS COMMISSION,
Appellee.
_______________________________________________________

ON APPEAL FROM AN ORDER OF THE

FEDERAL COMMUNICATIONS COMMISSION


JOINT BRIEF FOR VERIZON AND METROPCS


Walter E. Dellinger
Helgi C. Walker*
Brianne Gorod
Eve Klindera Reed
Anton Metlitsky
William S. Consovoy
O’MELVENY & MYERS LLP
Brett A. Shumate
1625 Eye Street, NW
WILEY REIN LLP
Washington, DC 20006
1776 K Street, NW
TEL: (202) 383-5300
Washington, DC 20006

TEL: (202) 719-7000

E-MAIL: hwalker@wileyrein.com



Attorneys for Verizon


Dated: July 2, 2012
*Counsel of Record

Additional counsel listed on next page

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 2 of 116

Michael E. Glover
Samir C. Jain
William H. Johnson
WILMER CUTLER PICKERING
VERIZON
HALE AND DORR LLP
1320 North Courthouse Road
1875 Pennsylvania Ave., NW
9th Floor
Washington, DC 20006
Arlington, VA 22201
TEL: (202) 663-6083
TEL: (703) 351-3060


Attorneys for Verizon






Stephen B. Kinnaird*
Carl W. Northrop
PAUL, HASTINGS, JANOFSKY
Michael Lazarus
& WALKER LLP
Andrew Morentz
875 15th Street, NW
TELECOMMUNICATIONS LAW
Washington, DC 20005
PROFESSIONALS PLLC
TEL: (202) 551-1842
875 15th Street, NW, Suite 750

Washington, DC 20005

TEL: (202) 789-3120
Mark A. Stachiw

General Counsel, Secretary

& Vice Chairman

METROPCS COMMUNICATIONS, INC.

2250 Lakeside Blvd.

Richardson, TX 75082
Attorneys for MetroPCS
TEL: (214) 570-4877
Communications, Inc. and its

FCC-licensed affiliates



*Counsel of Record




USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 3 of 116


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES


The undersigned attorneys of record, in accordance with D.C. Cir. R.
28(a)(1), hereby certify as follows:
A.
Parties and Amici

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, 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.
i

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 4 of 116

The Commonwealth of Virginia has appeared as amicus curiae in support of
Appellants-Petitioners.

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
American Federation of Television & Radio Artists, Directors Guild of
America, International Alliance of Theatrical Stage Employees, Screen
Actors Guild
American Homeowners Grassroots Alliance

ii

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 5 of 116
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
CDMA Development Group, Inc.
Center for Democracy & Technology
Center for Individual Freedom

iii

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 6 of 116
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
Cox Communications, Inc.
Craig Settles (Successful.com)
CREDO Action

iv

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 7 of 116
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

v

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 8 of 116
Georgia Minority Supplier Development Council
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.

vi

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 9 of 116
Joe Armstrong, Tennessee State Representative
Joe Homnick
John Palfrey
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

vii

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 10 of 116
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
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 &

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USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 11 of 116
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
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

ix

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 12 of 116
Public Interest Commenters
QUALCOMM Incorporated
Qwest Communications International Inc.
R. L. Barnes
Rainbow PUSH Coalition
Recording Industry Association of America
Red Hat, Inc.
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

x

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 13 of 116
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
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

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USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 14 of 116
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
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
Verizon and MetroPCS appeal 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

xii

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 15 of 116
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 access services and the extent to which such regulation constitutes
prohibited common-carrier regulation under FCC v. Midwest Video Corp., 440
U.S. 689 (1979).*
By: /s/ Helgi C. Walker
_______________________
Helgi C. Walker
WILEY REIN LLP
1776 K Street, NW
Washington, DC 20006
TEL: (202) 719-7000
By: /s/ Stephen B. Kinnaird
________________________
Stephen B. Kinnaird
PAUL, HASTINGS, JANOFSKY & WALKER LLP
875 15th Street, NW
Washington, DC 20006
TEL: (202) 551-1700

*
MetroPCS does not agree that Cellco Partnership is a related case. See
MetroPCS Docketing Statement, No. 11-1403 (D.C. Cir. filed Nov. 29, 2011).

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USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 16 of 116

CORPORATE DISCLOSURE STATEMENTS

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure and Rule
26.1 of this Court, Verizon and MetroPCS hereby submit the following corporate
disclosure statements:
The Verizon companies participating in this filing are Cellco Partnership,
d/b/a Verizon Wireless, and the regulated, wholly-owned subsidiaries of Verizon
Communications Inc. Cellco Partnership, a general partnership formed under the
law of the State of Delaware, is a joint venture of Verizon Communications Inc.
and Vodafone Group Plc. Verizon Communications Inc. and Vodafone Group Plc
indirectly hold 55 percent and 45 percent partnership interests, respectively, in
Cellco Partnership. Both Verizon Communications Inc. and Vodafone Group Plc
are publicly-traded companies. Verizon Communications Inc. has no parent
company. No publicly held company owns 10 percent or more of Verizon
Communications Inc.’s stock. Insofar as relevant to this litigation, Verizon’s
general nature and purpose is to provide communications services, including
broadband Internet access services provided by its wholly-owned telephone
company and Verizon Online LLC subsidiaries and by Verizon Wireless.
MetroPCS Communications, Inc. is a publicly traded company organized to
provide wireless and data service to its customers. MetroPCS 700 Mhz, LLC;
MetroPCS AWS, LLC; MetroPCS California, LLC; MetroPCS Florida, LLC;

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USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 17 of 116
MetroPCS Georgia, LLC; MetroPCS Massachusetts, LLC; MetroPCS Michigan,
Inc.; MetroPCS Networks California, LLC; MetroPCS Networks Florida LLC; and
MetroPCS Texas, LLC are wholly-owned subsidiaries of MetroPCS Wireless, Inc.
MetroPCS Wireless, Inc. is a wholly-owned direct subsidiary of MetroPCS, Inc.,
which in turn is a wholly-owned direct subsidiary of MetroPCS Communications,
Inc. MetroPCS Communications, Inc. has no parent corporation, and only one
publicly-traded company, BlackRock, Inc., through its subsidiary BlackRock
Institutional Trust Company, N.A., owns more than 10 percent of its stock.

xv

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 18 of 116


STATEMENT REGARDING DEFERRED APPENDIX

The parties have conferred and intend to use a deferred joint appendix.

xvi

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 19 of 116

TABLE OF CONTENTS

PAGE

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............i
CORPORATE DISCLOSURE STATEMENTS .................................................. xiv
STATEMENT REGARDING DEFERRED APPENDIX.................................... xvi
TABLE OF AUTHORITIES .............................................................................. xviii
GLOSSARY........................................................................................................ xxvi
JURISDICTIONAL STATEMENT .........................................................................1
STATEMENT OF ISSUES ......................................................................................1
PERTINENT STATUTES........................................................................................1
PRELIMINARY STATEMENT ..............................................................................2
STATEMENT OF FACTS .......................................................................................4
SUMMARY OF ARGUMENT ..............................................................................11
STANDING ............................................................................................................13
ARGUMENT ..........................................................................................................13
STANDARD OF REVIEW ....................................................................................13
I. THE
RULES
DIRECTLY CONFLICT WITH THE
COMMUNICATIONS ACT. .......................................................................14
II.
THE FCC LACKS STATUTORY AUTHORITY FOR THE RULES .......21
III. THE
ORDER VIOLATES THE FIRST AND FIFTH
AMENDMENTS. .........................................................................................42
IV. THE ORDER IS ARBITRARY AND CAPRICIOUS. ...............................50
CONCLUSION .......................................................................................................53
CERTIFICATE OF COMPLIANCE
STATUTORY ADDENDUM
CERTIFICATE OF SERVICE


xvii

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 20 of 116


TABLE OF AUTHORITIES

Page(s)

CASES

ACLU v. FCC,
823 F.2d 1554 (D.C. Cir. 1987)..........................................................................14
Allied-Signal, Inc. v. U.S. Nuclear Regulatory Commission,
988 F.2d 146 (D.C. Cir. 1993)............................................................................53
American Library Ass’n v. FCC,
406 F.3d 689 (D.C. Cir. 2005)................................................................13, 21, 24
Associated Gas Distributors v. FERC,
824 F.2d 981 (D.C. Cir. 1987)............................................................................51
Barnhart v. Sigmon Coal Co.,
534 U.S. 438 (2002)............................................................................................21
Bell Atlantic Telephone Cos. v. FCC,
24 F.3d 1441 (D.C. Cir. 1994)............................................................................42
Burlington Northern & Santa Fe Railroad Co. v. Surface Transportation
Board,
403 F.3d 771 (D.C. Cir. 2005)............................................................................52
C-SPAN v. FCC,
545 F.3d 1051 (D.C. Cir. 2008)..........................................................................14
Cablevision Systems Corp. v. FCC,
597 F.3d 1306 (D.C. Cir. 2010)..........................................................................48
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984)............................................................................................24
City of Ladue v. Gilleo,
512 U.S. 43 (1994)..............................................................................................48

*Authorities upon which we chiefly rely are marked with asterisks.

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USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 21 of 116
Comcast Cablevision of Broward County, Inc. v. Broward County,
124 F. Supp. 2d 685 (S.D. Fla. 2000) .................................................................44
Comcast Corp. v. FCC,
579 F.3d 1 (D.C. Cir. 2009)................................................................................53
*Comcast Corp. v. FCC,
600 F.3d 642 (2010)................................................................................................

...................... 2, 5, 6, 18, 22, 24, 25, 26, 27, 28, 29, 30, 32, 36, 37, 39, 41, 42, 53
Community Television, Inc. v. FCC,
216 F.3d 1133 (D.C. Cir. 2000)..........................................................................40
Competitive Telecommunications Ass’n v. FCC,
998 F.2d 1058 (D.C. Cir. 1993)..........................................................................20
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building &
Construction Trade Council,
485 U.S. 568 (1988)............................................................................................42
Environmentel, LLC v. FCC,
661 F.3d 80 (D.C. Cir. 2011)..............................................................................39
FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800 (2009)..................................................................................32, 52
*FCC v. Midwest Video Corp.,
440 U.S. 689 (1979)................................................. 11, 14, 15, 16, 17, 19, 24, 53
FCC v. NBC(KOA),
319 U.S. 239 (1943)............................................................................................41
FCC v. Sanders Brothers,
309 U.S. 642 (1940)......................................................................................37, 39
*FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000)..........................................................................12, 22, 23, 24
Fox Television Stations, Inc. v. FCC,
280 F.3d 1027 (D.C. Cir. 2002)......................................................................... 51
Gonzales v. Oregon,
546 U.S. 243 (2006)............................................................................................23
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USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 22 of 116
Horsehead Resources Development Co. v. Browner,
16 F.3d 1246 (D.C. Cir. 1994)............................................................................51
Illinois Bell Telephone Co. v. Village of Itasca,
503 F. Supp. 2d 928 (N.D. Ill. 2007)..................................................................44
Iowa Telecommunications Services v. Iowa Utilities Board,
563 F.3d 743 (8th Cir. 2009) ..............................................................................18
Lead Industries Ass’n v. EPA,
647 F.2d 1130 (D.C. Cir. 1980)..........................................................................14
Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982)............................................................................................49
Los Angeles v. Preferred Communications, Inc.,
476 U.S. 488 (1986)............................................................................................42
MCI Telecommunications Corp. v. AT&T Co.,
512 U.S. 218 (1994)......................................................................................15, 40
MPAA v. FCC,
309 F.3d 796 (D.C. Cir. 2002)................................................................13, 38, 39
*NARUC v. FCC,
525 F.2d 630 (D.C. Cir. 1976) .....................................................................14, 20
*NARUC v. FCC,
533 F.2d 601 (D.C. Cir. 1976)..........................................................13, 14, 20, 25
National Fuel Gas Supply Corp. v. FERC,
468 F.3d 831 (D.C. Cir. 2006)......................................................................50, 52
NBC v. United States,
319 U.S. 190 (1943)............................................................................................37
NCTA v. Brand X Internet Services, Inc.,
545 U.S. 967 (2005)........................................................................................5, 15
Penn Central Transportation Co. v. City of New York,
438 U.S. 104 (1978)............................................................................................49
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USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 23 of 116
Qi-Zhuo v. Meissner,
70 F.3d 136 (D.C. Cir. 1995)..............................................................................38
Quincy Cable TV, Inc. v. FCC,
768 F.2d 1434 (D.C. Cir. 1985)..........................................................................46
Regents of University System v. Carroll,
338 U.S. 586 (1950)............................................................................................39
SEC v. Chenery Corp.,
332 U.S. 194 (1947)............................................................................................22
Time Warner Telecom, Inc. v. FCC,
507 F.3d 205 (3d Cir. 2007) ...........................................................................4, 23
Time Warner Entertainment Co. v. FCC,
56 F.3d 151 ...................................................................................................47, 48
Turner Broadcasting System v. FCC,
512 U.S. 622 (1994)....................................................................42, 43, 45, 46, 47
Turner Broadcasting System v. FCC,
520 U.S. 180 (1997)......................................................................................46, 47
United States v. O’Brien,
391 U.S. 367 (1968)......................................................................................45, 46
United States v. Southwestern Cable Co.,
392 U.S. 157 (1968)............................................................................................24
University of Great Falls v. NLRB,
278 F.3d 1335 (D.C. Cir. 2002)..........................................................................14
U.S. AirWaves, Inc. v. FCC,
232 F.3d 227 (D.C. Cir. 2000)......................................................................40, 41
VITELCO v. FCC,
198 F.3d 921 (D.C. Cir. 1999)......................................................................18, 19
Western Broadcasting Co. v. FCC,
674 F.2d 44 (D.C. Cir. 1982)........................................................................40, 41
xxi

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Whitman v. American Trucking Ass’ns,
531 U.S. 457 (2001)......................................................................................23, 27

FEDERAL STATUTES


5 U.S.C. § 706(2) .....................................................................................................14
47 U.S.C. § 153(24) ...................................................................................................4
*47 U.S.C. § 153(51) .....................................................................................4, 11, 15
47 U.S.C. § 153(53) .............................................................................................4, 19
47 U.S.C. § 153(h) ...................................................................................................16
47 U.S.C. § 154(k) ...................................................................................................42
47 U.S.C. § 160 ........................................................................................................29
47 U.S.C. § 201 ........................................................................................................20
47 U.S.C. § 201(b) .......................................................................................17, 30, 34
47 U.S.C. § 202(a) .............................................................................................17, 20
47 U.S.C. § 218 ........................................................................................................42
47 U.S.C. § 230(b)(2).........................................................................................23, 27
47 U.S.C. § 251 ........................................................................................................30
47 U.S.C. § 251(a)(1)...............................................................................................34
47 U.S.C. § 252 ........................................................................................................30
47 U.S.C. § 253 ........................................................................................................30
47 U.S.C. § 254 ........................................................................................................30
47 U.S.C. § 255 ........................................................................................................30
47 U.S.C. § 256 ........................................................................................................30
47 U.S.C. § 257 ........................................................................................................30
xxii

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47 U.S.C. § 258 ........................................................................................................30
47 U.S.C. § 259 ........................................................................................................30
47 U.S.C. § 260 ........................................................................................................30
47 U.S.C. § 261 ........................................................................................................30
47 U.S.C. § 303 ........................................................................................................38
47 U.S.C. § 303(g) ...................................................................................................41
47 U.S.C. § 309(a) ...................................................................................................41
47 U.S.C. § 309(j)(3) ...............................................................................................41
47 U.S.C. § 316(a)(1).........................................................................................38, 39
47 U.S.C. § 332(c)(1)(A) .....................................................................................4, 21
*47 U.S.C. § 332(c)(2)...................................................................................4, 11, 15
47 U.S.C. § 332(d)(1).................................................................................................4
47 U.S.C. § 332(d)(3).................................................................................................4
47 U.S.C. § 335(b)(3)...............................................................................................21
47 U.S.C. § 402(a) .....................................................................................................1
47 U.S.C. § 402(b)(5).................................................................................................1
47 U.S.C. § 522(4) ...................................................................................................36
47 U.S.C. § 522(5) ...................................................................................................36
47 U.S.C. § 522(13) .................................................................................................36
47 U.S.C. § 536 ........................................................................................................36
47 U.S.C. § 548(b) ...................................................................................................37
47 U.S.C. § 1302(a) .....................................................................................28, 29, 30
47 U.S.C. § 1302(b) .................................................................................................33
xxiii

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47 U.S.C. § 1302(c) .................................................................................................33

LEGISLATIVE MATERIALS

Internet Freedom, Broadband Promotion, and Consumer Protection Act of
2011, S. 74, 112th Cong. (2011)...........................................................................8
Internet Non-Discrimination Act of 2006, S. 2360, 109th Cong. (2006)..................8

ADMINISTRATIVE MATERIALS

Appropriate Framework for Broadband Access to the Internet Over Wireline
Facilities,
20 F.C.C.R. 14986 (2005) ...................................................................................5
Appropriate Framework for Broadband Access to the Internet Over Wireline
Facilities,
20 F.C.C.R. 14853 (2005).................................................................................4, 5
Appropriate Regulatory Treatment for Broadband Access to the Internet
Over Wireless Networks,
22 F.C.C.R. 5901 (2007) ..................................................................................4, 5
Connect America Fund,
26 F.C.C.R. 17663 (2011)...................................................................................34
Deployment of Wireline Services Offering Advanced Telecommunications
Capability,
13 F.C.C.R. 24012 (1998) .......................................................................6, 29, 30
Formal Complaint of Free Press et al.,
23 F.C.C.R. 13028 (2008) ...................................................................................5
Framework for Broadband Internet Service,
25 F.C.C.R. 7866 (2010).......................................................................................7
High-Speed Access to the Internet Over Cable and Other Facilities,
17 F.C.C.R. 4798 (2002).................................................................................5, 36
xxiv

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Implementation of the Non-Accounting Safeguards of Sections 271 and 272
of the Communications Act of 1934,
11 F.C.C.R. 21905 (1996)...................................................................................19
Policy & Rules Concerning Rates for Dominant Carriers,
4 F.C.C.R. 2873 (1989).......................................................................................30
Preserving the Open Internet,
24 F.C.C.R. 13064 (2009).....................................................................................6
Sixth Broadband Deployment Report,
25 F.C.C.R. 9556 (2010).....................................................................................33
Time Warner Cable Request for Declaratory Ruling,
22 F.C.C.R. 3513 (WCB 2007) ..........................................................................34

MISCELLANEOUS

A. Schlick, A Third-Way Legal Framework for Addressing the Comcast
Dilemma,

2010 WL 1840579 (May 6, 2010) ........................................................................7

D. Lyons, Virtual Takings: The Coming Fifth Amendment Challenge to Net
Neutrality Regulation,

86 Notre Dame L. Rev. 65 (2011) ......................................................................49

FTC, Staff Report: Broadband Connectivity Competition Policy (2007) ..............52

J. Genachowski, The Third Way: A Narrowly Tailored Broadband
Framework,

2010 WL 1840578 (May 6, 2010) ........................................................................7

Transcript of Oral Argument, Comcast Corp. v. FCC (No. 08-1291) ....................24






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GLOSSARY

1996 Act
Telecommunications Act of 1996

Act

Communications Act of 1934

Advanced Services Order


FCC order released on August 7, 1998 declaring
that Section 706(a) of the 1996 Act does not
constitute an independent grant of statutory
authority to the FCC

Brand X


2005 Supreme Court opinion affirming Cable
Modem Order


Cable Modem Order


FCC order released on March 15, 2002
classifying cable modem Internet access service
as an information service and not a cable service

Comcast


2010 D.C. Circuit opinion vacating the Comcast
Order
and holding that the FCC failed to justify
the exercise of ancillary authority over Comcast’s
network management practices

Comcast Order


FCC order released on August 20, 2008 finding
that Comcast violated “federal Internet policy”
and requiring Comcast to cease certain network
management practices

DOJ

United States Department of Justice

FCC

Federal Communications Commission

JA

Joint Appendix

Midwest Video II


1979 Supreme Court opinion vacating FCC’s
public access rules as impermissible common-
carrier obligations





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MVPDs

Multichannel Video Programming Distributors

NARUC I


1976 D.C. Circuit opinion affirming FCC order
classifying specialized mobile radio systems as
non-common carriers

NARUC II


1976 D.C. Circuit opinion vacating FCC order
preempting state common-carrier regulation over
the use of cable system leased access channels for
two-way, point-to-point, non-video
communications

NOI


FCC notice of Inquiry released on June 17, 2010
proposing to reclassify broadband Internet access
service as a telecommunications service in
response to the Comcast decision

NPRM


FCC Notice of Proposed Rulemaking released on
October 22, 2009 inviting comment on proposal
to adopt Open Internet rules

Order


FCC order released on December 23, 2010
formally adopting “net neutrality” rules that
regulate the broadband Internet access services
offered by wireless and wireline providers

Turner I


1994 Supreme Court opinion holding that the
must-carry provisions of Cable Television
Consumer Protection and Competition Act of
1992 are subject to intermediate scrutiny under
the First Amendment

Turner II


1997 Supreme Court opinion upholding the must-
carry provisions of Cable Television Consumer
Protection and Competition Act of 1992

VoIP


Voice over Internet Protocol

WCB

FCC Wireline Competition Bureau

xxvii

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Wireless Broadband Order


FCC order released on March 23, 2007

classifying wireless broadband Internet access
service as an information service and further
classifying mobile wireless broadband Internet
access service as a private mobile service

Wireline Broadband Order


FCC order released on September 23, 2005
classifying wireline broadband Internet access
service as an information service


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JURISDICTIONAL STATEMENT

This Court has jurisdiction over Appellants’ challenge to Preserving the
Open Internet, 25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192 (Sept.
23, 2011) (“Order”) (JA__), because the Order is final, Appellants “hold[]”
wireless spectrum “license[s] which ha[ve] been modified … by the Commission,”
47 U.S.C. § 402(b)(5); Order ¶¶ 133, 135 (JA__, __), and the appeals were timely
filed. The Federal Communications Commission (“FCC”) has acknowledged that
jurisdiction alternatively exists under 47 U.S.C. § 402(a) because Appellants
timely filed Protective Petitions for Review.

STATEMENT OF ISSUES1

1. Whether
the
Order imposes common-carriage requirements on
services that are statutorily exempt from such requirements or otherwise exceeds
the FCC’s statutory authority.
2. Whether
the
Order is unconstitutional.
3. Whether
the
Order is arbitrary and capricious.

PERTINENT STATUTES


Pertinent statutes are contained in the addendum.

1
MetroPCS, directly adverse to Verizon in another case involving common-
carriage prohibitions, does not join in the common-carrier or Fifth Amendment
arguments.
1

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PRELIMINARY STATEMENT


This appeal challenges the FCC’s second attempt to conjure a role for itself
with respect to regulation of the Internet—in particular, broadband Internet access
service. In Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010), this Court
vacated the FCC’s previous effort as exceeding its statutory authority. Here again,
the FCC has acted without statutory authority to insert itself into this crucial
segment of the American economy, while failing to show any factual need to do so.

Rather than proceeding with caution in light of Comcast, the FCC
unilaterally adopted rules that go even farther than its prior action and impose
dramatic new restrictions on broadband Internet access service providers. The
Order imposes classic common-carrier obligations on broadband providers,
requiring them to carry the traffic of all “edge providers” and even wading into
price controls by setting a uniform, nondiscriminatory price of zero for such
carriage. This regulation of Internet access service is expressly prohibited by the
Communications Act (“Act”).

Despite the FCC’s concession in Comcast that it lacked express authority in
this area, the agency’s latest theory of authority arrogates unto itself plenary power
to control all aspects of broadband Internet access service. Indeed, its sweeping
theory extends to all other components of the Internet—from website, application,
search engine, and content providers to specialized services to Internet backbone
2

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 33 of 116
companies. Tellingly, the FCC found it necessary explicitly to disclaim that the
rules currently reach such entities and even to clarify that other entities, e.g., coffee
shops and airlines, are not covered.

The Commission based this self-described “broad authority” to adopt the
rules not on any express or otherwise clear delegation of authority but on a
hodgepodge of provisions scattered throughout the Act “viewed as a whole.”
Order ¶ 116 (JA__). However, none of these provisions remotely suggests that
Congress ever intended to empower the agency with such vast authority over the
Internet.
The Commission also adopted the Order without any evidence of a
systematic problem in need of solution, candidly recognizing that the Internet was
already “open” and working well for consumers. And the Commission singled out
broadband providers for burdensome new regulation even though other key
providers in the Internet economy have the same theoretical incentive and ability to
engage in the conduct that concerned the FCC.
Finally, the Order infringes broadband network owners’ constitutional rights.
It violates the First Amendment by stripping them of control over the transmission
of speech on their networks. And it takes network owners’ property without
compensation by mandating that they turn over those networks for the occupation
and use of others at a regulated rate of zero, undermining owners’ multi-billion-
3

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 34 of 116
dollar-backed expectations that they would be able to decide how best to employ
their networks to serve consumers and deterring network investment.

STATEMENT OF FACTS


Classification of Broadband Internet Access Service.

The Act defines two
mutually exclusive categories of communications service: (i) “telecommunications
service,” a common-carrier service subject to regulation under Title II, 47 U.S.C.
§§ 153(51), 153(53); and (ii) “information service,” a service exempt from
common-carrier regulation, id. §§ 153(24), 153(51).

It also defines two categories of mobile service. “Commercial mobile
service” is a type of wireless telecommunications service that is interconnected
with the public switched telephone network and subject to common-carrier
regulation under Title II. 47 U.S.C. § 332(c)(1)(A), (d)(1). Any mobile service
that is not a “commercial mobile service” constitutes “private mobile service” that
is, like information service, immune from common-carrier regulation. Id.
§ 332(c)(2), (d)(3).

The FCC has held that wireline and wireless broadband Internet access is an
information service.2 The FCC has also ruled that mobile wireless broadband

2
Appropriate Framework for Broadband Access to the Internet Over Wireline
Facilities, 20 F.C.C.R. 14853, 14862-65 (¶¶ 12-17) (2005) (“Wireline Broadband
Order
”), aff’d, Time Warner Telecom, Inc. v. FCC, 507 F.3d 205 (3d Cir. 2007);
Appropriate Regulatory Treatment for Broadband Access to the Internet Over
Wireless Networks
, 22 F.C.C.R. 5901, 5909-12 (¶¶ 19-29) (2007) (“Wireless
4

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Internet access is a private mobile service. Wireless Broadband Order, 22
F.C.C.R. at 5915-21 (¶¶ 37-56). The Commission explained that these
classifications were “consistent with Congressional intent to maintain a regime in
which information service providers are not subject to Title II regulations as
common carriers,” id. at 5916 (¶ 41), and repeatedly found that Internet service
should exist in “a minimal regulatory environment” to “promote innovative and
efficient communication,” Wireline Broadband Order, 20 F.C.C.R. at 14855 (¶ 1).

Comcast Corp. v. FCC

. In 2005, the FCC adopted a policy statement
regarding broadband Internet access service. Appropriate Framework for
Broadband Access to the Internet Over Wireline Facilities, 20 F.C.C.R. 14986
(2005). The Commission ordered Comcast to cease certain practices that
purportedly “r[an] afoul of” that document. Formal Complaint of Free Press et
al., 23 F.C.C.R. 13028, 13050 (¶ 41) (2008) (“Comcast Order”).
On review, this Court confronted the question “whether the Commission has
authority to regulate an Internet service provider’s network management
practices.” Comcast, 600 F.3d at 644. Noting the FCC’s concession “that it has no
express statutory authority over such practices,” id., the Court vacated the Comcast
Order for failure to demonstrate ancillary authority, id. at 660. Among other

Broadband Order”); see also High-Speed Access to the Internet Over Cable and
Other Facilities
, 17 F.C.C.R. 4798, 4822-23 (¶ 38) (2002) (“Cable Modem
Order
”), aff’d, NCTA v. Brand X Internet Servs., Inc., 545 U.S. 967 (2005).
5

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things, Comcast rejected the FCC’s reliance on Section 706(a) of the
Telecommunications Act of 1996 (“1996 Act”) because an “earlier, still-binding”
FCC decision provided “that section 706 ‘does not constitute an independent grant
of authority.’” Id. at 658 (quoting Deployment of Wireline Services Offering
Advanced Telecommunications Capability, 13 F.C.C.R. 24012, 24047 (¶ 77)
(1998) (“Advanced Services Order”)).

Proceedings Below.

In October 2009, while Comcast was pending, the FCC
proposed formal rules regarding broadband Internet access service. See Preserving
the Open Internet, Notice of Proposed Rulemaking, 24 F.C.C.R. 13064 (2009)
(“NPRM”) (JA__). The NPRM claimed statutory authority based on the ancillary
authority rationale of the Comcast Order, id. ¶¶ 83-85 (JA__-__), and asserted that
Title III provided “additional authority” to regulate broadband service offered “via
spectrum-based facilities,” id. ¶ 86 (JA__).
Numerous commenters demonstrated that the proposed rules were unlawful
and unnecessary. They showed that: the rules constituted prohibited common-
carrier regulation; the FCC lacked statutory authority for the rules; the NPRM’s
unbounded theory of authority would reach all corners of the Internet; and the rules
were unconstitutional. See, e.g., Verizon Comments at 86-123, Docket No. 09-191
(Jan. 14, 2010) (JA__-__); MetroPCS Comments at 4-11, Docket No. 09-191 (Jan.
14, 2010) (JA__-__). Commenters further showed that: the NPRM identified no
6

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 37 of 116
problem in need of regulatory solution; the rules would hamper innovation and
deter network investment; and the focus on broadband providers was irrational
because the lines between networks, applications, and devices are fast
disappearing, and numerous players in the Internet ecosystem, such as content
providers and search engines, play “gatekeeping” roles on the Internet. Verizon
Comments at 31-40, 50-85, 129-30 (JA__, __, __); MetroPCS Comments at 11-14,
24-35, 40-46 (JA__, __, __).

In April 2010, while the NPRM was pending, this Court handed down
Comcast. FCC officials described Comcast’s “undermining” of the Commission’s
authority as “untenable,” creating a “serious problem that must be solved” before
the rules could be adopted. J. Genachowski, The Third Way: A Narrowly Tailored
Broadband Framework, 2010 WL 1840578, at *3-4 (May 6, 2010) (JA__); see id.
at *3 (JA__) (stating that Comcast “cast serious doubt on the particular legal theory
the Commission used ... to justify its ... role with respect to broadband Internet
communications”); A. Schlick, A Third-Way Legal Framework for Addressing the
Comcast Dilemma, 2010 WL 1840579 (May 6, 2010) (JA__).3

3
The FCC then initiated a proceeding to reclassify broadband Internet access
as a “telecommunications service” subject to Title II because “Comcast appears to
undermine prior understandings about the Commission’s” authority to regulate
broadband. Framework for Broadband Internet Service, Notice of Inquiry, 25
F.C.C.R. 7866, 7866-67 (¶¶ 1-2) (2010) (“NOI”) (JA__-__). Numerous parties
objected to reclassification because, inter alia, it would be unlawful. See, e.g.,
7

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Comcast and the general question whether to regulate the Internet have
attracted substantial attention from Congress. Since 2006, at least eleven pieces of
“net neutrality” legislation were introduced and debated in Congress. E.g., Internet
Non-Discrimination Act of 2006, S. 2360, 109th Cong. (2006); Internet Freedom,
Broadband Promotion, and Consumer Protection Act of 2011, S. 74, 112th Cong.
(2011). None was enacted.

The Order.

On December 21, 2010, the FCC adopted, by a vote of 3-2,
rules governing “broadband Internet access service.” Order ¶ 44 (JA__). The
Order recognized that the Internet “is a level playing field” that allows consumers
to “make their own choices about what applications and services to use” and “to
decide what content they want to access, create, or share.” Id. ¶ 3 (JA__).
Nevertheless, the Commission adopted “prophylactic rules” to resolve the
“significant uncertainty” created by Comcast. Id. ¶¶ 11, 42 (JA__, __). The Order
asserted that “broadband providers may have economic incentives to block or
otherwise disadvantage” edge providers, id. ¶ 21 (JA__), but identified only four
isolated, anecdotal incidents of such supposed conduct, id. ¶ 35 (JA__).

The
Order’s core requirement is that broadband providers carry the Internet
traffic of all edge providers, or specified classes of such providers, free of charge.

Verizon Comments at 28-99, Docket No. 10-127 (July 15, 2010) (JA__-__). There
has been no further action on the NOI.
8

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 39 of 116
This duty arises out of the “no blocking” rule and the express prohibition on
charging edge providers to transmit their traffic. Specifically, the no blocking rule
prohibits fixed broadband providers from blocking any “lawful content,
applications, services, or non-harmful devices,” id. at 88 § 8.5 (JA__); see id. ¶ 63
(JA__)—i.e., “all traffic transmitted to or from end users of a broadband Internet
access service,” id. ¶ 64 (JA__). Similarly, mobile providers cannot block access
to (and thus must transmit all traffic to and from) “lawful websites.” Id. at 88 § 8.5
(JA__); see id. ¶ 99 (JA__). In addition, mobile providers are prohibited from
blocking “applications that compete with the provider’s voice and video telephony
services.” Id. The FCC paired this rule with an explicit ban on charging “edge
providers ... for delivering traffic to or carrying traffic from broadband provider’s
end-user customers,” thus foreclosing a wide range of two-sided pricing models.
Id. ¶ 67 (JA__); see id. ¶¶ 23-24, 99 (JA__-__, __). It also expressly reserved the
right to regulate the prices that broadband providers charge their own end-users.
Id. ¶ 122 n.381 (JA__).

The FCC adopted a second rule prohibiting fixed broadband providers from
“unreasonably discriminat[ing] in transmitting lawful network traffic.” Id. at 88
§ 8.7 (JA__); see id. ¶¶ 68-79 (JA__-__). The Order effectively banned certain
potential commercial services—including any “commercial arrangement between a
broadband provider and a third party to directly or indirectly favor some traffic
9

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over other traffic”—by stating that “it is unlikely” that such services “would satisfy
the ‘no unreasonable discrimination’ standard.” Id. ¶ 76 (JA__). “The practice of
a broadband Internet access service provider prioritizing its own content,
applications, or services” is also effectively prohibited. Id. The no blocking and
nondiscrimination rules are subject to “reasonable network management.” Id. at 89
§ 8.11(d) (JA__).

Finally, the FCC established a “transparency” rule requiring all broadband
providers to “publicly disclose” their network practices, performance
characteristics, and commercial terms. Id. at 88 § 8.3 (JA__); id. ¶¶ 53-61, 97-98
(JA__-__, __-__).

As for statutory authority, the FCC concluded that Congress “expressed its
instructions [to the Commission] in multiple sections [of the communications laws]
which, viewed as a whole, provide broad authority” to adopt the rules. Id. ¶ 116
(JA__). The FCC referenced approximately 24 disparate provisions scattered
throughout the Act, but never explained what type of authority any particular
provision provided. Id. ¶¶ 115-37, 170 (JA__-__, __). In again relying on Section
706(a), the FCC maintained that its “understanding” of that provision as “a specific
delegation of legislative authority” was “consistent with” the Advanced Services
Order. Id. ¶¶ 119, 122 (JA__, __). The Order acknowledged that its claimed
authority could reach other Internet providers, including providers of “specialized
10

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services” and “Internet backbone services.” Id. ¶¶ 47, 112-14 (JA__, __-__).
Although the Commission chose not to regulate such providers, it indicated that it
might do so in the future. Id.

Dissenting Opinions.

Two commissioners dissented. Commissioner
McDowell concluded that the Order imposed “sweeping new common carriage-
style obligations” on broadband Internet service, and that the Commission’s
“tortured logic” on statutory authority was “designed to circumvent the effect of
the D.C. Circuit’s Comcast decision.” Id. at 153, 168 (JA__, __). Commissioner
Baker wrote that the FCC had “given itself plenary authority to regulate the
Internet.” Id. at 191 (JA__).

SUMMARY OF ARGUMENT


The rules adopted in the Order are unlawful for several independent reasons.
First, the Act expressly forbids the FCC from applying common-carrier regulation
to broadband Internet access, 47 U.S.C. §§ 153(51), 332(c)(2), but the rules do just
that. They subject broadband providers to quintessential common-carrier duties by
compelling them to carry the Internet traffic of all comers, and to do so at a
uniform, nondiscriminatory price of zero. Accordingly, the rules directly conflict
with the Act and thus cannot stand. FCC v. Midwest Video Corp., 440 U.S. 689
(1979) (“Midwest Video II”).
11

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Second, the FCC otherwise lacks statutory authority for the rules. The
Commission points to a hodgepodge of provisions to support its claim of “broad
authority,” Order ¶ 116 (JA__), but does not and could not suggest that any of
these provisions expressly authorizes these rules. And it defies “common sense”
that Congress would have empowered the agency to “regulate an industry
constituting a significant portion of the American economy … in so cryptic a
fashion.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 159-60
(2000) (citation omitted). Nor do these provisions provide any basis for asserting
ancillary authority. Regardless, the FCC has not shown that the rules are necessary
to achieve any statutorily-mandated task.

Third, the rules are unconstitutional. Broadband networks are the modern-
day microphone by which their owners engage in First Amendment speech. The
FCC thus must identify an actual problem, and narrowly tailor its solution to solve
that problem. The FCC’s “prophylactic” rules cannot pass that test. The Fifth
Amendment likewise protects broadband network owners from government
compulsion to turn over their private property for use by others without
compensation, especially in light of their multi-billion-dollar investment-backed
expectations.

Finally, the rules are arbitrary and capricious. While the record is replete
with substantial evidence (including analyses by a Nobel-prize winning economist
12

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 43 of 116
and former Chief Economists for the FCC and Justice Department) that the rules
would deter network investment, it is devoid of evidence of any problem sufficient
to justify these extensive regulations. The FCC also arbitrarily applied its rules to
a single class of service providers even though myriad others in the Internet
economy can engage in “gatekeeping.”

STANDING


Appellants have standing because they participated in the proceedings
below, are providers of broadband Internet access services subject to the rules,
hold wireless spectrum licenses modified by the Order, and are otherwise
adversely affected and substantially aggrieved by the Order.

ARGUMENT

STANDARD

OF

REVIEW


The question whether Congress delegated the FCC authority to regulate
broadband Internet access is reviewed de novo. Am. Library Ass’n v. FCC, 406
F.3d 689, 699 (D.C. Cir. 2005); MPAA v. FCC, 309 F.3d 796, 801 (D.C. Cir.
2002). Moreover, the “explicit statutory limitations on Commission authority” in
the bans on common-carrier regulation “take[] the case outside of any area of
deference to agency interpretation.” NARUC v. FCC, 533 F.2d 601, 618 (D.C. Cir.
13

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 44 of 116
1976) (“NARUC II”).4 And where, as here, “an agency’s assertion of power into
new arenas is under attack, … courts should perform a close and searching analysis
of congressional intent.” ACLU v. FCC, 823 F.2d 1554, 1567 n.32 (D.C. Cir.
1987).
The
constitutional
challenge is subject to de novo review. C-SPAN v. FCC,
545 F.3d 1051, 1054 (D.C. Cir. 2008). Further, “the constitutional avoidance
canon of statutory interpretation trumps Chevron deference.” Univ. of Great Falls
v. NLRB, 278 F.3d 1335, 1340-41 (D.C. Cir. 2002). The remaining challenges are
reviewed under the “arbitrary and capricious” standard. Lead Indus. Ass’n v. EPA,
647 F.2d 1130, 1145 (D.C. Cir. 1980).

I.

THE RULES DIRECTLY CONFLICT WITH THE
COMMUNICATIONS ACT.

An agency exceeds its statutory authority by issuing rules that contravene its
governing statute. 5 U.S.C. § 706(2); Midwest Video II, 440 U.S. at 706. The
Order exceeds the FCC’s authority because it subjects broadband Internet access
service—which is both an information and private mobile service—to common-
carriage regulation, a result expressly prohibited by the Act. It does so by
requiring broadband providers to carry the traffic of all edge providers (or classes

4
Contrary to the FCC’s contention, Order ¶ 79 n.248 (JA__), it does not
enjoy “any significant discretion in determining who is a common carrier.”
NARUC v. FCC, 525 F.2d 630, 644 (D.C. Cir. 1976) (“NARUC I”).
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thereof) at a common, nondiscriminatory rate of zero. This suffices to invalidate
the Order. MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994).

1. Broadband Internet access service is statutorily exempt from common-
carrier regulation. The Act establishes a regulatory dichotomy between
“telecommunications service” and “information service,” see supra p. 4, and
expressly states that a “telecommunications carrier shall be treated as a common
carrier ... only to the extent that it is engaged in providing telecommunications
services,” 47 U.S.C. § 153(51) (emphasis added). The Act thus “regulates
telecommunications carriers, but not information-service providers, as common
carriers.” Brand X, 545 U.S. at 975. And Section 332(c)(2) expressly precludes
regulation of a private mobile service provider “as a common carrier for any
purpose.” 47 U.S.C. § 332(c)(2) (emphasis added).

The Commission has classified wireline and wireless broadband Internet
access services as “information services,” and declared that mobile wireless
Internet access is a “private mobile service.” See supra pp. 4-5. Accordingly, the
Commission may not regulate broadband providers as common carriers.

2. The Order does precisely what the Act prohibits. Under Midwest Video
II, this cannot stand. There, the Supreme Court struck down the Commission’s
“public access” rules as contrary to “the command of § 3(h) of the Act that ‘a
person engaged in ... broadcasting shall not ... be deemed a common carrier’”
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because the rules “relegated cable systems, pro tanto, to common-carrier status.”
440 U.S. at 700-01 (quoting 47 U.S.C. § 153(h)). “Under the [public access] rules,
cable systems [were] required to hold out dedicated channels on a first-come,
nondiscriminatory basis,” “[a]nd the rules delimit[ed] what operators [could]
charge.” Id. at 701-02. The rules thus bore the hallmark of common carrier status:
“a duty to hold out facilities indifferently for public use.” Id. at 707 n.16; see id. at
701 (“A common carrier does not ‘make individualized decisions, in particular
cases, whether and on what terms to deal.’” (citation omitted)).

So too here. The FCC’s rules constitute classic common-carrier obligations
because they compel broadband providers to carry the Internet traffic of all comers,
and at a uniform, nondiscriminatory price of zero. The no blocking rule denies
broadband providers discretion in deciding which traffic from so-called edge
providers to carry, except for unlawful material. See Order at 88 § 8.5 (JA__). It
expressly forces fixed broadband providers to carry “all traffic transmitted to or
from end users of a broadband Internet access service,” id. ¶ 64 (JA__), so that
edge providers can reach “all U.S. end users,” id. ¶ 30 (JA__). Similarly, mobile
broadband providers must carry all traffic to or from “any lawful website,” id.
¶ 100 (JA__), and guarantee access to “any and all applications that compete with”
their “voice or video telephony services,” id. ¶ 99 (JA__). The Order thus compels
broadband providers to “hold out” their networks for use by all, thereby depriving
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them “of all discretion regarding who may exploit their [networks] and what may
be transmitted over such [networks].” Midwest Video II, 440 U.S. at 693, 701-02.
Further,
the
Order denies broadband providers discretion over carriage terms
by setting a uniform price of zero; it forbids them from imposing any “charge
[upon] edge providers ... for delivering traffic to or carrying traffic from the
broadband provider’s end-user customers.” Order ¶ 67 (JA__); see id. ¶¶ 23-24,
99 (JA__-__, __). The Order thereby limits the ability of providers to employ two-
sided pricing models in which edge providers pay for some costs of the network
(thereby pushing more costs onto consumers).5 It also effectively prohibits price
discrimination among edge providers because all must pay the identical rate. In
essence, the Order replicates the Act’s common-carrier provisions, determining
that the only “reasonable” price for the transmission of edge providers’ traffic is
zero, cf. 47 U.S.C. § 201(b), and that any deviation from that price would be
unlawful, 47 U.S.C. § 202(a). Accordingly, the rules exert pervasive control over
“the price and quality of access to end users,” Order ¶ 21 (JA__), just as the rules
in Midwest Video II “circumscribe[d] what operators [could] charge for privileges
of access and use of facilities and equipment” to reach end-users, 440 U.S. at 694.
And “pervasive rate regulation to ensure that the company provides the service at

5
It is no answer to say that providers can charge end-users at prices that the
competitive market will bear, Order ¶ 79 (JA__), because the Order still imposes
common-carriage price regulation by mandating a price of zero for edge providers.
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‘reasonable charges’” is a prime “example[] of regulations that apply to Title II
common carrier services.” Comcast, 600 F.3d at 655.

Although the foregoing features of the Order constitute quintessential
common-carrier regulation, the explicit nondiscrimination mandate is the icing on
the cake. That rule provides that fixed broadband providers “shall not
unreasonably discriminate in transmitting lawful network traffic,” Order at 88
§ 8.7 (JA__), and presumptively prohibits providers from “charging edge
providers” for “prioritized access to end users,” id. ¶ 24 (JA__), or any “additional
fees for faster delivery of [certain] content,” id. ¶ 128 (JA__); see id. ¶ 76 (JA__).
This mandate regulates provider practices by governing their transmission of
traffic and, like the no blocking rule, effectively prohibits price discrimination.

3. The Order asserts that the statutory bans on common-carrier treatment
are “not relevant” because broadband providers can still make “individualized
decisions” with respect to all potential “end users” of their services. Id. ¶ 79
(JA__). The Order’s myopic focus on retail “end users” is misplaced.

“Neither the Commission nor the courts” have construed common carriage
as “limited to end-users of a service.” VITELCO v. FCC, 198 F.3d 921, 930 (D.C.
Cir. 1999) (quotation and alteration omitted); see Iowa Telecomms. Servs. v. Iowa
Utils. Bd., 563 F.3d 743, 747, 750 (8th Cir. 2009). The FCC has “acknowledged
that common carriers’ customers need not be ‘end users,’” VITELCO, 198 F.3d at
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929 (citation omitted), and the Act makes clear that service offered to “classes of
users” qualifies as common-carrier service, 47 U.S.C. § 153(53). For example, the
FCC has long held that “[c]ommon carrier services include … exchange access
service … offered primarily to other carriers” so they can reach end-users.
Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the
Communications Act of 1934, 11 F.C.C.R. 21905, 22033 (¶ 265) (1996). And
although the Order assumes a bright line between end-users and edge providers
here, it elsewhere explains that “[t]hese terms are not mutually exclusive.” Order
¶ 4 n.2 (JA__).

Indeed, the rules invalidated in Midwest Video II did not concern providers’
relationships with end-users. Rather, they required cable operators to provide
channels for “third parties”—“public, educational, local governmental, and leased-
access users … who wish to communicate by the cable medium” with end-users.
440 U.S. at 691, 693, 700. So too here. The primary means by which the Order
seeks to achieve “openness” is to regulate broadband providers’ relationships with
edge providers “who wish to communicate by the [Internet] medium” with end-
users. Id. at 700.

The FCC tacitly recognizes this, maintaining that the rules do not amount to
common-carrier obligations as to edge providers because they do not require
broadband providers to “‘carry for all [edge providers] indifferently.’” Order ¶ 79
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n.251 (JA__) (alteration in original) (stating that providers may, “under certain
circumstances,” engage in “reasonable network management,” “reasonable
discrimination,” and “prioritize” some traffic). But traditional common-carrier
nondiscrimination standards have always allowed “reasonable” discrimination.
Competitive Telecomms. Ass’n v. FCC, 998 F.2d 1058, 1064 (D.C. Cir. 1993). The
Order does nothing more—it simply recognizes that there are “beneficial forms of
differential treatment,” such as “reasonable network management.” Order ¶ 69
(JA__). Moreover, a provider’s ability to perform “reasonable network
management” merely preserves a common carrier’s traditional right to “turn[]
away [business] either because it is not of the type normally accepted or because
the carrier’s capacity has been exhausted.” NARUC I, 525 F.2d at 424. Even if
providers potentially could “prioritize traffic,” that likewise “does not detract from
... common carrier status” because the “general commandment of indifferent
service [may be] modified by the ... acceptance … of certain types of priority
treatment.” NARUC II, 533 F.2d at 609.

4. Even if the rules do not amount to full-scale common-carrier regulation,
they at a minimum replicate key aspects of Title II by mandating carriage,
regulating the terms thereof, and regulating carrier practices. Title II grants
authority to require an entity to offer a service to all comers and to ban
“discrimination” in “charges” and “practices.” 47 U.S.C. §§ 201, 202(a); see also
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47 U.S.C. §§ 332(c)(1)(A) (authorizing common-carrier regulation of commercial
wireless services), 335(b)(3) (requiring satellite providers to sell capacity “upon
reasonable prices, terms, and conditions, as determined by the Commission”). But
Congress conferred no comparable power in the provisions of the Act the FCC
cites as supporting the rules. See infra Part II. Where Congress has chosen to use
language in certain provisions but not others, that choice must be respected.
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002). The Act thus forbids
importing the basic terms of Title II into parts of the Act where they do not appear.

II.

THE FCC LACKS STATUTORY AUTHORITY FOR THE RULES.

Apart from the violation of the common-carrier prohibitions, the Order fails
to identify any statutory authority for the rules. “The FCC, like other federal
agencies, literally has no power to act ... unless and until Congress confers power
upon it.” Am. Library Ass’n, 406 F.3d at 708 (quotation and citation omitted).
None of the scattered, unrelated provisions of the Act cited in the Order grants the
FCC authority to so broadly regulate a sector of the economy as significant as the
Internet. The Commission’s sweeping theory would allow it not only to assert
plenary authority over broadband providers, including specialized services and
prices for their end-user customers, but to regulate all sectors of the Internet
economy without limit.
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1. As an initial matter, an agency must clearly articulate the basis for its
authority. SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947). But the FCC has
previously admitted that it “has no express statutory authority” to regulate the
practices of broadband providers. Comcast, 600 F.3d at 644. Thus, rather than
rely on any clear legal foundation for the rules, the Order takes a muddled,
scattershot approach to the issue. Order ¶¶ 115-37 (JA__-__). The Order lumps
together approximately 24 different statutory provisions into one undifferentiated
mass, theorizing that Congress delegated “broad authority” for the rules “in
multiple sections” of the communications laws “viewed as a whole.” Id. ¶ 116
(JA__). The agency’s failure to articulate any specific source of authority is
enough to invalidate the Order. Chenery, 332 U.S. at 196-97.
2. That failure demonstrates the fundamental problem with the Order
there is no statutory authority for the rules. In evaluating whether Congress
empowered the FCC to regulate the Internet—“arguably the most important
innovation in communications in a generation,” Comcast, 600 F.3d at 661 (citation
omitted)—a reviewing court “must be guided to a degree by common sense as to
the manner in which Congress is likely to delegate a policy decision of such
economic and political magnitude to an administrative agency,” Brown &
Williamson, 529 U.S. at 133 (citation omitted).
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Here, it is implausible that Congress would have empowered the agency to
“regulate an industry constituting a significant portion of the American economy…
in so cryptic a fashion” as cobbling together so many disparate statutory
provisions. Id. at 159-60. That the agency cannot clearly identify a delegation of
authority over this revolutionary mode of communication is powerful evidence that
there is none—Congress does not, after all, “hide elephants in mouseholes.”
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). Indeed, to the extent
Congress addressed regulation of the Internet, it provided that it should be
“unfettered by Federal or State regulation.” 47 U.S.C. § 230(b)(2).
Furthermore, the question whether to abandon the established “hands-off”
policy for the Internet and enact restrictions on broadband providers (or to give the
Commission authority to do so) has been the subject of extensive debate and
Congressional attention. See supra p. 8. That debate—and Congress’s subsequent
failure to enact legislation—confirms that the Commission lacks authority to
promulgate these rules. Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (rejecting
claim of delegated authority over issue that was “the subject of an ‘earnest and
profound debate’ across the country”); Brown & Williamson, 529 U.S. at 160
(deferring to “Congress’ consistent judgment to deny the FDA [its asserted]
power”).
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3. Nor can the FCC rely on authority “‘reasonably ancillary to the
Commission’s effective performance of its statutorily mandated responsibilities.’”
Am. Library Ass’n, 406 F.3d at 692. Although the Supreme Court recognized the
concept of “ancillary authority” in cases such as United States v. Southwestern
Cable Co., 392 U.S. 157 (1968), the Court later observed that it “‘strain[s] the
outer limits’” of administrative law, Midwest Video II, 440 U.S. at 708 (citation
omitted). The doctrine is also inconsistent with recent precedent.6
Accordingly, this Court has taken a “very cautious approach in deciding
whether the Commission [has] validly invoked its ancillary jurisdiction,” Am.
Library Ass’n, 406 F.3d at 702, explaining that Congress has not given the FCC a
roving, do-good mandate over communication by wire or radio, Comcast, 600 F.3d
at 661. The FCC must justify the exercise of ancillary authority by: (1) identifying
a substantive statutory provision to which the proposed action is ancillary, and (2)
showing, with “substantial support in the record,” that (3) the action is “necessary”
for the effective performance of the Commission’s “statutorily mandated

6
See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984) (limiting agencies to gap-filling role under direct delegations of authority);
Brown & Williamson, 529 U.S. at 159-60 (inquiring whether Congress
affirmatively delegated agency authority); see also Transcript of Oral Argument at
20, Comcast Corp. v. FCC (No. 08-1291) (Randolph, J.) (noting inconsistency
with contemporary statutory construction).

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responsibilities” under that provision. Id. at 646, 654; NARUC II, 533 F.2d at 614-
15.
The FCC does not seriously attempt to satisfy this test. The Order never
explains which of the many cited provisions provide the basis for ancillary
authority, and studiously avoids even using that term. Further, except for the
transparency rule, the Order does not identify which provisions support the
exercise of ancillary authority as to any particular rule. The Commission’s
approach thus violates Comcast’s instruction that “the permissibility of each new
exercise of ancillary authority” must be justified “on its own terms” and that the
critical point is “whether the particular regulation at issue” satisfies the ancillary
authority test. 600 F.3d at 650; see NARUC II, 533 F.2d at 612.
The Order itself demonstrates the Commission’s failure to justify the
exercise of ancillary authority. Its stated purpose is to preserve the “openness” of
“the Internet,” Order ¶ 43 (JA__), not to regulate the Internet as a means to
accomplish some other, statutorily-mandated end, id. at 88 § 8.1 (JA__) (“The
purpose of this Part is to preserve the Internet as an open platform[.]”). Thus, any
exercise of authority here is not “really incidental to” the regulation of a service
under “specifically delegated powers,” NARUC II, 533 F.2d at 612, or “derivative
[in] nature,” Comcast, 600 F.3d at 654, but an assertion of power over the Internet
for the sake of regulating the Internet itself.
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In any event, this Court has already made clear that “rate regulation” of
Internet services would exceed the outer boundaries of the FCC’s ancillary
authority. Comcast, 600 F.3d at 655. The Order imposes just such regulation by
prohibiting providers from charging edge providers for delivering traffic and
limiting the use of two-sided pricing models to recover network costs. See supra
pp. 17-18. If the FCC can “subject … Internet service to pervasive rate
regulation,” there is “no reason why the Commission would have to stop there,”
and there are “few examples of regulations that apply to Title II common carrier
services ... that the Commission ... would be unable to impose upon Internet
service providers.” Comcast, 600 F.3d at 655.
4. Whether the Order is premised purely on a theory of ancillary authority,
as the Commission’s position in Comcast seems to require, or some other theory, it
suffers from an additional fatal flaw: the Commission’s assertion of regulatory
power “appears to have no limiting principle.” Order at 162 (JA__) (McDowell
Statement). Comcast, however, made clear that the FCC may not claim “plenary
authority over” broadband providers. 600 F.3d at 654.
Yet that is exactly what the Order does. It asserts authority to regulate
broadband providers based upon nothing other than the agency’s notions of
“economic and civic benefits” associated with the Internet. Order ¶ 4 (JA__); see
e.g., id. ¶ 3 (JA__) (citing enhancement of “health, education, and the
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environment”). As the Order itself presumes, this theory could apply not just to
broadband service, but to all aspects of a broadband provider’s business, including
specialized services and even retail customer prices. See supra pp. 10-11. Indeed,
the theory would extend to all sectors of the Internet, from website, application,
search engine, and content providers to Internet backbone companies. When the
FCC “feels compelled to explicitly ‘decline to apply [its] rules directly to coffee
shops, bookstores, [and] airlines,’ [that only] illustrates the broad scope of these
rules, and the lack of any ascertainable outer limits to [its] claimed authority.”
Order at 192 (JA__) (Baker Statement) (quoting Order ¶ 52).
In sum, the agency’s position “if accepted … would virtually free the
Commission from its congressional tether.” Comcast, 600 F.3d at 655. Indeed,
such acceptance would risk ratifying a naked, unconstitutional delegation of
legislative authority. See Whitman, 531 U.S. at 472.
5. In any event, no provision of the Act cited in the Order can serve as a
source of substantive regulatory power for the rules.

Section 230.

The Order first cites Section 230, Order ¶ 116 (JA__), which
provides that “the policy of the United States” is that the Internet should be
“unfettered by Federal or State regulation.” 47 U.S.C. § 230(b)(2). This Court
rejected the FCC’s reliance on this provision in Comcast, explaining that it
contains mere “statements of policy ... not delegations of regulatory authority.”
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600 F.3d at 654. Accordingly, Section 230 provides no authority for the rules and
instead establishes a national policy directly counter to them.

Section 706.

Next, the Order cites Section 706(a), Order ¶¶ 117-22
(JA__-__), which provides that the FCC and state regulatory commissions “shall
encourage” broadband deployment “by utilizing … price cap regulation, regulatory
forbearance, measures that promote competition in the local telecommunications
market, or other regulating methods that remove barriers to infrastructure
investment.” 47 U.S.C. § 1302(a). As an initial matter, it is implausible to read
Section 706(a), which applies to state regulatory commissions, as a grant of federal
regulatory power. Regardless, the FCC does not claim that Section 706(a)
expressly authorizes these rules. Nor, in light of the provision’s text, could it: the
rules govern the transmission of Internet traffic, not network deployment.
Instead, the FCC attempts a triple-cushion shot to somehow tie the rules to
the statute: (1) the “openness” of the Internet enables the creation of “new content,
applications, services, and devices”; (2) those “new uses of the network” will “lead
to increased end-user demand for broadband”; and (3) that demand will “drive
network improvements.” Order ¶ 14 (JA__). This theory fails.
Section 706(a) directs the Commission to encourage broadband deployment,
but only “by utilizing” regulatory authority provided elsewhere in the Act. If
Section 706(a) were a standalone grant of authority, Congress would not have
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directed the Commission to employ specifically-enumerated “regulating methods”
to achieve the stated goal. 47 U.S.C. § 1302(a). Thus, Section 706(a) “delegate[s]
no regulatory authority” to the FCC but “merely … support[s]” agency action that
is otherwise “clearly within its statutory authority under other sections of the Act.”
Comcast, 600 F.3d at 652, 659.7 The Commission has long understood that
“section 706 does not constitute an independent grant of authority” but “directs the
Commission to use the authority granted in other provisions.” Advanced Services
Order, 13 F.C.C.R. at 24045, 24047 (¶¶ 69, 77). The Order even recognizes that
Section 706(a) permits the Commission to act only “by any of the means listed in
the provision”—viz., by “using its existing rulemaking, forbearance and
adjudicatory powers.” Order ¶ 119 (JA__).
Consequently, each of the specific regulatory methods enumerated in
Section 706(a) is based on separate statutory authority, with its own limitations that
the FCC must honor. Forbearance, as the Advanced Services Order recognized, is
authorized by and thus must comply with Section 10 of the Act. 47 U.S.C. § 160.
The FCC concedes that Section 706(a) gives it no authority to forbear “over and
above what it otherwise possessed” and does not allow it to “trump” any limits on

7
Comcast stated that Section 706(a) “could at least arguably be read to
delegate regulatory authority to the Commission,” explaining that it “does contain
a direct mandate—the Commission ‘shall encourage’” broadband deployment.
600 F.3d at 658. But the provision makes clear how the Commission can do so—
viz., “by utilizing” other, specifically enumerated powers.
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its authority under other provisions of the Act. Order ¶ 119 (JA__). “Price cap
regulation” has long been authorized under Title II. 47 U.S.C. § 201(b); Policy &
Rules Concerning Rates for Dominant Carriers, 4 F.C.C.R. 2873, 3295-307
(¶¶ 881-95) (1989). Part II of Title II provides the authority and substantive
boundaries for “measures that promote competition in the local
telecommunications market,” 47 U.S.C. §§ 251-61, and again Section 706(a) does
not allow the FCC to “trump” those boundaries, Order ¶ 119 (JA__). Finally, just
as with the preceding items, the Commission must rely on an independent source
of authority to invoke the catch-all phrase covering any “other regulating methods
that remove barriers to investment.” 47 U.S.C. § 1302(a) (emphasis added); see
Comcast, 600 F.3d at 659 (“‘[S]ection 706(a) does not constitute an independent
grant of forbearance authority or of authority to employ other regulating
methods.’” (quoting Advanced Services Order, 13 F.C.C.R. at 24044 (¶ 69))
(emphasis in original)). This clause, standing alone, does not grant the FCC any
authority to adopt new rules (much less unfettered authority for ones that do not
“remove” a “barrier” to infrastructure investment but instead undermine it). Thus,
the Order’s reliance on Section 706(a) begs the question of which underlying
authority permits these rules.
Moreover, the Commission’s daisy chain of speculative inferences that the
rules will encourage deployment is contradicted by the record and common sense:
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regulations that require providers to carry all traffic and prohibit compensation
from edge providers for carriage will have precisely the opposite effect, as world-
renowned economists explained below. See supra p. 7. In any case, the
Commission cannot exponentially expand its authority under the guise of making a
predictive judgment about the effect of the rules on deployment.
Finally, if the FCC can justify these rules based on a series of conjectural
links to broadband deployment, there is no stopping point to the authority it could
assert over the Internet.8 Indeed, since the Commission’s theory is premised on the
claim that creation of additional content, applications, and services will lead to
greater deployment, it necessarily would allow regulation of edge providers
(including social media), as well as all other Internet service providers such as
backbone companies and content delivery networks (including their prices).
Tellingly, the Commission does not disclaim authority to engage in such far-
reaching regulation, but rather is forced to repeatedly clarify that its current rules
do not extend to these sectors of the Internet as a matter of policy. See Order ¶¶ 47
(JA__), 50 (JA__), 52 (JA__), 102 (JA__), 112-14 (JA__-__), 122 n.381 (JA__).

8
The Commission points to its subject matter jurisdiction over
“communication by wire and radio” as a restraint on its Section 706(a) powers,
Order ¶ 121 (JA__), but that conflates the threshold jurisdictional question with
substantive delegated authority.
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In any event, the FCC remains “bound by its earlier conclusion that Section
706 grants no regulatory authority” because it has not “questioned, let alone,
overruled” that determination. Comcast, 600 F.3d at 659. The Commission
essentially ignored Comcast and repeated the view that construing Section 706(a)
to provide independent authority is “consistent with” the Advanced Services Order,
Order ¶ 119 (JA__), stating in passing that “[t]o the extent the Advanced Services
Order can be construed as having read Section 706(a) differently, we reject that
reading of the statute,” id. ¶ 119 n.370 (JA__). But Comcast already “construed”
the Advanced Services Order as holding that the statute confers no stand-alone
power. The FCC did not overrule the Advanced Services Order but simply sought
to avoid its clear meaning, as definitively interpreted by this Court.
Regardless, the FCC’s action, admittedly aimed at manufacturing legal
authority post-Comcast, was not grounded in “neutral principles and a reasoned
explanation.” FCC v. Fox Television Stations, 129 S. Ct. 1800, 1823 (2009)
(Kennedy, J., concurring). The Order makes clear that its legal conclusions
regarding Section 706(a) were reverse-engineered to “restore” authority that the
Commission believes it rightly possessed “for decades before the Comcast
decision,” Order ¶ 122 (JA__), and its footnote “rejection” of its prior reading of
Section 706(a) was entirely perfunctory.
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The Order also adverts to Section 706(b) as providing “additional authority”
for the rules. Id. ¶ 123 (JA__). Section 706(b) states that the FCC shall take
“action to accelerate deployment” of broadband to “geographical areas that are not
served by any provider of” Internet access service. 47 U.S.C. § 1302(b)-(c). Even
if Section 706(b) delegates substantive regulatory power, the rules exceed its scope
because they reach beyond any particular “geographical areas that are not served”
by any broadband provider and apply throughout the country. Section 706(b)
suffers from the same basic flaws as Section 706(a) as a predicate for ancillary
authority—the lack of any showing that the rules are necessary to the execution of
duties under Section 706(b). Further, the “finding” that purportedly triggered
Section 706(b), Order ¶ 123 n.384 (JA__), arbitrarily contravened five prior
agency determinations of reasonable and timely deployment concluding, most
recently, that 95% of American households have broadband access, see id. at 158-
59 (JA__-__) (McDowell Statement) (citing Sixth Broadband Deployment Report,
25 F.C.C.R. 9556 (2010)). The FCC certainly marshaled no record evidence that
regulating broadband Internet access providers would “accelerate deployment” of
broadband capability.

Title II.

Next, the Order relies upon Sections 201(b) and 251(a)(1), Order
¶¶ 125-26 (JA__, __), even though it does not and cannot claim express authority
under these provisions. Section 201(b) provides the FCC with authority to regulate
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common-carrier rates, 47 U.S.C. § 201(b), and Section 251(a)(1) imposes a duty on
each “telecommunications carrier” to “interconnect” with other
telecommunications carriers, 47 U.S.C. § 251(a)(1). But broadband Internet access
service providers do not provide telecommunications service and are not
telecommunications carriers.
The provisions cannot support ancillary authority either. There is no
evidence—much less substantial evidence—that the rules are necessary to ensure
the effective performance of duties under Section 201(b). The FCC can directly
address any concerns about unreasonable common-carrier rates by regulating such
rates under Section 201(b), rather than indirectly doing so by regulating broadband
providers. Further, there is no record validation of the FCC’s asserted concerns
about VoIP blocking. The only evidence remotely bearing on VoIP is the Madison
River example. Order ¶ 35 (JA__). But that was a dispute between a VoIP
provider and a traditional telephone company over intercarrier compensation; it did
not involve any broadband provider. Further, it was resolved by consent decree
without any finding of wrongdoing, and the FCC has now resolved the
compensation issue and requires traditional telephone companies to deliver VoIP
traffic.9

9
Connect America Fund, 26 F.C.C.R. 17663, 18002-28 (¶¶ 933-71) (2011);
Time Warner Cable Request for Declaratory Ruling, 22 F.C.C.R. 3513 (WCB
2007).
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Moreover, the rules sweep too broadly to be plausibly linked to any
responsibility under Title II. Although the Commission posited a desire to prevent
providers of “traditional voice and video services” from discriminating against
Internet-based competitors, the rules cover “all types of Internet traffic.” Id. ¶ 48
(JA__); id. ¶ 100 (JA__) (mobile providers cannot block “any lawful website”). If
the FCC was truly concerned with protecting on-line voice and video services, it
could have narrowed its rules to apply only to such services. The Order rejects
that option as undesirable policy. Id. ¶ 124 (JA__). The Commission’s policy
views cannot expand its authority.

Finally, there is no evidence that the rules are necessary to the effective
performance of the FCC’s responsibility under Section 251(a)(1) to ensure
interconnection among networks that provide “telecommunications services.”
Those networks are already interconnected, Verizon Comments at 102-03
(JA__-__), and the FCC does not claim otherwise. Accordingly, there is not a
shred of evidence that any “traditional telephone customer” has been unable to
enjoy “the intended benefits of telecommunications interconnection under Section
251(a)(1).” Order ¶ 126 (JA__). Moreover, Section 251(a)(1) cannot be a source
of ancillary authority to protect VoIP providers from supposed blocking of calls by
a telecommunications carrier, as the Order hypothesizes; VoIP has not been
classified as a telecommunications service, and such blocking, by definition,
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therefore would not “interfere with interconnection between two
telecommunications carriers.” Id. (emphasis added). The Commission thus
effectively claims that it has ancillary authority to regulate a service over which it
has no authority (Internet access service) to protect another service the terms of
which it does not regulate (VoIP), based on unsupported claims that VoIP will
“contribute to the market discipline” of common-carrier rates. Id. ¶ 125 (JA__).

Title VI.

The Order next cites Sections 616 and 628, id. ¶¶ 129-32
(JA__- __), but again makes no assertion of express authority. Nor could it. These
provisions authorize regulation of only certain conduct by “cable operators” and/or
“multichannel video programming distributors” (“MVPDs”). 47 U.S.C. §§ 536,
548(b). Entities are considered cable operators or MVPDs subject to regulation
under Title VI only when they are providing “cable service” via a “cable system”
or making available a competing service that provides subscribers with “multiple
channels of video programming,” id. §§ 522(5), (13); see id. § 522(4), not when
they are providing other services such as broadband Internet access.
Accordingly, the Commission has found that “cable modem service”—the
broadband Internet access service offering of traditional cable operators who also
provide “cable service”—“is not … subject to Title VI” because it does not fall
within the statutory definition of a “cable service.” Cable Modem Order, 17
F.C.C.R. at 4838 (¶ 68); see id. at 4832-38 (¶¶ 60-68); see also Comcast, 600 F.3d
36

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at 649 (noting that classification of cable Internet service “as an ‘information
service’” “removed [it] from Title II and Title VI oversight”).

Sections 616 and 628 do not provide any ancillary authority here because the
FCC has not mustered substantial evidence that the rules are “necessary” for the
effective performance of any statutorily-mandated responsibility thereunder. The
FCC avers loosely that the rules “further our mandate under Section 628” because
“MVPDs that offer broadband service have the opportunity and incentive to
impede DBS providers and other competing MVPDs” from transmitting video
programming online. Order ¶¶ 130-31 (JA__-__). But the FCC can address
directly any such action by cable operators or MVPDs acting as such, and the
Order does not point to a single instance of an entity acting as a broadband
provider impeding an MVPD from delivering its services to consumers. And as
with Title II, the rules reach far more broadly than the particular online service
(here, video programming) that is the object of regulatory concern.

Title III.

The FCC next relies on its purported “public interest” authority
under Title III’s spectrum licensing provisions. Id. ¶¶ 133-35 (JA__-__). There is
no support for construing those provisions to authorize the rules.
In Title III, Congress established a federal licensing scheme over radio
services. FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 474 (1940); NBC v.
United States, 319 U.S. 190, 210-16 (1943). To implement this scheme, Congress
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vested the FCC with specific authority relating to issues such as preventing
interference and assigning classes of stations to particular frequency bands. See
generally 47 U.S.C. § 303.10 In exercising its Title III authority, the FCC is to
promote the “public interest, convenience, and necessity.” 47 U.S.C. § 316(a)(1).
But, as this Court explained, “[t]he FCC cannot act in the ‘public interest’ if the
agency does not otherwise have the authority to promulgate the regulations at
issue.” MPAA, 309 F.3d at 806.

Thus, the requirement to act in the public interest is “not to be interpreted as
setting up a standard so indefinite as to confer an unlimited power.” NBC, 319
U.S. at 216. Indeed, construing Title III to afford the FCC unbounded authority to
impose or modify conditions on spectrum licenses so long as they satisfied some
loose conception of the public interest would render the substantive grants of
authority in Title III mere surplusage. See Qi-Zhuo v. Meissner, 70 F.3d 136, 139
(D.C. Cir. 1995). Instead, a license condition or regulation must be tied to the
substantive grants of authority found elsewhere in Title III.
The
Order does not explain how the rules are tied to any such grant of
authority. Instead, it makes the cursory assertion that the FCC possessed authority
to adopt the rules because they “advance the public interest in innovation and

10
Congress’s grant of Title II authority over commercial mobile radio services
in Section 332(c)(1), see supra pp. 4, 21, confirms that authority akin to that
contained in Sections 201 and 202 does not otherwise exist in Title III.
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investment.” Order ¶ 134 (JA__). But that claim confuses the standard by which
the FCC must exercise its enumerated authority with the antecedent grant of such
authority, and has been squarely rejected by this Court. MPAA, 309 F.3d at 806.

Furthermore, the licensing provisions grant the FCC “no supervisory control
of the programs, of business management or of policy.” Sanders Bros., 309 U.S. at
475. Because the FCC lacks authority to “determine the validity of contracts
between licensees and others,” “the imposition of [licensing] conditions cannot
directly affect the applicant’s responsibilities to a third party dealing with the
applicant.” Regents of Univ. Sys. v. Carroll, 338 U.S. 586, 600, 602 (1950); see
Environmentel, LLC v. FCC, 661 F.3d 80, 85 (D.C. Cir. 2011). The Order reaches
well beyond the outer limits of Title III because the rules directly “regulate the
business” of wireless broadband providers, Sanders Bros., 309 U.S. at 475, by
controlling commercial arrangements for the carriage of Internet traffic, see Order
¶ 23 (JA__) (discussing “contract” between broadband providers and edge
providers prohibited by the rules).
None of the particular provisions of Title III cited by the Order confers the
necessary authority. The Commission points to Section 316, Order ¶ 133 (JA__),
which states that “[a]ny station license or construction permit may be modified by
the Commission” under a “public interest” standard. 47 U.S.C. § 316(a)(1). The
use of this authority historically has been limited to technical license changes
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regarding interference and basic spectrum management. See, e.g., FCC v.
NBC(KOA), 319 U.S. 239 (1943); Western Broad. Co. v. FCC, 674 F.2d 44 (D.C.
Cir. 1982). The Order represents an unprecedented exercise of license-
modification authority because there is no such nexus to spectrum management. If
the Commission could issue any rules it deemed in the public interest and compel
licensees to comply with them simply by modifying their licenses, it is difficult to
imagine what sort of obligation the FCC would be unable to impose on wireless
licensees.
Whatever the outer limits of the FCC’s authority under Section 316, it is
clear that the agency’s license modification power does not encompass the ability
to “fundamental[ly] change” the license’s terms. Cmty. Television, Inc. v. FCC,
216 F.3d 1133, 1141 (D.C. Cir. 2000); see MCI, 512 U.S. at 228. The
“introduction of a whole new regime of regulation,” id. at 234—here, the issuance
of unprecedented rules regulating numerous aspects of wireless Internet service—
is a dramatic change to wireless licenses that cannot be sustained. And interpreting
Section 316 to permit the FCC to induce parties to spend billions of dollars in
spectrum auctions and then spring new restrictions on them that significantly limit
their ability to make productive use of purchased spectrum would go “beyond the
meaning that the statute can bear.” Id. at 231-32; U.S. AirWaves, Inc. v. FCC, 232
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F.3d 227, 235 (D.C. Cir. 2000) (“[A]n agency cannot, in fairness, radically change
the terms of an auction after the fact.”).11
Any claim that the cited Title III sections provide a basis for asserting
ancillary authority must also fail. The FCC suggests that the rules are needed to
ensure broadcasters can “provid[e] audio and video content on the Internet,” Order
¶ 128 (JA__), but this “is far from the kind of tight ancillary nexus” that courts
have required, id. at 165 (JA__) (McDowell Statement); see, e.g., Comcast, 600
F.3d at 659-60. Again, the FCC relies upon broadband providers’ alleged
“incentive and ability” to block or degrade broadcast content distributed over the
Internet, Order ¶ 128 (JA__), but there is no evidence of such misconduct,
particularly by wireless providers. Regardless, the FCC has not shown that its
ability to perform any Title III licensing responsibility is jeopardized by such
conduct.

Sections 4(k) and 218

. Finally, the Order cites Sections 4(k) and 218 for
the transparency rule. Id. ¶¶ 136-37 (JA__-__). Although Comcast suggests that

11
Sections 301 and 304, Order ¶ 133 (JA__), which explain the purpose of
Title III and require licensees to waive claims to particular frequencies, provide no
basis for the rules. Neither does Section 303(g), id. ¶ 128 (JA__), which simply
directs the FCC to “generally encourage the larger and more effective use of radio
in the public interest,” 47 U.S.C. § 303(g). Section 309, Order ¶ 133 (JA__), is
inapposite; it authorizes the Commission to award licenses and issue rules for
spectrum auctions. 47 U.S.C. § 309(a), (j)(3).

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these information-collection and reporting obligations, see 47 U.S.C. §§ 154(k),
218, could support ancillary authority, 600 F.3d at 659, the transparency rule does
not relate to any actual reporting or information collection requirement. Its
primary stated purpose is, instead, to advance the FCC’s “openness” policies.
Order ¶ 53 (JA__).
6. The doctrine of constitutional avoidance counsels strongly against any
finding of statutory authority for the rules because they present serious
constitutional problems, such as unconstitutional delegation, and indeed violate the
First and Fifth Amendments. See infra Section III; see also supra p. 27. To the
extent there is any doubt about the FCC’s lack of authority here, the avoidance
canon must tip the balance. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf
Coast Bldg. & Constr. Trade Council, 485 U.S. 568, 570-73 (1988); Bell Atl. Tel.
Cos. v. FCC, 24 F.3d 1441, 1445 (D.C. Cir. 1994).

III. THE ORDER

VIOLATES THE FIRST AND FIFTH AMENDMENTS.

1. The First Amendment protects not only traditional speakers, but other
participants in the “communication of ideas.” Los Angeles v. Preferred Commc’ns,
Inc., 476 U.S. 488, 494 (1986). For example, it protects those transmitting the
speech of others, and those who “exercis[e] editorial discretion” in selecting which
speech to transmit and how to transmit it. Turner Broad. Sys., Inc. v. FCC, 512
U.S. 622, 636 (1994) (“Turner I”) (quotation omitted). Broadband providers
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engage in and transmit speech, and the rules—which limit broadband providers’
own speech and compel carriage of others’ speech—cannot survive scrutiny.

Broadband providers transmit their own speech both by developing their
own content and by partnering with other content providers and adopting that
speech as their own. For example, they develop video services, which draw
information from, and are then made available over, the Internet. Many also select
or create content for their own over-the-top video services or offer applications that
provide access to particular content. They also transmit the speech of others: each
day millions of individuals use the Internet to promote their own opinions and
ideas and to explore those of others, and broadband providers convey those
communications.12

In performing these functions, broadband providers possess “editorial
discretion.” Just as a newspaper is entitled to decide which content to publish and
where, broadband providers may feature some content over others. Although
broadband providers have generally exercised their discretion to allow all content
in an undifferentiated manner, Order ¶ 14 (JA__), they nonetheless possess
discretion that these rules preclude them from exercising. For example, they could

12
The FCC asserts that broadband providers are mere “conduits for speech.”
Order ¶ 141 (JA__). Yet cable operators enjoy First Amendment protection even
though they “function[]” as “conduit[s] for the speech of others.” Turner I, 512
U.S. at 628-29.
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distinguish their own content from that of other speakers or offer that capability to
others. In fact, some types of speech, such as live streaming high-definition video,
could benefit from (or may only be available with) differential treatment, such as
prioritization. Broadband providers could also give differential pricing or priority
access to their over-the-top video services or other applications they provide, or
otherwise feature that content. See Ill. Bell Tel. Co. v. Village of Itasca, 503
F. Supp. 2d 928, 948-49 (N.D. Ill. 2007); Comcast Cablevision of Broward Cnty.,
Inc. v. Broward Cnty., 124 F. Supp. 2d 685, 692 (S.D. Fla. 2000). Indeed, the
FCC’s concern that broadband providers will differentiate among various content
presumes that they will exercise editorial discretion. See, e.g., Order ¶¶ 21-23
(JA__-__).

The Order’s broad “prophylactic rules” infringe broadband providers’
protected speech rights. They strip providers of control over which speech they
transmit and how they transmit it, and they compel the carriage of others’ speech.
They also limit the means by which providers can secure additional revenue, which
impairs their ability to deploy new networks and capabilities (or to expand the size
of existing ones), thereby limiting their ability to speak and deliver speech. And
they make clear that even “specialized services,” such as video services, will be
subject to the Order’s restrictions if the FCC decides that such services are
“retarding the growth of ... broadband Internet access service,” or if broadband
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providers merely “advertis[e]” these services to consumers as “Internet” services,
id. ¶ 114 (JA__), thus constraining their marketing speech as well.
The
Order is thus at the very least subject to intermediate scrutiny.13 Under
that standard, the Order must “further[] an important or substantial governmental
interest ... unrelated to the suppression of free expression” and the “incidental
restriction on alleged First Amendment freedoms [must be] no greater than is
essential to the furtherance of that interest.” United States v. O’Brien, 391 U.S.
367, 377 (1968). It must not “burden substantially more speech than is necessary
to further the government’s legitimate interests.” Turner I, 512 U.S. at 662
(quotation omitted).

The government bears the burden to establish that intermediate scrutiny is
satisfied. E.g., id. at 665 (plurality opinion). The Order fails to meet that burden.
A single paragraph, replete with conclusory assertions, asserts that the rules are
sufficiently tailored. Order ¶ 148 (JA__). The Order nowhere explains why these
particular regulations are necessary to address the hypothetical problems identified,
or presents evidence of their effectiveness.

13
Because the Order treats broadband providers differently than other
similarly-situated speakers (like content providers), Order ¶¶ 50-51 (JA__-__),
strict scrutiny applies, Turner I, 512 U.S. at 659. The FCC did not even attempt to
satisfy that standard.
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Regardless, the rules fail both prongs of the tailoring inquiry. First, the FCC
has identified no “important or substantial” governmental interest. O’Brien, 391
U.S. at 377. “[T]he mere abstract assertion of a substantial governmental interest,
standing alone, is insufficient to justify the subordination of First Amendment
freedoms.” Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1454 (D.C. Cir. 1985).
The government must “do more than simply ‘posit the existence of the disease
sought to be cured’”; it “must demonstrate that the recited harms are real.” Turner
I, 512 U.S. at 664 (plurality opinion) (quoting Quincy Cable, 768 F.2d at 1455).
The concerns that justified the must-carry provisions at issue in Turner do not
justify the compulsory-carriage obligations adopted here: given the competitive
choices available to consumers, broadband providers do not exercise “bottleneck
monopoly control.” Turner I, 512 U.S. at 659; Turner Broad. Sys. v. FCC, 520
U.S. 180, 197 (1997) (“Turner II”).
Moreover,
in
Turner II, the Court relied substantially on the “deference
[that] must be accorded to [Congress’s] findings as to the harm to be avoided and
to the remedial measures adopted for that end.” Id. at 196. There, Congress
considered extensive evidence, including evidence of “considerable and growing
market power,” and concluded that “a real threat justified enactment of the must-
carry provisions.” Id. at 196-97. In addition, there was evidence that cable
operators were “tak[ing] actions adverse to local broadcasters,” causing broadcast
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stations to go bankrupt, id. at 202, 209. Here, by contrast, the FCC is acting alone,
without evidence of an actual problem. Indeed, the FCC expressly declined to
determine whether broadband providers possess market power and acknowledges
that the problems it fears are hypothetical. Order ¶ 24 (JA__) (“broadband
providers have not historically imposed ... fees” on edge providers for “access or
prioritized access to end users”); see id. ¶ 62 (JA__).

To be sure, the FCC points to a handful of supposed “instances of harmful
practices,” id. ¶ 147 (JA__), but the Order was motivated not by broadband
providers’ current practices, but by the FCC’s view of their theoretical incentives
and ability to engage in practices that the FCC disfavors, id. ¶ 12 (JA__) (noting
“risk of harmful conduct”); id. ¶ 38 (JA__) (noting providers’ “increasing ability to
[interfere with the open Internet] in the future”). The mere potential for harm,
however, is not the same as actual harm. See Turner I, 512 U.S. at 664; Quincy
Cable, 768 F.2d at 1454-59.

Second, even if the FCC could demonstrate a substantial governmental
interest, the Order is both over- and under-inclusive. It is over-inclusive because it
is far broader than necessary “to further [any government] interest.” Turner I, 512
U.S. at 662. To start, the FCC did not even attempt to minimize the Order’s
speech burdens, which itself warrants invalidation. Cf. Time Warner Entmt. Co. v.
FCC, 56 F.3d 151, 185-86 (D.C. Cir. 1995). The rules are also far broader than
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required under the FCC’s own rationale: the rules are admittedly “prophylactic,”
Order ¶ 12 (JA__), and they apply to all Internet traffic even though the FCC
grasps for statutory authority in provisions related to regulated video and voice
services.
The
Order is under-inclusive because it only applies to a subset of speakers
and excludes other participants in the Internet ecosystem, including search portals
and app store operators who are similarly able to serve as “gatekeepers” and
possess the same theoretical abilities and incentives to restrict access. See supra p.
7; see also City of Ladue v. Gilleo, 512 U.S. 43, 51 (1994) (explaining that “the
notion that a regulation of speech may be impermissibly underinclusive is firmly
grounded in basic First Amendment principles”).

Apparently aware that it has identified no actual problem and that its
solution is vastly overbroad, the FCC contends that the Order is nevertheless
constitutional because the Commission’s “predictive judgments as to the
development of a problem and likely injury to the public interest are entitled to
great deference.” Order ¶ 147 (JA__); id. ¶ 41 (JA__). But this is not true under
the First Amendment, which requires the “government … to show that its
restriction of speech is narrowly tailored to an important governmental interest,
rather than rely on the deference we generally afford agencies.” Cablevision Sys.
Corp. v. FCC, 597 F.3d 1306, 1311 (D.C. Cir. 2010).
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2. The Order also violates the Fifth Amendment. It grants the equivalent of
a permanent easement on private broadband networks for the use of others without
just compensation—a per se taking. Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419 (1982). “In essence,” edge providers “receive an unlimited,
continuous right of access to broadband providers’ private property for free,”
which “allows them to physically invade broadband networks with their electronic
signals and permanently occupy portions of network capacity.” D. Lyons, Virtual
Takings: The Coming Fifth Amendment Challenge to Net Neutrality Regulation, 86
Notre Dame. L. Rev. 65, 93 (2011). The resulting occupation is physical, for
increases in network traffic consume available capacity and ultimately require the
acquisition or construction of additional capacity.

Even without a physical occupation, the rules constitute a regulatory taking
because they “interfere[] with [broadband providers’] distinct investment-backed
expectations.” Penn Cent. Trans. Co. v. City of New York, 438 U.S. 104, 124
(1978). Providers have invested billions in broadband infrastructure on the
understanding that they can manage access to network facilities and use those
facilities to offer the products that their customers want. These rules sharply curb
providers’ ability to do so, thereby frustrating their substantial and reasonable
investment-backed expectations.
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IV.

THE ORDER

IS ARBITRARY AND CAPRICIOUS.
Foremost, the record below contains no evidence of a problem in need of
industry-wide regulation. Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831,
843 (D.C. Cir. 2006). Again, the FCC’s stated policy concerns are hypothetical
and based not on broadband providers’ actual practices but the agency’s view of
their theoretical incentives and abilities. Indeed, the Order frankly acknowledges
that the Internet presently “is a level playing field,” that “consumers can make
their own choices about what applications and services to use,” “are free to decide
what content they want to access, create, or share with others,” and that open
competition exists. Order ¶ 3 (JA__) (emphasis added).
Even while emphasizing the “prophylactic” nature of the rules, the FCC
attempted to amass a supposed industry-wide “record of abuse,” Nat’l Fuel, 468
F.3d at 839, based on four isolated incidents of alleged blocking over a period of
six years—during which time end-users successfully accessed the Internet content,
applications, and services of their choice literally billions of times. Order ¶ 35
(JA__). None of these examples, other than the vacated Comcast Order, which is a
legal nullity, involved any adjudicated findings of misconduct, and all were
quickly resolved in the marketplace. Beyond this handful of assertions, the Order
discusses “additional allegations” of such conduct but expressly declines to decide
“whether any of these practices violated open Internet principles.” Id. ¶ 36 (JA__).
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Even if this handful of incidents constituted legitimate evidence of actual
misconduct, the FCC may not impose an “industry-wide solution for a problem
that exists only in isolated pockets.” Associated Gas Distribs. v. FERC, 824 F.2d
981, 1019 (D.C. Cir. 1987); cf. Fox Television Stations, Inc. v. FCC, 280 F.3d
1027, 1051 (D.C. Cir. 2002) (vacating “prophylactic rule” because a “single
incident ... is just not enough to suggest an otherwise significant problem”).

Incapable of identifying any existing problem, the Order’s “repeated
fallback is that network operators have incentives to act badly,” Order at 182
(JA__) (Baker Statement), but “there is no factual foundation” for presuming “a
malign intent on the part of broadband providers,” id. The most the agency could
say was that providers “potentially face ... incentives to reduce the current
openness of the Internet,” id. ¶ 21 (JA__), but the Order contradicts itself. It finds
that broadband providers today generally provide subscribers access to all lawful
content, id. ¶ 141 (JA__), and have strong economic incentives to continue to do
so, id. ¶ 14 (JA__). Under the APA, the FCC may not act based on pure
speculation. Horsehead Res. Dev. Co. v. Browner, 16 F.3d 1246, 1269 (D.C. Cir.
1994) (per curiam).

The record not only fails to evince any problem sufficient to justify the rules,
it demonstrates that the rules will harm innovation and deter investment by
increasing costs, foreclosing potential revenue streams, and restricting providers’
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ability to meet consumers’ evolving needs, especially in the wireless context. See
supra pp. 6-7; see also Declaration of Gary S. Becker & Dennis W. Carlton
¶¶ 66-69 (JA__-__). Even the Justice Department and Federal Trade Commission
cautioned that broadband regulation could “stifl[e] the infrastructure investments
needed to expand broadband access.” Ex Parte Submission of the U.S. DOJ at 28,
Docket No. 09-51 (Jan. 4, 2010) (JA__); FTC, Staff Report: Broadband
Connectivity Competition Policy at 11 (2007) (JA__). The FCC’s conclusion that
“open Internet rules will increase incentives to invest in broadband infrastructure,”
Order ¶ 40 (JA__), thus “runs counter to the evidence,” Nat’l Fuel, 468 F.3d at 839
(quotation omitted).
The Order is also arbitrary and capricious because the rules discriminate
between broadband providers subject to the rules and other players in the Internet
ecosystem not so restrained. Order ¶¶ 55-61 (JA__-__). The latter entities have
the same supposed incentives and abilities to engage in the behavior at which the
rules are aimed, and distinctions among Internet players are increasingly illusory.
Burlington N. & Santa Fe Ry. Co. v. Surface Transp. Bd., 403 F.3d 771, 777 (D.C.
Cir. 2005). Finally, the FCC departed, without acknowledgement, from its
precedent establishing a deregulatory framework for broadband. Fox, 129 S. Ct. at
1811.

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CONCLUSION

Appellants respectfully request that the Court reverse and vacate the Order.
Allied-Signal, Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51
(D.C. Cir. 1993); Midwest Video II, 440 U.S. at 695, 708 n.18 (affirming decision
“set[ting] aside” rules); see Comcast, 600 F.3d at 660 (vacating Comcast Order).
Vacatur is especially warranted because this is the Commission’s second attempt to
establish authority in this area. See Comcast Corp. v. FCC, 579 F.3d 1, 9-10 (D.C.
Cir. 2009).
53

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Respectfully submitted,



/s/ Helgi C. Walker

By: ________________________
Walter E. Dellinger
Helgi C. Walker*
Brianne Gorod
Eve Klindera Reed
Anton Metlitsky
William S. Consovoy
O’MELVENY & MYERS LLP
Brett A. Shumate
1625 Eye Street, NW
WILEY REIN LLP
Washington, DC 20006
1776 K Street, NW
TEL: (202) 383-5300
Washington, DC 20006

TEL: (202) 719-7000
Michael E. Glover
E-MAIL: hwalker@wileyrein.com
William H. Johnson

VERIZON
Samir C. Jain
1320 North Courthouse Road
WILMER CUTLER PICKERING
9th Floor
HALE AND DORR LLP
Arlington, VA 22201
1875 Pennsylvania Ave., NW
TEL: (703) 351-3060
Washington, DC 20006

TEL: (202) 663-6083



Attorneys for Verizon



*Counsel of Record






Stephen B. Kinnaird*
Carl W. Northrop
PAUL, HASTINGS, JANOFSKY
Michael Lazarus
& WALKER LLP
Andrew Morentz
875 15th Street, NW
TELECOMMUNICATIONS LAW
Washington, DC 20005
PROFESSIONALS PLLC
TEL: (202) 551-1842
875 15th Street, NW, Suite 750

Washington, DC 20005

TEL: (202) 789-3120








USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 85 of 116
Mark A. Stachiw

General Counsel, Secretary

& Vice Chairman

METROPCS COMMUNICATIONS, INC.

2250 Lakeside Blvd.

Richardson, TX 75082
Attorneys for MetroPCS
TEL: (214) 570-4877
Communications, Inc. and its FCC-

licensed affiliates


Dated: July 2, 2012
*Counsel of Record






USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 86 of 116

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following:
This brief complies with the type-volume limitation of Rule 32(a)(7)(B) of
the Federal Rules of Appellate Procedure and D.C. Circuit Rule 32(a)(3)(B)
because this brief contains 11,931 words, excluding the parts of the brief exempted
by Rule 32(a)(7)(B)(iii) of the Federal Rules of Appellate Procedure and Circuit
Rule 32(a)(2).
This brief complies with the typeface requirements of Rule 32(a)(5) of the
Federal Rules of Appellate Procedure and the type style requirements of Rule
32(a)(6) of the Federal Rules of Appellate Procedure because this brief has been
prepared in a proportionally spaced typeface using the 2003 version of Microsoft
Word in 14 point Times New Roman.

/s/
Helgi
C.
Walker
_____________________________



USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 87 of 116














STATUTORY ADDENDUM






USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 88 of 116

TABLE OF CONTENTS


PAGE


47 U.S.C. § 153.………………………………………………..……….………….3

47 U.S.C. § 154……………………………………………………..….…….…… 4

47 U.S.C. § 201.……………………………………………………..…….……… 4

47 U.S.C. § 202.……………………………………………………..…….……….5

47 U.S.C. § 218………………………………………………..…….………..……6

47 U.S.C. § 230 …………………………………………………..…….………….6

47 U.S.C. § 251…………………………………………………..…….…………..7

47 U.S.C. § 301….…………………………………………………..…….……….7

47 U.S.C. § 303.…………………………………………………..…….………….8

47 U.S.C. § 304…………………………………………………..…….…………16

47 U.S.C. § 309…………………………………………………..…….…………16

47 U.S.C. § 316.…………………………………………………..…….………...18

47 U.S.C. § 332.………………………………………………………….…..…...18

47 U.S.C. § 402…………..…………………………………………...…………..20

47 U.S.C. § 536…………..…………………………………………...…………..21

47 U.S.C. § 548..…………..…………………………………………...…………22

47 U.S.C. § 1302…………..…………………………………………...…………23

47 C.F.R. § 8.1…………..…………………………………………...……………24

1

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47 C.F.R. § 8.3…………..…………………………………………...……………24

47 C.F.R. § 8.5…………..…………………………………………...……………24

47 C.F.R. § 8.7…………..…………………………………………...……………25

47 C.F.R. § 8.9…………..…………………………………………...……………25

47 C.F.R. § 8.11…………..…………………………………………...…………..25
2

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47 U.S.C. § 153

For the purposes of this chapter, unless the context otherwise requires—

***

(24) Information service

The term “information service” means the offering of a capability for generating,
acquiring, storing, transforming, processing, retrieving, utilizing, or making
available information via telecommunications, and includes electronic publishing,
but does not include any use of any such capability for the management, control, or
operation of a telecommunications system or the management of a
telecommunications service.

***

(50) Telecommunications

The term “telecommunications” means the transmission, 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.

(51) Telecommunications carrier

The term “telecommunications carrier” means any provider of telecommunications
services, except that such term does not include aggregators of telecommunications
services (as defined in section 226 of this title). A telecommunications carrier shall
be treated as a common carrier under this chapter only to the extent that it is
engaged in providing telecommunications services, except that the Commission
shall determine whether the provision of fixed and mobile satellite service shall be
treated as common carriage.

***

(53) Telecommunications service

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.
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47 U.S.C. § 154

***

(k) Annual reports to Congress

The Commission shall make an annual report to Congress, copies of which shall be
distributed as are other reports transmitted to Congress. Such reports shall contain-
-

(1) such information and data collected by the Commission as may be considered
of value in the determination of questions connected with the regulation of
interstate and foreign wire and radio communication and radio transmission of
energy;

(2) such information and data concerning the functioning of the Commission as
will be of value to Congress in appraising the amount and character of the work
and accomplishments of the Commission and the adequacy of its staff and
equipment;

(3) an itemized statement of all funds expended during the preceding year by the
Commission, of the sources of such funds, and of the authority in this chapter or
elsewhere under which such expenditures were made; and

(4) specific recommendations to Congress as to additional legislation which the
Commission deems necessary or desirable, including all legislative proposals
submitted for approval to the Director of the Office of Management and Budget.

***

47 U.S.C. § 201

(a) It shall be the duty of every common carrier engaged in interstate or foreign
communication by wire or radio to furnish such communication service upon
reasonable request therefor; and, in accordance with the orders of the Commission,
in cases where the Commission, after opportunity for hearing, finds such action
necessary or desirable in the public interest, to establish physical connections with
other carriers, to establish through routes and charges applicable thereto and the
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divisions of such charges, and to establish and provide facilities and regulations for
operating such through routes.

(b) All charges, practices, classifications, and regulations for and in connection
with such communication service, shall be just and reasonable, and any such
charge, practice, classification, or regulation that is unjust or unreasonable is
declared to be unlawful: Provided, That communications by wire or radio subject
to this chapter may be classified into day, night, repeated, unrepeated, letter,
commercial, press, Government, and such other classes as the Commission may
decide to be just and reasonable, and different charges may be made for the
different classes of communications: Provided further, That nothing in this chapter
or in any other provision of law shall be construed to prevent a common carrier
subject to this chapter from entering into or operating under any contract with any
common carrier not subject to this chapter, for the exchange of their services, if the
Commission is of the opinion that such contract is not contrary to the public
interest: Provided further, That nothing in this chapter or in any other provision of
law shall prevent a common carrier subject to this chapter from furnishing reports
of positions of ships at sea to newspapers of general circulation, either at a nominal
charge or without charge, provided the name of such common carrier is displayed
along with such ship position reports. The Commission may prescribe such rules
and regulations as may be necessary in the public interest to carry out the
provisions of this chapter.

47 U.S.C. § 202

(a) Charges, services, etc.

It shall be unlawful for any common carrier to make any unjust or unreasonable
discrimination in charges, practices, classifications, regulations, facilities, or
services for or in connection with like communication service, directly or
indirectly, by any means or device, or to make or give any undue or unreasonable
preference or advantage to any particular person, class of persons, or locality, or to
subject any particular person, class of persons, or locality to any undue or
unreasonable prejudice or disadvantage.

***




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47 U.S.C. § 218

The Commission may inquire into the management of the business of all carriers
subject to this chapter, and shall keep itself informed as to the manner and method
in which the same is conducted and as to technical developments and
improvements in wire and radio communication and radio transmission of energy
to the end that the benefits of new inventions and developments may be made
available to the people of the United States. The Commission may obtain from
such carriers and from persons directly or indirectly controlling or controlled by, or
under direct or indirect common control with, such carriers full and complete
information necessary to enable the Commission to perform the duties and carry
out the objects for which it was created.

47 U.S.C. § 230

(a) Findings

The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer
services available to individual Americans represent an extraordinary advance in
the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that
they receive, as well as the potential for even greater control in the future as
technology develops.

(3) The Internet and other interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities for cultural development, and
myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the
benefit of all Americans, with a minimum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of
political, educational, cultural, and entertainment services.

(b) Policy

It is the policy of the United States--
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(1) to promote the continued development of the Internet and other interactive
computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently exists for the
Internet and other interactive computer services, unfettered by Federal or State
regulation;

(3) to encourage the development of technologies which maximize user control
over what information is received by individuals, families, and schools who use the
Internet and other interactive computer services;

(4) to remove disincentives for the development and utilization of blocking and
filtering technologies that empower parents to restrict their children's access to
objectionable or inappropriate online material; and

(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish
trafficking in obscenity, stalking, and harassment by means of computer.

***

47 U.S.C. § 251

(a) General duty of telecommunications carriers

Each telecommunications carrier has the duty--

(1) to interconnect directly or indirectly with the facilities and equipment of other
telecommunications carriers; and

(2) not to install network features, functions, or capabilities that do not comply
with the guidelines and standards established pursuant to section 255 or 256 of this
title.

***

47 U.S.C. § 301

It is the purpose of this chapter, among other things, to maintain the control of the
United States over all the channels of radio transmission; and to provide for the use
7

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of such channels, but not the ownership thereof, by persons for limited periods of
time, under licenses granted by Federal authority, and no such license shall be
construed to create any right, beyond the terms, conditions, and periods of the
license. No person shall use or operate any apparatus for the transmission of
energy or communications or signals by radio (a) from one place in any State,
Territory, or possession of the United States or in the District of Columbia to
another place in the same State, Territory, possession, or District; or (b) from any
State, Territory, or possession of the United States, or from the District of
Columbia to any other State, Territory, or possession of the United States; or (c)
from any place in any State, Territory, or possession of the United States, or in the
District of Columbia, to any place in any foreign country or to any vessel; or (d)
within any State when the effects of such use extend beyond the borders of said
State, or when interference is caused by such use or operation with the
transmission of such energy, communications, or signals from within said State to
any place beyond its borders, or from any place beyond its borders to any place
within said State, or with the transmission or reception of such energy,
communications, or signals from and/or to places beyond the borders of said State;
or (e) upon any vessel or aircraft of the United States (except as provided in section
303(t) of this title); or (f) upon any other mobile stations within the jurisdiction of
the United States, except under and in accordance with this chapter and with a
license in that behalf granted under the provisions of this chapter.

47 U.S.C. § 303

Except as otherwise provided in this chapter, the Commission from time to time, as
public convenience, interest, or necessity requires, shall--

(a) Classify radio stations;

(b) Prescribe the nature of the service to be rendered by each class of licensed
stations and each station within any class;

(c) Assign bands of frequencies to the various classes of stations, and assign
frequencies for each individual station and determine the power which each station
shall use and the time during which it may operate;

(d) Determine the location of classes of stations or individual stations;

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(e) Regulate the kind of apparatus to be used with respect to its external effects and
the purity and sharpness of the emissions from each station and from the apparatus
therein;

(f) Make such regulations not inconsistent with law as it may deem necessary to
prevent interference between stations and to carry out the provisions of this
chapter: Provided, however, That changes in the frequencies, authorized power, or
in the times of operation of any station, shall not be made without the consent of
the station licensee unless the Commission shall determine that such changes will
promote public convenience or interest or will serve public necessity, or the
provisions of this chapter will be more fully complied with;

(g) Study new uses for radio, provide for experimental uses of frequencies, and
generally encourage the larger and more effective use of radio in the public
interest;

(h) Have authority to establish areas or zones to be served by any station;

(i) Have authority to make special regulations applicable to radio stations engaged
in chain broadcasting;

(j) Have authority to make general rules and regulations requiring stations to keep
such records of programs, transmissions of energy, communications, or signals as
it may deem desirable;

(k) Have authority to exclude from the requirements of any regulations in whole or
in part any radio station upon railroad rolling stock, or to modify such regulations
in its discretion;

(l)(1) Have authority to prescribe the qualifications of station operators, to classify
them according to the duties to be performed, to fix the forms of such licenses, and
to issue them to persons who are found to be qualified by the Commission and who
otherwise are legally eligible for employment in the United States, except that such
requirement relating to eligibility for employment in the United States shall not
apply in the case of licenses issued by the Commission to (A) persons holding
United States pilot certificates; or (B) persons holding foreign aircraft pilot
certificates which are valid in the United States, if the foreign government involved
has entered into a reciprocal agreement under which such foreign government does
not impose any similar requirement relating to eligibility for employment upon
citizens of the United States;
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(2) Notwithstanding paragraph (1) of this subsection, an individual to whom a
radio station is licensed under the provisions of this chapter may be issued an
operator's license to operate that station.

(3) In addition to amateur operator licenses which the Commission may issue to
aliens pursuant to paragraph (2) of this subsection, and notwithstanding section
301 of this title and paragraph (1) of this subsection, the Commission may issue
authorizations, under such conditions and terms as it may prescribe, to permit an
alien licensed by his government as an amateur radio operator to operate his
amateur radio station licensed by his government in the United States, its
possessions, and the Commonwealth of Puerto Rico provided there is in effect a
multilateral or bilateral agreement, to which the United States and the alien's
government are parties, for such operation on a reciprocal basis by United States
amateur radio operators. Other provisions of this chapter and of subchapter II of
chapter 5, and chapter 7, of Title 5 shall not be applicable to any request or
application for or modification, suspension, or cancellation of any such
authorization.

(m)(1) Have authority to suspend the license of any operator upon proof sufficient
to satisfy the Commission that the licensee--

(A) has violated, or caused, aided, or abetted the violation of, any provision of any
Act, treaty, or convention binding on the United States, which the Commission is
authorized to administer, or any regulation made by the Commission under any
such Act, treaty, or convention; or

(B) has failed to carry out a lawful order of the master or person lawfully in charge
of the ship or aircraft on which he is employed; or

(C) has willfully damaged or permitted radio apparatus or installations to be
damaged; or

(D) has transmitted superfluous radio communications or signals or
communications containing profane or obscene words, language, or meaning, or
has knowingly transmitted--

(1) false or deceptive signals or communications, or

10

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(2) a call signal or letter which has not been assigned by proper authority to the
station he is operating; or

(E) has willfully or maliciously interfered with any other radio communications or
signals; or

(F) has obtained or attempted to obtain, or has assisted another to obtain or attempt
to obtain, an operator's license by fraudulent means.

(2) No order of suspension of any operator's license shall take effect until fifteen
days' notice in writing thereof, stating the cause for the proposed suspension, has
been given to the operator licensee who may make written application to the
Commission at any time within said fifteen days for a hearing upon such order.
The notice to the operator licensee shall not be effective until actually received by
him, and from that time he shall have fifteen days in which to mail the said
application. In the event that physical conditions prevent mailing of the application
at the expiration of the fifteen-day period, the application shall then be mailed as
soon as possible thereafter, accompanied by a satisfactory explanation of the delay.
Upon receipt by the Commission of such application for hearing, said order of
suspension shall be held in abeyance until the conclusion of the hearing which
shall be conducted under such rules as the Commission may prescribe. Upon the
conclusion of said hearing the Commission may affirm, modify, or revoke said
order of suspension.

(n) Have authority to inspect all radio installations associated with stations required
to be licensed by any Act, or which the Commission by rule has authorized to
operate without a license under section 307(e)(1) of this title, or which are subject
to the provisions of any Act, treaty, or convention binding on the United States, to
ascertain whether in construction, installation, and operation they conform to the
requirements of the rules and regulations of the Commission, the provisions of any
Act, the terms of any treaty or convention binding on the United States, and the
conditions of the license or other instrument of authorization under which they are
constructed, installed, or operated.

(o) Have authority to designate call letters of all stations;

(p) Have authority to cause to be published such call letters and such other
announcements and data as in the judgment of the Commission may be required
for the efficient operation of radio stations subject to the jurisdiction of the United
States and for the proper enforcement of this chapter;
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(q) Have authority to require the painting and/or illumination of radio towers if and
when in its judgment such towers constitute, or there is a reasonable possibility
that they may constitute, a menace to air navigation. The permittee or licensee, and
the tower owner in any case in which the owner is not the permittee or licensee,
shall maintain the painting and/or illumination of the tower as prescribed by the
Commission pursuant to this section. In the event that the tower ceases to be
licensed by the Commission for the transmission of radio energy, the owner of the
tower shall maintain the prescribed painting and/or illumination of such tower until
it is dismantled, and the Commission may require the owner to dismantle and
remove the tower when the Administrator of the Federal Aviation Agency
determines that there is a reasonable possibility that it may constitute a menace to
air navigation.

(r) Make such rules and regulations and prescribe such restrictions and conditions,
not inconsistent with law, as may be necessary to carry out the provisions of this
chapter, or any international radio or wire communications treaty or convention, or
regulations annexed thereto, including any treaty or convention insofar as it relates
to the use of radio, to which the United States is or may hereafter become a party.

(s) Have authority to require that apparatus designed to receive television pictures
broadcast simultaneously with sound be capable of adequately receiving all
frequencies allocated by the Commission to television broadcasting when such
apparatus is shipped in interstate commerce, or is imported from any foreign
country into the United States, for sale or resale to the public.

(t) Notwithstanding the provisions of section 301(e) of this title, have authority, in
any case in which an aircraft registered in the United States is operated (pursuant
to a lease, charter, or similar arrangement) by an aircraft operator who is subject to
regulation by the government of a foreign nation, to enter into an agreement with
such government under which the Commission shall recognize and accept any
radio station licenses and radio operator licenses issued by such government with
respect to such aircraft.

(u) Require that, if technically feasible--

(1) apparatus designed to receive or play back video programming transmitted
simultaneously with sound, if such apparatus is manufactured in the United States
or imported for use in the United States and uses a picture screen of any size--

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(A) be equipped with built-in closed caption decoder circuitry or capability
designed to display closed-captioned video programming;

(B) have the capability to decode and make available the transmission and delivery
of video description services as required by regulations reinstated and modified
pursuant to section 613(f) of this title; and

(C) have the capability to decode and make available emergency information (as
that term is defined in section 79.2 of the Commission's regulations (47 CFR 79.2))
in a manner that is accessible to individuals who are blind or visually impaired;
and

(2) notwithstanding paragraph (1) of this subsection--

(A) apparatus described in such paragraph that use a picture screen that is less than
13 inches in size meet the requirements of subparagraph (A), (B), or (C) of such
paragraph only if the requirements of such subparagraphs are achievable (as
defined in section 617 of this title);

(B) any apparatus or class of apparatus that are display-only video monitors with
no playback capability are exempt from the requirements of such paragraph; and

(C) the Commission shall have the authority, on its own motion or in response to a
petition by a manufacturer, to waive the requirements of this subsection for any
apparatus or class of apparatus--

(i) primarily designed for activities other than receiving or playing back video
programming transmitted simultaneously with sound; or

(ii) for equipment designed for multiple purposes, capable of receiving or playing
video programming transmitted simultaneously with sound but whose essential
utility is derived from other purposes.

(v) Have exclusive jurisdiction to regulate the provision of direct-to-home satellite
services. As used in this subsection, the term “direct-to-home satellite services”
means the distribution or broadcasting of programming or services by satellite
directly to the subscriber's premises without the use of ground receiving or
distribution equipment, except at the subscriber's premises or in the uplink process
to the satellite.

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(w) Omitted.

(x) Require, in the case of an apparatus designed to receive television signals that
are shipped in interstate commerce or manufactured in the United States and that
have a picture screen 13 inches or greater in size (measured diagonally), that such
apparatus be equipped with a feature designed to enable viewers to block display
of all programs with a common rating, except as otherwise permitted by
regulations pursuant to section 330(c)(4) of this title.

(y) Have authority to allocate electromagnetic spectrum so as to provide flexibility
of use, if--

(1) such use is consistent with international agreements to which the United States
is a party; and

(2) the Commission finds, after notice and an opportunity for public comment,
that--

(A) such an allocation would be in the public interest;

(B) such use would not deter investment in communications services and systems,
or technology development; and

(C) such use would not result in harmful interference among users.

(z) Require that--

(1) if achievable (as defined in section 617 of this title), apparatus designed to
record video programming transmitted simultaneously with sound, if such
apparatus is manufactured in the United States or imported for use in the United
States, enable the rendering or the pass through of closed captions, video
description signals, and emergency information (as that term is defined in section
79.2 of title 47, Code of Federal Regulations) such that viewers are able to activate
and de-activate the closed captions and video description as the video
programming is played back on a picture screen of any size; and

(2) interconnection mechanisms and standards for digital video source devices are
available to carry from the source device to the consumer equipment the
information necessary to permit or render the display of closed captions and to
make encoded video description and emergency information audible.
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(aa) Require--

(1) if achievable (as defined in section 617 of this title) that digital apparatus
designed to receive or play back video programming transmitted in digital format
simultaneously with sound, including apparatus designed to receive or display
video programming transmitted in digital format using Internet protocol, be
designed, developed, and fabricated so that control of appropriate built-in
apparatus functions are accessible to and usable by individuals who are blind or
visually impaired, except that the Commission may not specify the technical
standards, protocols, procedures, and other technical requirements for meeting this
requirement;

(2) that if on-screen text menus or other visual indicators built in to the digital
apparatus are used to access the functions of the apparatus described in paragraph
(1), such functions shall be accompanied by audio output that is either integrated or
peripheral to the apparatus, so that such menus or indicators are accessible to and
usable by individuals who are blind or visually impaired in real-time;

(3) that for such apparatus equipped with the functions described in paragraphs (1)
and (2) built in access to those closed captioning and video description features
through a mechanism that is reasonably comparable to a button, key, or icon
designated for activating the closed captioning or accessibility features; and

(4) that in applying this subsection the term “apparatus” does not include a
navigation device, as such term is defined in section 76.1200 of the Commission's
rules (47 CFR 76.1200).

(bb) Require--

(1) if achievable (as defined in section 617 of this title), that the on-screen text
menus and guides provided by navigation devices (as such term is defined in
section 76.1200 of title 47, Code of Federal Regulations) for the display or
selection of multichannel video programming are audibly accessible in real- time
upon request by individuals who are blind or visually impaired, except that the
Commission may not specify the technical standards, protocols, procedures, and
other technical requirements for meeting this requirement;

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(2) for navigation devices with built-in closed captioning capability, that access to
that capability through a mechanism is reasonably comparable to a button, key, or
icon designated for activating the closed captioning, or accessibility features; and

(3) that, with respect to navigation device features and functions--

(A) delivered in software, the requirements set forth in this subsection shall apply
to the manufacturer of such software; and

(B) delivered in hardware, the requirements set forth in this subsection shall apply
to the manufacturer of such hardware.

47 U.S.C. § 304

No station license shall be granted by the Commission until the applicant therefor
shall have waived any claim to the use of any particular frequency or of the
electromagnetic spectrum as against the regulatory power of the United States
because of the previous use of the same, whether by license or otherwise.

47 U.S.C. § 309

(a) Considerations in granting application

Subject to the provisions of this section, the Commission shall determine, in the
case of each application filed with it to which section 308 of this title applies,
whether the public interest, convenience, and necessity will be served by the
granting of such application, and, if the Commission, upon examination of such
application and upon consideration of such other matters as the Commission may
officially notice, shall find that public interest, convenience, and necessity would
be served by the granting thereof, it shall grant such application.

***

(j) Use of competitive bidding

***

(3) Design of systems of competitive bidding

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For each class of licenses or permits that the Commission grants through the use of
a competitive bidding system, the Commission shall, by regulation, establish a
competitive bidding methodology. The Commission shall seek to design and test
multiple alternative methodologies under appropriate circumstances. The
Commission shall, directly or by contract, provide for the design and conduct (for
purposes of testing) of competitive bidding using a contingent combinatorial
bidding system that permits prospective bidders to bid on combinations or groups
of licenses in a single bid and to enter multiple alternative bids within a single
bidding round. In identifying classes of licenses and permits to be issued by
competitive bidding, in specifying eligibility and other characteristics of such
licenses and permits, and in designing the methodologies for use under this
subsection, the Commission shall include safeguards to protect the public interest
in the use of the spectrum and shall seek to promote the purposes specified in
section 151 of this title and the following objectives:

(A) the development and rapid deployment of new technologies, products, and
services for the benefit of the public, including those residing in rural areas,
without administrative or judicial delays;

(B) promoting economic opportunity and competition and ensuring that new and
innovative technologies are readily accessible to the American people by avoiding
excessive concentration of licenses and by disseminating licenses among a wide
variety of applicants, including small businesses, rural telephone companies, and
businesses owned by members of minority groups and women;

(C) recovery for the public of a portion of the value of the public spectrum
resource made available for commercial use and avoidance of unjust enrichment
through the methods employed to award uses of that resource;

(D) efficient and intensive use of the electromagnetic spectrum;

(E) ensure that, in the scheduling of any competitive bidding under this subsection,
an adequate period is allowed; and

(i) before issuance of bidding rules, to permit notice and comment on proposed
auction procedures; and

(ii) after issuance of bidding rules, to ensure that interested parties have a sufficient
time to develop business plans, assess market conditions, and evaluate the
availability of equipment for the relevant services.
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(F) for any auction of eligible frequencies described in section 923(g)(2) of this
title, the recovery of 110 percent of estimated relocation costs as provided to the
Commission pursuant to section 923(g)(4) of this title.

***

47 U.S.C. § 316

(a)(1) Any station license or construction permit may be modified by the
Commission either for a limited time or for the duration of the term thereof, if in
the judgment of the Commission such action will promote the public interest,
convenience, and necessity, or the provisions of this chapter or of any treaty
ratified by the United States will be more fully complied with. No such order of
modification shall become final until the holder of the license or permit shall have
been notified in writing of the proposed action and the grounds and reasons
therefor, and shall be given reasonable opportunity, of at least thirty days, to
protest such proposed order of modification; except that, where safety of life or
property is involved, the Commission may by order provide, for a shorter period of
notice.

***

47 U.S.C. § 332

***

(c) Regulatory treatment of mobile services

(1) Common carrier treatment of commercial mobile services

(A) A person engaged in the provision of a service that is a commercial mobile
service shall, insofar as such person is so engaged, be treated as a common carrier
for purposes of this chapter, except for such provisions of subchapter II of this
chapter as the Commission may specify by regulation as inapplicable to that
service or person. In prescribing or amending any such regulation, the Commission
may not specify any provision of section 201, 202, or 208 of this title, and may
specify any other provision only if the Commission determines that--

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(i) enforcement of such provision is not necessary in order to ensure that the
charges, practices, classifications, or regulations for or in connection with that
service are just and reasonable and are not unjustly or unreasonably discriminatory;

(ii) enforcement of such provision is not necessary for the protection of consumers;
and

(iii) specifying such provision is consistent with the public interest.

***

(2) Non-common carrier treatment of private mobile services

A person engaged in the provision of a service that is a private mobile service shall
not, insofar as such person is so engaged, be treated as a common carrier for any
purpose under this chapter. A common carrier (other than a person that was treated
as a provider of a private land mobile service prior to August 10, 1993) shall not
provide any dispatch service on any frequency allocated for common carrier
service, except to the extent such dispatch service is provided on stations licensed
in the domestic public land mobile radio service before January 1, 1982. The
Commission may by regulation terminate, in whole or in part, the prohibition
contained in the preceding sentence if the Commission determines that such
termination will serve the public interest.

***

(d) Definitions

For purposes of this section--

(1) the term “commercial mobile service” means any mobile service (as defined in
section 153 of this title) that is provided for profit and makes interconnected
service available (A) to the public or (B) to such classes of eligible users as to be
effectively available to a substantial portion of the public, as specified by
regulation by the Commission;

(2) the term “interconnected service” means service that is interconnected with the
public switched network (as such terms are defined by regulation by the
Commission) or service for which a request for interconnection is pending
pursuant to subsection (c)(1)(B) of this section; and
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(3) the term “private mobile service” means any mobile service (as defined in
section 153 of this title) that is not a commercial mobile service or the functional
equivalent of a commercial mobile service, as specified by regulation by the
Commission.

47 U.S.C. § 402

(a) Procedure

Any proceeding to enjoin, set aside, annul, or suspend any order of the
Commission under this chapter (except those appealable under subsection (b) of
this section) shall be brought as provided by and in the manner prescribed in
chapter 158 of Title 28.

(b) Right to appeal

Appeals may be taken from decisions and orders of the Commission to the United
States Court of Appeals for the District of Columbia in any of the following cases:

(1) By any applicant for a construction permit or station license, whose application
is denied by the Commission.

(2) By any applicant for the renewal or modification of any such instrument of
authorization whose application is denied by the Commission.

(3) By any party to an application for authority to transfer, assign, or dispose of
any such instrument of authorization, or any rights thereunder, whose application is
denied by the Commission.

(4) By any applicant for the permit required by section 325 of this title whose
application has been denied by the Commission, or by any permittee under said
section whose permit has been revoked by the Commission.

(5) By the holder of any construction permit or station license which has been
modified or revoked by the Commission.

(6) By any other person who is aggrieved or whose interests are adversely affected
by any order of the Commission granting or denying any application described in
paragraphs (1), (2), (3), (4), and (9) of this subsection.
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(7) By any person upon whom an order to cease and desist has been served under
section 312 of this title.

(8) By any radio operator whose license has been suspended by the Commission.

(9) By any applicant for authority to provide interLATA services under section 271
of this title whose application is denied by the Commission.

(10) By any person who is aggrieved or whose interests are adversely affected by a
determination made by the Commission under section 618(a)(3) of this title.

***

47 U.S.C. § 536

(a) Regulations

Within one year after October 5, 1992, the Commission shall establish regulations
governing program carriage agreements and related practices between cable
operators or other multichannel video programming distributors and video
programming vendors. Such regulations shall--

(1) include provisions designed to prevent a cable operator or other multichannel
video programming distributor from requiring a financial interest in a program
service as a condition for carriage on one or more of such operator's systems;

(2) include provisions designed to prohibit a cable operator or other multichannel
video programming distributor from coercing a video programming vendor to
provide, and from retaliating against such a vendor for failing to provide, exclusive
rights against other multichannel video programming distributors as a condition of
carriage on a system;

(3) contain provisions designed to prevent a multichannel video programming
distributor from engaging in conduct the effect of which is to unreasonably restrain
the ability of an unaffiliated video programming vendor to compete fairly by
discriminating in video programming distribution on the basis of affiliation or
nonaffiliation of vendors in the selection, terms, or conditions for carriage of video
programming provided by such vendors;

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(4) provide for expedited review of any complaints made by a video programming
vendor pursuant to this section;

(5) provide for appropriate penalties and remedies for violations of this subsection,
including carriage; and

(6) provide penalties to be assessed against any person filing a frivolous complaint
pursuant to this section.

(b) “Video programming vendor” defined

As used in this section, the term “video programming vendor” means a person
engaged in the production, creation, or wholesale distribution of video
programming for sale.

47 U.S.C. § 548

(a) Purpose

The purpose of this section is to promote the public interest, convenience, and
necessity by increasing competition and diversity in the multichannel video
programming market, to increase the availability of satellite cable programming
and satellite broadcast programming to persons in rural and other areas not
currently able to receive such programming, and to spur the development of
communications technologies.

(b) Prohibition

It shall be unlawful for a cable operator, a satellite cable programming vendor in
which a cable operator has an attributable interest, or a satellite broadcast
programming vendor to engage in unfair methods of competition or unfair or
deceptive acts or practices, the purpose or effect of which is to hinder significantly
or to prevent any multichannel video programming distributor from providing
satellite cable programming or satellite broadcast programming to subscribers or
consumers.

***



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47 U.S.C. § 1302

(a) In general

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.

(b) Inquiry

The Commission shall, within 30 months after February 8, 1996, and annually
thereafter, initiate a notice of inquiry concerning the availability of advanced
telecommunications capability to all Americans (including, in particular,
elementary and secondary schools and classrooms) and shall complete the inquiry
within 180 days after its initiation. In the inquiry, the Commission shall determine
whether advanced telecommunications capability is being deployed to all
Americans in a reasonable and timely fashion. If the Commission's determination
is negative, it shall take immediate action to accelerate deployment of such
capability by removing barriers to infrastructure investment and by promoting
competition in the telecommunications market.

(c) Demographic information for unserved areas

As part of the inquiry required by subsection (b), the Commission shall compile a
list of geographical areas that are not served by any provider of advanced
telecommunications capability (as defined by subsection (d)(1) of this section) and
to the extent that data from the Census Bureau is available, determine, for each
such unserved area--

(1) the population;

(2) the population density; and

(3) the average per capita income.

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(d) Definitions

For purposes of this subsection:

(1) Advanced telecommunications capability

The term “advanced telecommunications capability” is defined, without regard to
any transmission media or technology, as high-speed, switched, broadband
telecommunications capability that enables users to originate and receive high-
quality voice, data, graphics, and video telecommunications using any technology.

(2) Elementary and secondary schools

The term “elementary and secondary schools” means elementary and secondary
schools, as defined in section 7801 of Title 20.

47 C.F.R. § 8.1

The purpose of this part is to preserve the Internet as an open platform enabling
consumer choice, freedom of expression, end-user control, competition, and the
freedom to innovate without permission.

47 C.F.R. § 8.3

A person engaged in the provision of broadband Internet access service shall
publicly disclose accurate information regarding the network management
practices, performance, and commercial terms of its broadband Internet access
services sufficient for consumers to make informed choices regarding use of such
services and for content, application, service, and device providers to develop,
market, and maintain Internet offerings.

47 C.F.R. § 8.5

(a) A person engaged in the provision of fixed broadband Internet access service,
insofar as such person is so engaged, shall not block lawful content, applications,
services, or non-harmful devices, subject to reasonable network management.

(b) A person engaged in the provision of mobile broadband Internet access service,
insofar as such person is so engaged, shall not block consumers from accessing
lawful Web sites, subject to reasonable network management; nor shall such
24

USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 112 of 116
person block applications that compete with the provider's voice or video
telephony services, subject to reasonable network management.

47 C.F.R. § 8.7

A person engaged in the provision of fixed broadband Internet access service,
insofar as such person is so engaged, shall not unreasonably discriminate in
transmitting lawful network traffic over a consumer's broadband Internet access
service. Reasonable network management shall not constitute unreasonable
discrimination.

47 C.F.R. § 8.9

(a) Nothing in this part supersedes any obligation or authorization a provider of
broadband Internet access service may have to address the needs of emergency
communications or law enforcement, public safety, or national security authorities,
consistent with or as permitted by applicable law, or limits the provider's ability to
do so.

(b) Nothing in this part prohibits reasonable efforts by a provider of broadband
Internet access service to address copyright infringement or other unlawful
activity.

47 C.F.R. § 8.11

(a) Broadband Internet access service. A mass-market retail service by wire or
radio that provides the capability to transmit data to and receive data from all or
substantially all Internet endpoints, including any capabilities that are incidental to
and enable the operation of the communications service, but excluding dial-up
Internet access service. This term also encompasses any service that the
Commission finds to be providing a functional equivalent of the service described
in the previous sentence, or that is used to evade the protections set forth in this
part.

(b) Fixed broadband Internet access service. A broadband Internet access service
that serves end users primarily at fixed endpoints using stationary equipment.
Fixed broadband Internet access service includes fixed wireless services (including
fixed unlicensed wireless services), and fixed satellite services.

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USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 113 of 116
(c) Mobile broadband Internet access service. A broadband Internet access service
that serves end users primarily using mobile stations.

(d) Reasonable network management. A network management practice is
reasonable if it is appropriate and tailored to achieving a legitimate network
management purpose, taking into account the particular network architecture and
technology of the broadband Internet access service.

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USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 114 of 116

CERTIFICATE OF SERVICE

I, Helgi C. Walker, hereby certify that on July 2, 2012, I electronically filed
the foregoing document with the Clerk of the Court for the United States Court of
Appeals for the D.C. Circuit by using the CM/ECF system. I further certify that
six copies of the foregoing will be filed with the Clerk of the Court for the United
States Court of Appeals for the D.C. Circuit within two business days. Participants
in the case who are registered CM/ECF users will be served by the CM/ECF
system.
Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the foregoing
document be mailed by First-Class Mail to those persons, unless another attorney
representing the same party is receiving electronic service.
Austin C. Schlick
Nancy C. Garrison
Richard K. Welch
R. Craig Lawrence
Joel Marcus
Catherine G. O’Sullivan
Jacob M. Lewis
Robert J. Wiggers
Peter Karanjia
U.S. Department of Justice
Federal Communications Commission
(DOJ) Antitrust Division, Appellate
Office of the General Counsel
Section
445 12th Street, S.W.
Room 3224
Washington, DC 20554
950 Pennsylvania Avenue, NW

Washington, DC 20530-0001
Counsel for the Federal Communications
Commission
Counsel for United States of America






USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 115 of 116
James B. Ramsay
Genevieve Morelli
National Association of Regulatory
Independent Telephone &
Utility Commissioners
Telecommunications Alliance
1101 Vermont Avenue, N.W.
1101 Vermont Avenue, NW
Suite 200
Suite 501
Washington, DC 20005
Washington, DC 20005


Counsel for National Association of
Counsel for Independent Telephone &
Regulatory Utility Commissioners
Telecommunications Alliance

Harold J. Feld
Henry Goldberg
Public Knowledge
Goldberg, Godles, Wiener & Wright
1818 N Street, N.W.
1229 19th Street, NW
Suite 410
Washington, DC 20036-2413
Washington, DC 20036


Counsel for Open Internet Coalition
Counsel for Public Knowledge


David Bergmann
Michael Field Altschul
Assistant Consumers’ Counsel
CTIA-The Wireless Association®
Chair, NASUCA Telecommunications
Suite 600
Committee
1400 16th Street, NW
Office of the Ohio Consumers’
Suite 600
Counsel
Washington, DC 20036-0000
10 West Broad Street, Suite 800

Columbus, OH 43215
Council for CTIA-The Wireless

Association®
Counsel for National Association of State
Utility Consumer Advocates

Earle Duncan Getchell Jr.
Jeffrey J. Binder
Office of the Attorney General,
Law Office of Jeffrey Binder
Commonwealth of Virginia
2510 Virginia Avenue, NW
900 East Main Street
Suite 1107
Richmond, VA 23219
Washington, DC 20037


Counsel for the Commonwealth of
Counsel for Vonage Holdings
Virginia
Corporation





USCA Case #11-1355 Document #1381604 Filed: 07/02/2012 Page 116 of 116
Brendan Daniel Kasper
Jonathan E. Nuechterlein
Kurt Matthew Rogers*
Elvis Stumbergs
Vonage Holdings Corp.
Heather Marie Zachary
23 Main Street
Wilmer Cutler Pickering Hale and Dorr,
Homdel, NJ 07333
LLP

1875 Pennsylvania Avenue, NW
Counsel for Vonage Holdings
Washington, DC 20006-1420
Corporation


Council for CTIA-The Wireless
Association®

Matthew F. Wood

Free Press
1025 Connecticut Avenue, NW
Suite 1110
Washington, DC 20036

Counsel for Free Press

/s/
Helgi
C.
Walker
_____________________________




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