Federal Communications Commission FCC 24-52
1
DISSENTING STATEMENT OF
COMMISSIONER BRENDAN CARR
Re: Safeguarding and Securing the Open Internet, Declaratory Ruling, Order, Report and Order, and
Order on Reconsideration, WC Docket Nos. 23-320, 17-108 (Apr. 25, 2024)
The Internet in America has thrived in the absence of 1930s command and control regulation by
the government. Indeed, bipartisan consensus emerged early on that the government should not regulate
the Internet like Ma Bell’s copper line telephone monopoly.
In the Telecommunications Act of 1996, a Republican Congress and a Democrat President came
together and agreed “to preserve the vibrant and competitive free market that presently exists for the
Internet . . . unfettered by Federal or State regulation.”
1
Just two years later, the FCC issued a report
addressing the terms Congress added to the Communications Act of 1934 in that 1996 enactment—
including the distinction Congress had drawn between a lightly regulated Title I “information service” and
a heavily regulated Title II “telecommunications service.”
2
The FCC, chaired at the time by a Democrat
and President Clinton appointee, confirmed that Internet access service is a Title I information service
under the statute.
For decades, that bipartisan position held. It held through the remainder of the Clinton
Administration. It held through all eight years of the Bush Administration. And it held through the first
six years of the Obama Administration. Every FCC Chair across those nearly 20 years, Republican and
Democrat alike, repeatedly affirmed that broadband Internet access service (BIAS) remained a Title I
information service, not a Title II telecommunications service. The FCC did so again
3
and again
4
and
again
5
and again.
6
And it even did so while pursuing a variety of “net neutrality” initiatives.
7
1
See Telecommunications Act of 1996, § 509, P.L. 104-104, 100 Stat. 56, 137 (1996) (1996 Act); see 47 U.S.C. §
230(b)(2).
2
See Federal-State Joint Board on Universal Service, Report to Congress, 13 FCC Rcd 11501 (1998) (Stevens
Report); see also Dissenting Statement of Commissioner Ajit Pai, Protecting and Promoting the Open Internet,
Order on Remand Order and Declaratory Ruling, 30 FCC Rcd 5601, at 33-35 (rel. Mar. 12, 2015),
https://docs.fcc.gov/public/attachments/FCC-15-24A5.pdf (Pai 2015 Title II Dissent).
3
See Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over Cable
Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities,
Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798 (2002) (classifying broadband Internet
access service over cable systems), aff’d sub nom. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545
U.S. 967 (2005).
4
See Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., Report and Order
and Notice of Proposed Rulemaking, 20 FCC Rcd 14853 (2005) (classifying broadband Internet access service over
wireline facilities).
5
See United Power Line Council’s Petition for Declaratory Ruling Regarding the Classification of Broadband over
Power Line Internet Access Service as an Information Service, Memorandum Opinion and Order, 21 FCC Rcd
13281 (2006) (classifying broadband Internet access service over power lines).
6
See Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, Declaratory
Ruling, 22 FCC Rcd 5901 (2007) (classifying broadband Internet access service over wireless networks).
7
Preserving the Open Internet; Broadband Industry Practices, 25 FCC Rcd 17905, 17972-80, 17981, paras. 124-35,
137 (2010) (2010 Open Internet Order); Appropriate Framework for Broadband Access to the Internet over Wireline
Facilities et al., Policy Statement, 20 FCC Rcd 14986 (2005).
Federal Communications Commission FCC 24-52
2
Indeed, while activists on the political fringe lobbied for years to persuade the FCC to change
course and regulate the Internet as a public utility under Title II, the FCC never wavered. Not once.
Classifying the Internet as a Title II service remained the third rail of communications policy—both
unlawful and misguided.
All of that changed in a flash. In fact, the years of bipartisan consensus vanished over the course
of just 117 seconds. On November 10, 2014, President Obama published a YouTube video calling on the
FCC to label broadband Internet access service a Title II telecommunications service for the first time
ever and to impose sweeping new government controls on the Internet in the name of “net neutrality.”
8
President Obama’s one minute and 57 second video was the culmination of an unprecedented and
coordinated effort by the Executive Branch to pressure an independent agency into grabbing power that
the Legislative Branch never said it had delegated. Indeed, on the very same morning that President
Obama released his video calling for Title II, activists showed up at the home of the FCC Chairman and
used their bodies to blockade his driveway, demanding that he classify the Internet as a Title II service or
else they would not let him leave. They returned to his home again that same night. Chairman Wheeler
would later write an email suggesting that he believed those activists that showed up at his home did not
act independently from the White House.
9
8
See Ezra Mechaber, President Obama Urges FCC to Implement Stronger Net Neutrality Rules, White House Blog
(Nov. 10, 2014), https://obamawhitehouse.archives.gov/blog/2014/11/10/president-obama-urges-fcc-implement-
stronger-net-neutrality-rules.
9
See Hearing before the Committee on Oversight and Government Reform, House of Representatives, FCC:
Process and Transparency, at 14-19 (Mar. 17, 2015), https://oversight.house.gov/wp-content/uploads/2016/04/3-17-
15-FCC-Process-and-Transparency.pdf (2015 FCC Process and Transparency Hearing); see also Hearing before the
Committee on Oversight and Government Reform, House of Representatives, FCC: Process and Transparency.
FCC Hearing Packet, at 3 (Mar. 17, 2015), https://oversight.house.gov/wp-content/uploads/2015/03/FCC-Hearing-
Packet.pdf (2015 Oversight Hearing Packet).
Federal Communications Commission FCC 24-52
3
The pressure campaign continued to mount. Just weeks later, Title II activists rushed the dais
during the FCC’s monthly Commission meeting—obstructing an official proceeding—and unfurled a
“Reclassify Now” banner behind the heads of FCC Commissioners before FCC security intervened.
And just days before President Obama released his Title II video, Jeff Zients—who serves today
as President Biden’s Chief of Staff, but was serving then as President Obama’s Director of the National
Economic Council—took the unprecedented step of visiting the FCC Chairman in his FCC office so that
he could deliver a message about President Obama’s upcoming announcement on Title II.
Why this flurry of pressure from the White House in November of 2014? As FCC emails show,
the FCC Chairman was just days away from circulating a draft decision that would have adopted net
neutrality rules but stopped short of full Title II classification.
10
The White House decided that it had to
stop this FCC plan before the FCC Chairman took it public. So it acted to derail the compromise path
that the FCC Chair had been charting.
The Wall Street Journal ran a deeply reported story on all of this, titled “Net Neutrality: How
White House Thwarted FCC Chief.”
11
It describes “an unusual, secretive effort inside the White House,
10
See U.S. Senator Ron Johnson, Regulating the Internet: How the White House Bowled Over FCC Independence. A
Majority Staff Report of the Committee on Homeland Security and Governmental Affairs, United States Senate, at 9-
17 (2016), https://www.hsgac.senate.gov/wp-content/uploads/imo/media/doc/FCC%20Report_FINAL.pdf (2016
Senate Report).
11
See Gautham Nagesh and Bordy Mullins, Net Neutrality: How the White House Thwarted FCC Chief, Wall St. J.
(Feb. 4, 2015), https://www.wsj.com/articles/how-white-house-thwarted-fcc-chief-on-internet-rules-1423097522.
Federal Communications Commission FCC 24-52
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Fundamentally, I would argue, much of the fault lies with the judiciary’s application of Chevron.
The Supreme Court’s decision in Chevron created a situation where the Executive Branch could engage in
the type of pressure campaigns that we witnessed with Title II. That is because Chevron, at least as
applied by some courts, has allowed agencies to seize big, new powers without an express grant of
authority from Congress. If a statute were ambiguous, Chevron held, an agency could go ahead and
regulate. In cases of vast economic or political significance at least, Chevron not only creates an
environment in which agencies push beyond the bounds of their authority, it creates an incentive for the
Executive Branch or other political actors to pressure them into doing so.
That is why the Supreme Court’s decision in West Virginia v. EPA is so important.
24
It makes
clear that on matters of enormous significance, like the one before us today, administrative agencies must
point to far more than an ambiguous statute to persuade a reviewing court that Congress authorized the
agency to act. After all, as a constitutional matter, Congress does not operate like a sieve—inadvertently
spilling grants of massive new authorities. After West Virginia, Congress’s delegation of authority in
these types of cases can no longer be implicit; it must be explicit. Properly applied, West Virgina will stop
the flip-flopping and eliminate the incentives for the Executive Branch to engage in the type of pressure
campaigns we have seen on Title II. It will help improve administrative agency decisions, too, by
ensuring that they are driven by the facts, the law, and the record. It will allow the natural forces of
compromise to work their will on legislating, rather than winner-take-all party line votes at agencies. And
it will ensure that the legislative powers will remain with Congress unless and until the Legislature
decides to delegate them.
25
If that weren’t enough, today’s Order independently violates the Supreme Court’s command in
West Virginia through its unrestrained use of forbearance.
26
Although the FCC may forbear from parts of
Title II, the Order indiscriminately applies that authority to fundamentally rewrite the 1996 Act by line-
item vetoing more than a dozen provisions central to Title II’s legislative design. As multiple Supreme
Court decisions confirm, that unrestrained application of forbearance is illegitimate. Indeed, just last
year, the Supreme Court struck down the Biden Administration’s use of analogous waiver authority after
the Education Department tried to use it to wipe away student loan debt.
27
As a matter of statutory
construction and implied delegation, the FCC is not presumed to have the sweeping power to refashion
Title II into an entirely new legislative scheme by picking and choosing which parts of Title II will apply.
* * *
The FCC’s flip-flopping also informs how seriously one should take the Order’s policy
arguments. The FCC tries to dress up its latest power grab in a 400-plus page Order that offers a laundry
list of bogus justifications. Few of them rely on actual evidence. Virtually none point to real problems.
All fall apart under casual scrutiny. Indeed, it’s not even clear the FCC believes the reasons it offers today
for Title II.
24
West Virginia v. EPA, 142 S. Ct. 2587, 2605 (2022). See infra I.A.1-2.
25
See Letter from the Hons. Cathy McMorris Rodgers and Ted Cruz et al. to the Hon. Jessica Rosenworcel,
Chairwoman, FCC, at 2 (Apr.. 23, 2024) (“Congress’s decision to treat broadband Internet access as an information
service, rather than a telecommunications service, was a deliberate policy choice.”); Letter from the Hon. Josh
Gottheimer et al. to the Hon. Jessica Rosenworcel, Chairwoman, FCC, at 2 (Apr. 20, 2024) (“Given that there is no
threat of imminent harm requiring Commission action, we ask the Commission to defer action on the NPRM to
allow this legislative process to continue and to avoid imperiling important federal policy objectives.”).
26
See infra I.A.3.
27
Biden v. Nebraska, 143 S. Ct. 2355 (2023).
Federal Communications Commission FCC 24-52
5
approach, delayed the vote, and quickly drafted a decision that went full Title II—just as the President had
demanded.
18
Chairman Wheeler would refer to the episode in an email as his “Damascus Road
experience.”
19
Ever since President Obama flipped FCC Chairman Wheeler,
20
there has been no turning back.
Title II is now a matter of civic religion for activists on the left. They demand that the FCC go full Title II
whenever a Democrat is President. Everyone knows what is expected. Indeed, President Biden made
restoring Title II a campaign promise, and Jeff Zients is back in the White House.
21
So, yes, millions of comments have been filed at the FCC on Title II and net neutrality over the
years. But none of them mattered. None of them persuaded the FCC to go full Title II. Only the
President mattered. This also explains why the FCC has never been able to come up with a credible
reason or policy rationale for Title II. It’s all shifting sands. And that’s because the agency is just doing
what it has been told to do by the Executive Branch and cobbling together post hoc rationalizations as it
goes along.
* * *
Now, you may wonder why I am starting out my statement by recounting this bit of FCC history.
Well, for starters, I think it tells an important part of the Title II story. The FCC’s position on Title II did
not simply evolve over the course of years. The Overton window on Title II did not just naturally shift.
President Obama forced the FCC’s hand. I understand that there are many people that would like to
sweep that entire episode under the rug and forget about it. I am not one of them.
But I am also starting out my statement here for a more fundamental reason. After all, it is not
surprising that the Executive Branch tried to pressure another component of the government into doing
something the President thought would benefit him politically. In many ways, that is a story as old as the
Republic itself. But what is surprising is that it succeeded—that the courts sanctioned the power grab.
You see, the Framers understood the nature of those in power, and they set up a series of checks
and balances to avoid government overreach. Chief among them is the Constitution’s separation of
powers. In Article I, “the People” vested “[a]ll” federal “legislative powers . . . in Congress.”
22
As Chief
Justice Marshall put it, this means that “important subjects . . . must be entirely regulated by the
legislature itself,” even if Congress may leave the Executive Branch to “fill up the details.”
23
That did not
happen here. Congress never passed a law saying that the Internet should be heavily regulated like a
utility, nor did it pass one giving the FCC authority to make that monumental determination. The
Executive Branch pressured the agency into claiming a power that remained—and remains—with the
Legislative Branch.
18
2016 Senate Report at 17-29.
19
2016 Senate Report at 5, 14.
20
See Protecting and Promoting the Open Internet, Report and Order on Remand, Declaratory Ruling, and Order, 30
FCC Rcd 5601 (2015) (2015 Title II Order).
21
See, e.g., Biden-Sanders Unity Task Force Recommendations, at 13 (July 8, 2020), https://joebiden.com/wp-
content/uploads/2020/08/UNITY-TASK-FORCE-RECOMMENDATIONS.pdf.
22
U.S. Const. Art. I. § 1; U.S. Const. preamble.
23
Wayman v. Southard, 10 Wheat. 1, 42-43 (1825).
Federal Communications Commission FCC 24-52
6
Fundamentally, I would argue, much of the fault lies with the judiciary’s application of Chevron.
The Supreme Court’s decision in Chevron created a situation where the Executive Branch could engage in
the type of pressure campaigns that we witnessed with Title II. That is because Chevron, at least as
applied by some courts, has allowed agencies to seize big, new powers without an express grant of
authority from Congress. If a statute were ambiguous, Chevron held, an agency could go ahead and
regulate. In cases of vast economic or political significance at least, Chevron not only creates an
environment in which agencies push beyond the bounds of their authority, it creates an incentive for the
Executive Branch or other political actors to pressure them into doing so.
That is why the Supreme Court’s decision in West Virginia v. EPA is so important.
24
It makes
clear that on matters of enormous significance, like the one before us today, administrative agencies must
point to far more than an ambiguous statute to persuade a reviewing court that Congress authorized the
agency to act. After all, as a constitutional matter, Congress does not operate like a sieve—inadvertently
spilling grants of massive new authorities. After West Virginia, Congress’s delegation of authority in
these types of cases can no longer be implicit; it must be explicit. Properly applied, West Virgina will stop
the flip-flopping and eliminate the incentives for the Executive Branch to engage in the type of pressure
campaigns we have seen on Title II. It will help improve administrative agency decisions, too, by
ensuring that they are driven by the facts, the law, and the record. It will allow the natural forces of
compromise to work their will on legislating, rather than winner-take-all party line votes at agencies. And
it will ensure that the legislative powers will remain with Congress unless and until the Legislature
decides to delegate them.
25
If that weren’t enough, today’s Order independently violates the Supreme Court’s command in
West Virginia through its unrestrained use of forbearance.
26
Although the FCC may forbear from parts of
Title II, the Order indiscriminately applies that authority to fundamentally rewrite the 1996 Act by line-
item vetoing more than a dozen provisions central to Title II’s legislative design. As multiple Supreme
Court decisions confirm, that unrestrained application of forbearance is illegitimate. Indeed, just last
year, the Supreme Court struck down the Biden Administration’s use of analogous waiver authority after
the Education Department tried to use it to wipe away student loan debt.
27
As a matter of statutory
construction and implied delegation, the FCC is not presumed to have the sweeping power to refashion
Title II into an entirely new legislative scheme by picking and choosing which parts of Title II will apply.
* * *
The FCC’s flip-flopping also informs how seriously one should take the Order’s policy
arguments. The FCC tries to dress up its latest power grab in a 400-plus page Order that offers a laundry
list of bogus justifications. Few of them rely on actual evidence. Virtually none point to real problems.
All fall apart under casual scrutiny. Indeed, it’s not even clear the FCC believes the reasons it offers today
for Title II.
24
West Virginia v. EPA, 142 S. Ct. 2587, 2605 (2022). See infra I.A.1-2.
25
See Letter from the Hons. Cathy McMorris Rodgers and Ted Cruz et al. to the Hon. Jessica Rosenworcel,
Chairwoman, FCC, at 2 (Apr.. 23, 2024) (“Congress’s decision to treat broadband Internet access as an information
service, rather than a telecommunications service, was a deliberate policy choice.”); Letter from the Hon. Josh
Gottheimer et al. to the Hon. Jessica Rosenworcel, Chairwoman, FCC, at 2 (Apr. 20, 2024) (“Given that there is no
threat of imminent harm requiring Commission action, we ask the Commission to defer action on the NPRM to
allow this legislative process to continue and to avoid imperiling important federal policy objectives.”).
26
See infra I.A.3.
27
Biden v. Nebraska, 143 S. Ct. 2355 (2023).
Federal Communications Commission FCC 24-52
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Today’s Order is not about “net neutrality.”
28
When we abandoned Title II in 2017, proponents of
greater government control flooded the zone with apocalyptic rhetoric. Media outlets and politicians
mindlessly parroted their claims. They predicted “the end of the Internet as we know it” and that “you’ll
get the Internet one word at a time.” Consumers would have to pay to reach websites. None of it
happened. Americans were subjected to one of the greatest hoaxes in regulatory history.
Nor is today’s Order about preventing Internet “gatekeepers” from squashing innovation and free
expression.
29
Again, check the receipts. After 2017, it was not the ISPs that abused their positions in the
Internet ecosystem. It was not the ISPs that blocked links to the New York Post’s Hunter Biden laptop
story, old Twitter did that. It was not the ISPs that just one day after lobbying the FCC on this Order
blocked all posts from a newspaper and removed all links to the outlet after it published a critical article,
Facebook did that.
30
It was not the ISPs that earlier this month blocked the links of California-based news
organizations from showing up in search results to protest a state law, Google did that.
31
And it was not
the ISPs that blocked Beeper Mini, an app that enabled interoperability between iOS and Android
messaging, Apple did that.
32
Since 2017, we have learned that the real abusers of gatekeeper power were not ISPs operating at
the physical layer, but Big Tech companies at the application layer. Perversely, today’s Order makes Big
Tech behemoths even stronger than before.
And today’s Order is not about correcting a market failure. Broadband access is more vibrant and
competitive than ever, no matter how you slice the reams of data. Americans benefited from lower prices,
faster speeds, broader and deeper coverage, increased competition, and accelerated Internet builds.
Here’s what the data show. Internet speeds are up 430% since 2017 on the fixed broadband side,
and they are up 647% on the mobile side. In real terms, the prices for Internet services have dropped by
about 9% since the beginning of 2018, according to BLS CPI data. On the mobile broadband side alone,
real prices have dropped by roughly 18% since 2017, according to BLS and industry data. And for the
most popular broadband speed tiers, real prices are down 54%, and for the fastest broadband speed tiers,
prices are down 55%, over the past 8 years, according to BLS and industry data.
33
* * *
The FCC realizes that the old justifications for Title II will no longer cut it. So, as if nothing ever
happened, as if the old predictions were not disproven, the agency invents new justifications. The FCC
throws whatever it can think of against the wall to see if anything sticks. The Order now claims Title II is
28
See infra II.A.1.
29
See infra II.A.3.
30
See Sherman Smith, Facebook Apologizes for Blocking Kansas Reflector, Then Expends Crackdown to Other
News Sites, Kansas Reflector (Apr. 5, 2024), https://kansasreflector.com/2024/04/05/facebook-apologizes-for-
blocking-kansas-reflector-then-expands-crackdown-to-other-news-sites/.
31
See Gerrit De Vynck and Laura Wagner, California Wants Big Tech to Pay for News. Google is Fighting Back
(Apr. 21, 2024), https://www.washingtonpost.com/technology/2024/04/21/google-blocks-california-news/.
32
See Emma Roth, FCC Commissioner Wants to Investigate Apple Over Beeper Mini Shutdown, The Verge (Feb. 12,
2024), https://www.theverge.com/2024/2/12/24071226/fcc-commissioner-brendan-carr-apple-beeper-mini.
33
See infra II.A.4; Statement of FCC Commissioner Brendan Carr, New Data Confirm What Americans Already
Know: The Internet Is Not Broken and President Biden’s Plan for Government Control Won’t “Fix It,” (Apr. 19,
2024), https://docs.fcc.gov/public/attachments/DOC-401950A1.pdf.
Federal Communications Commission FCC 24-52
8
necessary for national security, for public safety, for law enforcement, for pole attachments, for
accessibility, for privacy and cybersecurity—the list goes on and on.
But the FCC’s latest set of claims fare no better than those trotted out back in 2015. They are
simply new pretext to justify an old power grab.
Take national security.
34
The FCC has identified no gap in national security that Title II is
necessary to fill. Rather, the FCC record makes clear that Congress has already empowered agencies with
national security expertise—including the Departments of Homeland Security, Justice, Commerce, and
Treasury—to address these issues in the communications sector. Indeed, the Biden Administration’s own
filing in this proceeding confirms national security agencies already have and “exercise substantial
authorities with respect to the information and communications sectors.”
In particular, the Biden Administration already has the authority to prohibit entities controlled by
the Chinese Communist Party (CCP) from operating in the U.S. today. Indeed, the Commerce
Department codified one such set of authorities back in 2021. So Title II fills no gap in authority. Indeed,
as to those specific CCP-aligned companies, the FCC’s own database of ISPs shows that they are not
offering any broadband services that would be subject to Title II even after reclassification.
Or take consumer privacy.
35
The FTC already regulates ISPs and their privacy practices. Indeed,
at this very moment, broadband consumers benefit from the same set of federal privacy rules that protect
consumers across the economy. But those federal rules go away with respect to broadband if the FCC
votes for Title II. That is because, by law, the FTC loses 100% of its authority over any service that is
regulated by the FCC under Title II. In turn, the FCC’s Title II decision would leave broadband
consumers with no federal privacy rules to protect them because Congress prohibited the FCC from
applying its own privacy rules or any substantially similar ones to ISPs back in 2017. While the FCC
claims that there would still be some residual Section 222 statutory privacy provisions that could apply to
ISPs, that assertion is dubious at best given the 2017 law. So, far from filling a gap in consumer privacy
rules, an FCC decision to apply Title II to broadband would create one.
Or take cybersecurity.
36
Once again, the agency makes no serious attempt to argue that Title II is
necessary to promote cybersecurity. For one, Congress and the Executive Branch have already
formulated a comprehensive cybersecurity regime that is solidly grounded in existing law. That effort is
led, not by the FCC, but by the Cybersecurity & Infrastructure Security Agency, which is part of DHS.
Nothing in Title II gives the FCC any additional authorities when it comes to participating in the federal
government’s CISA-led process. For another, Title II does not authorize the FCC to adopt national
cybersecurity standards. Indeed, even under the FCC’s reading, Title II does not even apply to the vast
range of cyber targets, like cloud providers and tech platforms, further undermining any claim that Title II
is necessary to ensure America’s cybersecurity.
Or take network resiliency and outage reporting.
37
Here, too, the FCC makes no coherent case
for Title II advancing any of these interests. For one, the FCC already collects outage reports, operational
status, and restoration information from broadband service providers. For another, America’s broadband
networks are more robust and resilient than those in countries with far more heavy-handed or Title II-like
34
See infra II.B.1.
35
See infra II.B.2.
36
See infra II.B.1.
37
See infra II.B.3.
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21
indispensable to ordinary users as they navigate the Internet.”
113
While the Order cites the availability of
third-party DNS services as evidence that DNS is not “inextricably intertwined” with broadband,
114
that
does nothing to undermine the dispositive fact that DNS is offered as an integrated part of broadband that
ISPs offer. More than 90% of time,
115
users rely on the DNS provided by the ISP. Without DNS servers
preconfigured by the ISP, broadband service would be unusable out of the box, unless the user were
sophisticated enough to customize her router’s configuration. If you don’t believe me, see what happens
if you change your router’s DNS address. Your emails would not send, your browser would not load
websites, and your cat videos would not stream. DNS service is thus integrated into ISPs’ retail
broadband offerings and relevant to broadband’s status as an “information service.” And DNS falls
outside the exception for telecommunications system management because it is intended to benefit
consumers by facilitating web access, not to aid ISPs in managing their networks.
Caching, likewise, is an “information service” that is inextricably intertwined with broadband and
designed to enhance the consumer experience. Indeed, “[a]ll major ISPs cache content using caching
servers located within the ISP network,” and “[u]sers cannot directly opt out of” this caching
functionality; rather it is “inextricably linked” to providers’ delivery of online content.
116
As the
Restoring Internet Freedom Order correctly found, “[c]aching does much more than simply enable the
user to obtain more rapid retrieval of information through the network” by storing content closer to
customer locations; “caching depends on complex algorithms to determine what information to store
where and in what format.”
117
This information-processing functionality thus “enables and enhances
consumers’ access to and use of information online”—and, like DNS, caching is “provided as part and
parcel of the broadband Internet access service.”
118
Just as fixed broadband is an “information service,” so too is mobile broadband under Section
332 of the 1996 Act. A “commercial mobile service,” as relevant here, is any mobile service that “makes
interconnected service available.”
119
An “interconnected service” refers to a “service that is
interconnected with the public switched network”
120
and “gives subscribers the capability to communicate
to or receive communication from all other users on the public switched network.”
121
The “public
switched network” means the public switched telephone network—that is, the “common carrier switched
network . . . that use[s] the North American Numbering Plan in connection with the provision of switched
services.”
122
And “private mobile service” is the reverse of commercial mobile service: “any mobile
113
Restoring Internet Freedom Order at para. 34 (2018) (quoting Comments of AT&T Services Inc., WC Docket
No. 17- 108, at 74 (July 17, 2017)).
114
Order at para. 148.
115
See Roger Entner, Don Kellogg & Brett Clark, Recon Analytics, Broadband Survey Results at 2 (attached to
USTelecom Reply Comments, WC Docket No. 23-320 (Jan. 17, 2024)),
https://www.fcc.gov/ecfs/document/10117636723266/3.
116
Rysavy Decl. at paras. 17-18.
117
Restoring Internet Freedom Order at para. 41 (quoting Comments of the Information Technology and Innovation
Foundation, WC Docket No. 17-108, at 74 (July 17, 2017)).
118
Restoring Internet Freedom Order at para. 42.
119
47 U.S.C. § 332(d)(1).
120
47 U.S.C. § 332(d)(2).
121
47 C.F.R. § 20.3.
122
47 C.F.R. § 20.3.
Federal Communications Commission FCC 24-52
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While misrepresenting Title II’s benefits, the Order takes an ostrich-like approach to its
documented harms. It is a textbook example of “arbitrary and capricious” agency action to reach a
predetermined outcome.
In the end, though, I remain optimistic. I am confident that we will right the ship. And I am
certain that the courts will overturn this unlawful power grab. I dissent.
I. THE FCC LACKS STATUTORY AUTHORITY TO RECLASSIFY BROADBAND AS A
TITLE II SERVICE.
A. The Major Questions Doctrine Prohibits the FCC from Reclassifying Broadband
Under Title II
In the inevitable appeal of today’s Order, the reviewing court will ask a fundamental but
straightforward question: Did Congress authorize the FCC to impose Title II utility-style regulations on
broadband Internet access service? The court will start there for a simple reason. In Article I of the
Constitution, “the People” vested “[a]ll” federal “legislative powers . . . in Congress.”
39
If Congress has
not lawfully delegated a power to an agency, then it remains for Congress, not an unelected administrative
agency, to decide whether to exercise that legislative power.
On appeal, the FCC will argue that Congress has provided it with the requisite authority. And the
agency will undoubtedly seek refuge in prior judicial rulings—whether Brand X, Mozilla, or U.S.
Telecom—that upheld the FCC’s assertion of statutory authority to classify broadband as a Title I or Title
II service. In those rulings, the courts applied Chevron’s familiar two-step test to affirm, in the
circumstances particular to those cases, what the courts found to be the FCC’s reasonable interpretation of
an ambiguous statute.
40
But those cases provide no support for the FCC’s position today because Chevron is not the
standard that will apply. In 2022, the Supreme Court formally adopted the “major questions doctrine”
(MQD) in its seminal West Virginia v. EPA decision.
41
As articulated in West Virginia, an agency exceeds
its statutory bounds when it renders a “decision of vast economic or political significance” without “clear
congressional authorization” for the power it asserts.
42
Applied here, the MQD requires the FCC to
possess an unambiguous congressional delegation of power, through a clear grant of statutory authority, to
regulate ISPs as common carriers under Title II.
Whether sounding as a “clear statement” canon of statutory construction or a substantive
prohibition against the delegation of legislative power, the MQD reflects a bedrock principle of
constitutional law. Administrative agencies like the FCC do not have sub silentio authority to act as
roving policymakers, with the unbounded discretion to enact economy-altering regulations at whim.
Rather, agencies “have only those powers given to them by Congress, and enabling legislation is
generally not an open book to which the agency [may] add pages and change the plot line.”
43
Agencies
must interpret statutes through the lens of separation of powers and “a practical understanding of
39
U.S. Const. Art. I. § 1; U.S. Const. preamble.
40
National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005); Mozilla Corp. v. FCC, 940 F.
3d 1 (D.C. Cir. 2018); U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 422 (D.C. Cir. 2017) (U.S. Telecom II); United
States Telecom Association v. FCC, 825 F.3d 674 (D.C. Cir. 2016) (U.S. Telecom I); Verizon v. FCC, 740 F.3d 623
(D.C. Cir. 2014); see Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
41
West Virginia v. EPA, 142 S. Ct. 2587, 2605 (2022).
42
West Virginia, 142 S. Ct. at 2605; see also Biden v. Nebraska, 143 S. Ct. 2355, 2375 (2023).
43
West Virginia, 142 S. Ct. at 2609 (cleaned up).
Federal Communications Commission FCC 24-52
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any regulation, the MQD precludes the FCC from using that ambiguous language to justify today’s
decision of “vast economic or political significance.”
Third, the Order’s reliance on stale data and outcome-driven analysis sinks its ability to rely on
Section 706(b), which states that the FCC shall “accelerate deployment” of broadband “by removing
barriers to infrastructure investment and by promoting competition in the telecommunications market” if
the FCC determines broadband is not being deployed to Americans in a timely and reasonable manner.
180
The FCC’s Section 706 Report, conveniently released weeks before today’s Order, made a negative
finding about the pace, cadence, speed of broadband deployment.
181
As I explained in considerable detail,
182
these factual findings defy the impressive progress in
broadband deployment—whether fiber, fixed wireless, 5G, or high-speed satellite—that every American
consumer has seen with their own eyes since 2017. To accomplish this, the Section 706 Report rests on
outdated and error-ridden datasets that understate the scope and scale of broadband availability, even
though better information was at the FCC’s fingertips. The Section 706 Report also inflated the number
of purportedly unserved Americans by excluding high-speed satellite broadband covering more than 99%
of the United States and by relying on a more demanding speed benchmark (100/20 Mbps) for the first
time to effectively move the goalposts.
Finally, assuming the FCC had rulemaking authority under Section 706, and assuming further
that it validly made a negative determination under Section 706(b), the Order fails to provide specific
explanations, based on the record, how utility-style regulation would “encourage the deployment on a
reasonable and timely basis of advanced telecommunications capability to all Americans”
183
or
“accelerate deployment of such capability by removing barriers to infrastructure investment and by
promoting competition in the telecommunications market.”
184
Indeed, concluding that monopoly-style
regulation “remov[e]s barriers to infrastructure investment” and “promot[es] competition” stretches words
to their breaking point.
As noted below,
185
Title II threatens investment and competition by saddling providers with new
costs and regulatory uncertainty. And while the Order tries to nitpick the reams of real-world economic
data, based on our natural experiment before and after Title II, the Order offers no affirmative finding that
the opposite would be true. In other words, the Order makes no positive finding that Title II will lead to
more infrastructure investment. Indeed, in paragraph after paragraph discussing Title II’s effect on
investment after 2017, the most the Order can say is that the empirical evidence is “inconclusive.”
186
180
47 U.S.C. § 1302(b).
181
See Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a
Reasonable and Timely Fashion, Report, FCC 24-27, GN Docket No. 22-270 (Mar. 18, 2024) (Section 706 Report).
182
Dissenting Statement of Commissioner Brendan Carr, Inquiry Concerning the Deployment of Advanced
Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, Section 706 Report, GN
Docket No. 22-270 (Mar. 14, 2024), https://docs.fcc.gov/public/attachments/DOC-401205A3.pdf.
183
47 U.S.C. § 1302(a).
184
47 U.S.C. § 1302(b).
185
See infra II.A.2.
186
Order at para. 288.
Federal Communications Commission FCC 24-52
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Experts across ideological and partisan lines agree. Two former Solicitors General from the
Obama Administration—individuals who support Title II regulation of broadband as a policy matter—
have concluded “[t]here is no doubt” that whether broadband may be classified as a Title II service
“presents a major question,” and “the Commission lacks clear statutory authority to reclassify broadband
under Title II.”
49
Finally, the Order independently violates the MQD through its unrestrained use of forbearance.
Although Section 10 of the 1996 Act allows the FCC to forbear from provisions of Title II, the Order
indiscriminately applies that authority to fundamentally rewrite the 1996 Act by excising more than a
dozen provisions central to Title II’s legislative design. Two Supreme Court decisions confirm that the
Order’s application of forbearance is illegitimate. As a matter of statutory construction and implied
delegation, the FCC is not presumed to have the sweeping power to refashion Title II into an entirely new
legislative scheme by picking and choosing which sections will apply, with the resulting economic impact
in the billions of dollars.
1. The Order Decides a Policy Question of “Vast Economic and Political
Significance”
The FCC’s decision to impose Title II regulation on broadband constitutes a major question. As
the D.C. Circuit confirmed in its 2014 Verizon decision, the “regulation of broadband Internet providers
certainly involves decisions of great ‘economic and political significance.’”
50
As then-Judge Kavanaugh
observed in 2017, it is “indisputable” that Title II presents a major question, and “any other conclusion
would fail the straight-face test.”
51
And as Judge Millett wrote in 2019, this is an area “fraught with
political contest.”
52
Those conclusions are only more true today. Over the last 25 years, the Supreme Court’s MQD
decisions and their forerunners have considered various criteria under which agency action touches on
policy questions of “vast economic and political significance.” All of these criteria are present here.
Consider Title II’s political significance.
53
So-called “net neutrality” is perhaps the most
contentious political issue that the modern FCC has ever confronted. No wonder President Biden, like
President Obama before him, took the extraordinary step to pressure the FCC—an independent agency
that is designed to operate outside undue political influence from the Executive Branch—to reinstate Title
II regulation of broadband.
54
No wonder that President Obama’s Director of the National Economic
Council personally paid the FCC Chair a visit back in 2014 to discuss this issue. And no wonder that the
FCC’s previous Title II proceedings were the most active in the agency’s history, receiving millions of
comments. But Congress has evaluated and rejected many bills that would have given the FCC authority
49
Donald B. Verrilli, Jr. & Ian Heath Gershengorn, Title II “Net Neutrality” Broadband Rules Would Breach Major
Questions Doctrine, at 10, 13 (Sept. 20, 2023), https://aboutblaw.com/bazq.
50
Verizon, 740 F.3d at 639 (D.C. Cir. 2014) (quoting Brown & Williamson, 529 U.S. at 160).
51
U.S. Telecom II, 855 F.3d at 417 (Kavanagh, J., dissenting from denial of rehearing en banc).
52
Mozilla, 940 F. 3d at 95 (Millett, J., concurring).
53
Gonzales v. Oregon, 546 U.S. 243, 267 (2006) (observing that the Attorney General’s ban on prescribing drugs for
physician-assisted suicide implicated a “subject of an earnest and profound debate across the country”).
54
Executive Order on Promoting Competition in the American Economy, § 5(l)(2) (July 9, 2021).
Federal Communications Commission FCC 24-52
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to regulate broadband as a Title II, common carrier service.
55
This is the quintessential issue best left to
Congress to decide.
Or consider first the scope and scale of expanded FCC powers over the communications
industry.
56
Title II does not merely regulate more at the margins. It regulates virtually everything. And
Title II does not create incremental liability risk. It makes ISPs potentially liable for everything they do.
The Order’s application of Title II entails the following:
• Vague standards through amorphous “reasonableness” and “nondiscrimination” requirements
that encourage anyone to complain about almost anything;
57
• Unlimited regulation through new rulemaking powers to implement any provision in Title II,
including the “reasonableness” and “nondiscrimination” requirements;
58
• Unlimited punishment through new enforcement powers that the FCC can apply whenever it
wants;
59
• Endless lawsuits through a new private right of action and money damages for any violation in
Title II;
60
and
• Government permission for ISPs to enter the broadband market.
61
But it does not end there. Using its Title II authority, the Order adopts the Internet Conduct Rule,
which makes almost every aspect of an ISP’s network management potentially illegal, subject to a
bureaucrat’s “case-by-case” review of “a non-exhaustive list of factors.”
62
Today, the Order says the
following practices might be illegal, without saying when:
• Free and sponsored data plans, like when a wireless provider offers Netflix without counting
against data caps;
63
55
U.S. Telecom II, 855 F.3d at 417 (Kavanagh, J., dissenting from denial of rehearing en banc) (citing H.R. 5252,
109th Cong. (2006); H.R. 5273, 109th Cong. (2006); H.R. 5417, 109th Cong. (2006); S. 2360, 109th Cong. (2006);
S. 2686, 109th Cong. (2006); S. 2917, 109th Cong. (2006); S. 215, 110th Cong. (2007); H.R. 5353, 110th Cong.
(2008); H.R. 5994, 110th Cong. (2008); H.R. 3458, 111th Cong. (2009); S. 74, 112th Cong. (2011); S. 3703, 112th
Cong. (2012); H.R. 2666, 114th Cong. (2016)).
56
West Virginia, 142 S. Ct. at 2609 (observing that EPA regulation to effectively shift energy protection away from
coal-fired plants implicated “unprecedented power over American industry”); MCI Telecomms. Corp. v. AT&T Co.,
512 U.S. 218, 231 (1994) (“It is highly unlikely that Congress would leave the determination of whether an industry
will be entirely, or even substantially, rate-regulated to agency discretion …”).
57
47 U.S.C. §§ 201(b), 202(a).
58
47 U.S.C. § 201(b).
59
47 U.S.C. §§ 208-209.
60
47 U.S.C. §§ 206-207.
61
47 U.S.C. § 214(a).
62
Order at para. 513.
63
Order at para. 533.
Federal Communications Commission FCC 24-52
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• 5G network slicing, an innovative technology to offer customized connectivity for public-safety,
cybersecurity, autonomous vehicles, automated factories, and other applications that have unique
speed, capacity, or latency requirements;
64
• Usage-based pricing, which allows ISPs to offer cheaper plans to consumers with limited data
needs;
65
• Techniques to deliver streaming mobile video, using bitrate management techniques to provide
high-quality resolution on small screens without overloading the network;
66
and
• Wholesale practices, which involve no direct relationship with consumers.
67
The Order’s pervasive ambiguity on these issues is compounded by the FCC’s decision to insert
language, at the eleventh hour, to expand the definition of “throttling” to cover plans that offer faster
speeds but leave no consumer worse off.
68
This novel idea, barely if ever contemplated in the NPRM,
creates a new maze of internal contradictions and ambiguities. For one, the faster-is-throttling rule runs
headlong into the no-throttling rule as traditionally understood, which requires that some other traffic
streams be made worse off—i.e., “degraded” or “impaired.”
69
But even as advocates for faster-is-
throttling concede, network resources are “not a zero-sum game.”
70
In other words, users on the network
often will see no impairment or degradation simply because others contract for a guaranteed quality-of-
service (QoS). For another, the faster-is-throttling rule drives a truck through the no-paid-prioritization
rule, which prohibits favoring traffic only when it involves (a) affiliated content or (b) paid content.
71
Through a flick of the wrist at the last minute, the FCC suddenly throws another wrench into the Title II
Rube Goldberg machine.
And it does not end there, for the FCC envisions more Title II rulemakings. While the Order does
not offer the full list, it gives us a sneak preview of what ISPs might be forced to do in the future:
• Financial restrictions through ownership limitations that force mobile providers, especially
smaller ones, to divest critical investment from overseas;
72
• Data restrictions that would cover only ISPs while leaving Big Tech, data brokers, and other
privacy abusers regulated under a different set of rules;
73
and
64
Order at paras. 199-203.
65
Order at para. 542.
66
Order at paras. 196-97, 500-01.
67
Order at para. 193.
68
Order at paras. 499, 500.
69
Order at para. 498.
70
Letter from Scott Jordan & Jon Peha, WC Docket No. 23-320, at 4 & n.24 (Apr. 19, 2024).
71
Order at para. 503.
72
Order at para. 438.
73
Order at para. 359.
Federal Communications Commission FCC 24-52
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• Government approvals for mobile ISPs to offer service by obtaining authorizations traditionally
limited to subsea cables and other international services.
74
Or consider the Order’s sweep on private parties.
75
The United States has more than 2,000 ISPs.
As then-Judge Kavanaugh observed, Title II regulation “will affect every Internet service provider, every
Internet content provider, and every Internet consumer.”
76
But the Order goes even further than the 2015
Title II Order, asserting Title II authority to regulate wholesalers (and potentially other upstream entities
that offer economic inputs in the broader supply chain) that interact with broadband providers.
77
Or consider the Order’s economic impact to a “significant portion of the U.S. economy.”
78
The
U.S. broadband market, by some accounts, generates at least $150 billion in annual revenue.
79
And one
study estimates that “the persistent prospect of Title II policy reduced investment by about 10%, on
average, between 2011 and 2020.”
80
That reduction in investment, in turn, translated into tens of billions
in foregone broadband capital spending, a $1.45 trillion loss in GDP over ten years, and “an annual loss to
the nation of about 81,500 information sector and 195,600 total jobs.”
81
Another study projected a 20%
reduction in capital spending thanks to Title II.
82
In response, the FCC asserts that broad application of forbearance authority mitigates the Order’s
economic impact and thus renders the MQD inapplicable.
83
That is wrong twice over. Even with
forbearance, the Order affects a “significant portion of the U.S. economy” by opening the door to plenary
rulemaking and enforcement authority over the broadband industry. And, independently, the Order’s
unrestrained use of forbearance actually confirms why it violates the MQD, as discussed below.
84
74
Order at para. 344 & n.1386.
75
Nat’l Federation of Independent Business v. OSHA, 142 S. Ct. 661 (2022) (observing that OSHA vaccine mandate
would cover roughly 84 million workers); Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) (observing that
EPA limits on greenhouse gas emissions would have “require[d] permits for the construction and modification of
tens of thousands, and the operation of millions, of small sources nationwide”).
76
U.S. Telecom II, 855 F.3d at 417 (Kavanagh, J., dissenting from denial of rehearing en banc).
77
See Order at para. 193.
78
Brown & Williamson, 529 U.S. at 160; see also Alabama Association of Realtors v. Dept of HHS, 141 S. Ct. 2485
(2021) (observing that the HHS eviction moratorium on rental properties had an economic impact of $50 billion).
79
See IBISWorld, Internet Service Providers in the US – Market Size (Sept. 11, 2023),
https://www.ibisworld.com/industry-statistics/market-size/internet-service-providers-unitedstates/ (estimating size of
U.S. broadband market by total annual revenue).
80
George S. Ford, Investment in the Virtuous Cycle: Theory and Empirics, 22-23 (Dec. 12, 2023), https://phoenix-
center.org/pcpp/PCPP62Final.pdf.
81
Id.
82
George S. Ford, Regulation and Investment in the U.S. Telecommunications Industry, 50 Applied Economics
6073–6084 (2018), https://www.fcc.gov/ecfs/document/1214841324432/3; see also George S. Ford, In Response to
the FCC …, Phoenix Center Perspectives 24-04 (Apr. 18, 2024), https://www.phoenix-
center.org/perspectives/Perspective24-04Final.pdf (“As detailed here, the Commission’s effort to discredit my earlier
work [in the draft Order] on investment through replication falls flat. … Properly analyzed, including estimation
using the method of Synthetic Counterfactuals as recommended in the Draft Order, the revised [Bureau of Economic
Analysis] data reveals large and negative investment effects.”).
83
Order at para. 257.
84
See infra I.A.3.
Federal Communications Commission FCC 24-52
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Likewise, the FCC asserts that “[w]e do not think the rules we adopt today have the extraordinary
economic and political effect required.”
85
But this ostrich-like claim, one that will be entitled to no
deference, is not credible. The FCC itself asserts in the Order that these regulations are vital in its view to
advancing everything from national security, law enforcement, cybersecurity, public safety, network
resiliency, consumer privacy and data security, access to broadband itself, access for people with
disabilities, and free expression on the Internet. Title II’s proponents have furthered argued that common
carriage is “one of the most important … legal frameworks in human history”
86
and potentially
“transformative” for society.
87
The same agency or outside entities that put these claims forward cannot
now be heard to argue that this decision lacks the relevant significance for MQD purposes.
Or consider the FCC’s claim of comparative expertise.
88
As discussed in the sections below, the
FCC can lay no claim as the expert agency in many of the areas for which it allegedly needs Title II—
whether national security, law enforcement, cybersecurity, consumer protection, privacy, or data security.
Or consider the Order’s “claim to discover in a long-extant statute an unheralded power.”
89
The
FCC has regulated broadband under Title I for all but two years since the 1996 Act. We have done so
repeatedly on a bipartisan basis—rejecting Title II both as a general matter (1998, 2010, 2017, 2020)
90
and in the technology-specific context of wireline facilities (2005),
91
cable modem services (2005),
92
broadband over power lines (2006),
93
and wireless broadband (2007).
94
The FCC’s claim that Congress
implicitly delegated the agency authority to heavily regulate broadband as a Title II utility service all the
85
Order at para. 257.
86
Comments of Free Press, WC Docket No. 23-320, at 2 (Dec. 14, 2023).
87
Comments of Public Knowledge, WC Docket No. 23-320, at 46 (Dec. 14, 2023).
88
Biden v. Missouri, 142 S. Ct. at 653.
89
West Virginia, 142 S. Ct. at 2610 (observing that the agency “claim[ed] to discover in a long-extant statute an
unheralded power”).
90
Restoring Internet Freedom, Order on Remand, 35 FCC Rcd 12328 (2020) (2020 Restoring Internet Freedom
Remand Order); Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd 311
(2017); Preserving the Open Internet, Report and Order, 25 FCC Rcd 17905, n.381 (2010) (“The open Internet rules
that we adopt today do not regulate Internet applications, much less impose Title II (i.e., common carrier) regulation
on such applications”); Federal-State Joint Board on Universal Service, Report to Congress, 13 FCC Rcd 11501
(1998) (Stevens Report) (classifying Internet access service).
91
Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., Report and Order
and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, para. 14 (2005).
92
Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over Cable
Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities,
GN Docket No. 00-185, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC
Rcd 4798 (2002) (Cable Modem Order) (classifying broadband Internet access service over cable systems), aff’d
sub nom. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
93
United Power Line Council’s Petition for Declaratory Ruling Regarding the Classification of Broadband over
Power Line Internet Access Service as an Information Service, WC Docket No. 06-10, Memorandum Opinion and
Order, 21 FCC Rcd 13281 (2006) (classifying broadband Internet access service over power lines).
94
Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT Docket No.
07-53, Declaratory Ruling, 22 FCC Rcd 5901 (2007) (Wireline Broadband Internet Access Services Order)
(classifying broadband Internet access service over wireless networks).
Federal Communications Commission FCC 24-52
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way back in 1996—in a deregulatory enactment—but the FCC simply did not discover that authority until
decades later, further confirms that the Commission’s decision triggers the MQD.
95
And as discussed below, the 1996 Act’s contemporaneous history is similarly clear: before and
after passing the 1996 Act, Congress repeatedly rejected the unheralded power that the Order asserts,
consistent with a virtually unbroken line of precedent treating broadband as a Title I service.
2. Congress Did Not Clearly Authorize the FCC to Regulate Broadband as
Public Utility.
The MQD’s second prong requires an administrative agency to establish “clear congressional
authorization” to regulate in the manner at issue.
96
This part of the inquiry serves a vital purpose. It
ensures that the vast legislative power that the Framers vested in Congress remains with Congress unless
and until Congress decides to delegate it. And it ensures that agencies like the FCC cannot reach up and
seize power that belongs to the people’s elected representatives. This is one way in which the MQD
marks a sea change in administrative law. When it comes major questions, administrative agencies can no
longer rely on implicit or ambiguous provisions of law to make the case that Congress empowered them
to act.
This portion of the MQD inquiry also operates to avoid the type of regulatory flip-flopping on
major questions that Chevron would have otherwise allowed—a whiplashing on matters of vast
significance that serves no legitimate long-term interest. That whiplashing with every change in political
administration, in turn, offers persuasive evidence that Title II is properly within Congress’s remit, not the
FCC’s.
The FCC puts forward just two main arguments for why its decision today satisfies West Virgnia’s
“clear congressional authorization” standard. Except the FCC does not get out of the starting blocks with
either argument. In both cases, the FCC simply argues against the Court’s holding in West Virginia rather
than showing why the FCC has satisfied it in the Order.
First, the FCC pretends that the Supreme Court never decided West Virginia. It argues that
Congress has provided the FCC with clear congressional authorization because the D.C. Circuit’s decision
in U.S. Telecom relied on the Supreme Court’s 2005 opinion in Brand X, which upheld the FCC’s
authority to classify broadband as a Title I service.
97
But Brand X determined that the relevant statutory
language is ambiguous.
98
Bootstrapping your way back to Brand X is fine as far as it goes, but it just does
not get the FCC where it wants. Neither U.S. Telecom nor Brand X stand for the proposition that
95
The 1998 Advanced Services Order is not to the contrary, and broadband today presents a more straightforward
instance of an information service. In the Advanced Services Order, the FCC considered digital subscriber line
(DSL) technology, which allowed “transmission of data over the copper loop at vastly higher speeds than those used
for voice telephony or analog data transmission” between each “subscriber’s premises” and “the telephone
company’s central office.” Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC
Docket No. 98-147, Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 24012,
24026–27, para. 29 (1998). For this service, a DSL access multiplexer would direct the traffic onto a carrier’s
packet-switched data network, where it could then be routed to a “location selected by the customer” like a “gateway
to a . . . set of networks, like the Internet.” Id. at paras. 30–31. The FCC then classified only the last-mile
transmission service between the end user and the ISP as a telecommunications service, while observing that the
Internet access service itself was still an information service. Id. at para. 36.
96
West Virginia, 142 S. Ct. at 2609.
97
Order at para. 264.
98
Brand X, 545 U.S. at 989-997.
Federal Communications Commission FCC 24-52
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Congress provided the FCC with clear congressional authorization as required by the Court’s 2022 We st
Virgina decision.
Quite the opposite. The FCC can hug Brand X all it wants, but after West Virginia it operates as
an anchor not a life preserver for the FCC’s position here today. Brand X forecloses any FCC assertion
that it has the requisite clear congressional authority because the Court determined that the statute is
ambiguous on the classification question at issue. In other words, for this FCC argument to prevail, the
agency would need the Supreme Court to reverse West Virginia and go all the way back to the Chevron
standard.
Second, the FCC lodges an argument that would not only require the Supreme Court to overturn
West Virginia, but would also require the Court to confer even more discretion on administrative agencies
than even Chevron allows. Specifically, the FCC argues that, as a general matter, it is not controversial to
read the Communications Act as giving the FCC power to classify some services as Title I services and
others as Title II services.
99
Indeed, the FCC says, the Communications Act must be read as giving the
FCC that general authority. It necessarily flows from there, the FCC asserts, that the Communications
Act must also be read as giving the FCC authority to regulate broadband as a utility service under Title II
because that regulation flows from the FCC’s classification decision. In other words, to hear the FCC tell
it, Congress has provided the FCC with clear congressional authorization to classify services and it is
merely exercising that power here.
100
But that bit of sophistry mischaracterizes Supreme Court precedent. The relevant inquiry under
West Virginia is not whether the FCC possess authority as a general manner to classify services. The
question is whether, in the category of major questions cases to which MQD applies, the agency has
“clear congressional authorization for the power it claims” or, as stated elsewhere in the decision, “‘clear
congressional authorization’ to regulate in that manner.”
101
In other words, the question required by West
Virginia is whether Congress provided the FCC with clear congressional authorization to subject
broadband to the heavy-handed regulatory regime adopted here.
Think about it. If the FCC’s position were correct, and the relevant question of legal authority
were simply a matter of deciding what statutory terms mean, then an agency could use a statute that
authorized it to regulate cars as a basis for regulating airplanes. Under the FCC’s theory, that automobile
agency must necessarily have authority to determine what constitutes a car and therefore, the FCC’s
argument would go, Congress has provided clear congressional authorization for it to label anything,
whether airplanes, cars, or boats.
And if the FCC’s position were correct, then MQD would be a dead letter, for any agency could
invoke the power to interpret the law to circumvent the MQD. After all, Chevron presumes that, in the
ordinary course, agencies possess delegated authority from Congress to give reasonable interpretations to
ambiguous statutes. But the MQD operates as an exception to Chevron. So, whatever implied delegated
authority an agency may have under normal circumstances to interpret ambiguous statutes in a reasonable
99
Order at para. 264.
100
The FCC relatedly argues that if the MQD applies to this Title II decision today, then the MQD should also have
applied to the Restoring Internet Freedom Order. See Order at para. 254 & n.1063. Whatever the merits of that
claim, it provides no basis for evading MQD review in this case. In any event, the Order’s use of forbearance
distinguishes it under the MQD. Forbearing from a statutory consequence (as is the case here) is decidedly different
for MQD purposes than deciding to leave a service in its status quo deregulatory position (as was the case in the
Restoring Internet Freedom Order).
101
West Virginia, 142 S. Ct. at 2609 (cleaned up).
Federal Communications Commission FCC 24-52
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fashion, that delegated authority is no longer presumed to exist when the agency asserts powers of “vast
economic and political significance.”
And if the FCC’s position were correct, the Supreme Court’s specific MQD holdings would make
little sense. The FDA’s authority to interpret the words “drugs” and “devices” would have conferred
power to regulate and ban tobacco, contrary to Brown & Williamson.
102
The EPA’s authority to interpret
the term “air pollutants” would have conferred power to regulate greenhouse gases, contrary to Utility
Air.
103
The CDC’s authority to adopt measures “necessary to prevent the ... spread of” disease would
have conferred power to issue a nationwide eviction moratorium on residential properties, contrary to
Alabama Association of Realtors.
104
In particular, the FCC’s position cannot be squared with West Virginia. Indeed, the FCC presents
the same argument that the EPA ran in that case. There, the EPA argued that Congress clearly authorized
it to establish emissions caps at a level reflecting, in the statute’s language, “the application of the best
system of emission reduction.”
105
And the EPA argued that its generation shifting regulations were
simply one such system. The Court rejected this argument out of hand, explaining that EPA failed to
point to clear congressional authorization to regulate generation shifting.
Nor can the FCC’s position be squared with Chevron. Even under Chevron, the question is not
whether a statute is clear as a general matter and, whether, in turn, it follows that the agency is entitled to
deference. The question in Chevron is whether the statute is clear or ambiguous as applied to and in the
context of a particular assertion of agency power over a specific subject. Chevron rejected the notion that
courts should define congressional intent at a high level of generality. Instead, the Court indicated that
the proper inquiry is whether Congress spoke “directly” to the “precise question at issue.”
106
To say it another way, the relevant question is not whether the FCC has the abstract authority to
interpret statutes or classify some services, but whether it has the precise authority to interpret the precise
statutory provisions at issue in precisely the way it has done. That is to say, the question is “whether
Congress in fact meant to confer the power the agency has asserted”
107
—imposing massive regulatory
controls over the broadband industry, through a Frankenstein scheme that uses forbearance to pick and
choose what statutory provisions will apply going forward.
The FCC does not clearly have such power. As discussed below, the statute’s text, legislative
intent, and regulatory history indicate that if Congress clearly intended anything it was to keep broadband
a lightly regulated Title I service. But even if those authorities were ambiguous, the Order would still fail
under the MQD, for mere ambiguity—indeed, even a plausible textual basis—is not enough to give the
FCC the massive powers it claims here.
a. Broadband Is an Information Service Under the 1996 Act’s Text and History.
1. Start with the statute. The Telecommunications Act of 1996 establishes two mutually
exclusive categories of regulation over communications technologies. On one end are lightly regulated
“information services” (Title I), which involve the “offering of a capability for generating, acquiring,
102
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).
103
Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014).
104
Alabama Ass’n of Realtors v. Dep’t of HHS, 141 S. Ct. 2485 (2021).
105
West Virginia, 142 S. Ct. at 2601.
106
Chevron, 467 U.S. 837, 842-43.
107
West Virginia, 142 S. Ct. at 2608.
Federal Communications Commission FCC 24-52
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safety represents one of the most obvious applications of network slicing,
350
another innovation the Order
would threaten to make illegal in the retail context. Prioritizing public safety is no different in concept
than allowing an ambulance to bypass traffic congestion to get to the hospital.
Stripped of a single example that proved nothing at all, the Order cannot point to a public-safety
consideration that Title II would improve:
• Not outage reporting in the Disaster Information Reporting System (DIRS), which the FCC
extended to ISPs, without Title II, to collect outage reports, operational status, and restoration
information;
351
• Not the Wireless Emergency Alert (WEA) program, which is voluntary by statute and already
commands participation from the three major wireless carriers;
352
• Not 911 outrage reporting, which already applies to cable, satellite, wireless and wireline
systems;
353
• Not network resiliency and reliability standards, which the FCC made mandatory on wireless
carriers a few years ago;
354
• And not disability access during emergencies, which is covered in the Digital Equity Order’s
nebulous rules over ISPs.
355
At bottom, resilient commercial networks and reliable public-safety systems depend on
investment and innovation. Thanks to massive investment over the last six years, America’s broadband
networks are more robust and resilient than ever, especially when compared to networks in countries with
far more heavy-handed or Title II-like regulatory regimes. Just look at Europe. When COVID-19 hit and
Internet traffic levels suddenly surged to unprecedented levels, median network speeds in America
exceeded those in the Old World by 83%.
356
Nothing would impair public safety, resiliency, or reliability
more than reducing private investment in American networks—which is precisely what Title II threatens
to do.
350
See Karen Schulz, Verizon Accelerates Network Slicing Technology with New Public Safety Use Case, Verizon
(Nov. 28, 2023), https://www.verizon.com/about/news/network-slicing-technology-public-safety.
351
See Resilient Networks et al., Second Report and Order and Second Further Notice of Proposed Rulemaking, PS
Docket No. 21-346 et al., FCC 24-5, at para. 10 (2024) (requiring “cable communications, wireline, wireless, and
interconnected VoIP providers (subject providers) to report their infrastructure status information in DIRS daily
when the Commission activates DIRS in geographic areas in which they provide service”).
352
See Warning, Alert, and Response Network Act, Title VI of the Security and Accountability for Every Port Act of
2006, Pub. L. No. 109-347, 120 Stat. 1884 (2006) (WARN Act); 47 U.S.C. § 1201(a); 47 C.F.R. § 10.10(d).
353
47 C.F.R. § 4.9.
354
See Resilient Networks et al., Report and Order and Further Notice of Proposed Rulemaking, 37 FCC Rcd 8059,
at para. 10 (2022).
355
Digital Equity Order at para. 102.
356
Anna-Maria Kovacs, U.S. Broadband Networks Rise to the Challenge of Surging Traffic During the Pandemic, at
3 (June 2020), https://georgetown.app.box.com/s/8e76udzd1ic0pyg42fqsc96r1yzkz1jf.
Federal Communications Commission FCC 24-52
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indispensable to ordinary users as they navigate the Internet.”
113
While the Order cites the availability of
third-party DNS services as evidence that DNS is not “inextricably intertwined” with broadband,
114
that
does nothing to undermine the dispositive fact that DNS is offered as an integrated part of broadband that
ISPs offer. More than 90% of time,
115
users rely on the DNS provided by the ISP. Without DNS servers
preconfigured by the ISP, broadband service would be unusable out of the box, unless the user were
sophisticated enough to customize her router’s configuration. If you don’t believe me, see what happens
if you change your router’s DNS address. Your emails would not send, your browser would not load
websites, and your cat videos would not stream. DNS service is thus integrated into ISPs’ retail
broadband offerings and relevant to broadband’s status as an “information service.” And DNS falls
outside the exception for telecommunications system management because it is intended to benefit
consumers by facilitating web access, not to aid ISPs in managing their networks.
Caching, likewise, is an “information service” that is inextricably intertwined with broadband and
designed to enhance the consumer experience. Indeed, “[a]ll major ISPs cache content using caching
servers located within the ISP network,” and “[u]sers cannot directly opt out of” this caching
functionality; rather it is “inextricably linked” to providers’ delivery of online content.
116
As the
Restoring Internet Freedom Order correctly found, “[c]aching does much more than simply enable the
user to obtain more rapid retrieval of information through the network” by storing content closer to
customer locations; “caching depends on complex algorithms to determine what information to store
where and in what format.”
117
This information-processing functionality thus “enables and enhances
consumers’ access to and use of information online”—and, like DNS, caching is “provided as part and
parcel of the broadband Internet access service.”
118
Just as fixed broadband is an “information service,” so too is mobile broadband under Section
332 of the 1996 Act. A “commercial mobile service,” as relevant here, is any mobile service that “makes
interconnected service available.”
119
An “interconnected service” refers to a “service that is
interconnected with the public switched network”
120
and “gives subscribers the capability to communicate
to or receive communication from all other users on the public switched network.”
121
The “public
switched network” means the public switched telephone network—that is, the “common carrier switched
network . . . that use[s] the North American Numbering Plan in connection with the provision of switched
services.”
122
And “private mobile service” is the reverse of commercial mobile service: “any mobile
113
Restoring Internet Freedom Order at para. 34 (2018) (quoting Comments of AT&T Services Inc., WC Docket
No. 17- 108, at 74 (July 17, 2017)).
114
Order at para. 148.
115
See Roger Entner, Don Kellogg & Brett Clark, Recon Analytics, Broadband Survey Results at 2 (attached to
USTelecom Reply Comments, WC Docket No. 23-320 (Jan. 17, 2024)),
https://www.fcc.gov/ecfs/document/10117636723266/3.
116
Rysavy Decl. at paras. 17-18.
117
Restoring Internet Freedom Order at para. 41 (quoting Comments of the Information Technology and Innovation
Foundation, WC Docket No. 17-108, at 74 (July 17, 2017)).
118
Restoring Internet Freedom Order at para. 42.
119
47 U.S.C. § 332(d)(1).
120
47 U.S.C. § 332(d)(2).
121
47 C.F.R. § 20.3.
122
47 C.F.R. § 20.3.
Federal Communications Commission FCC 24-52
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service . . . that is not a commercial mobile service or the functional equivalent of a commercial mobile
service.”
123
As the D.C. Circuit in Cellco explained, “providers of ‘commercial mobile services,’ such as
wireless voice-telephone service, are common carriers, whereas providers of other mobile services are
exempt from common carrier status.”
124
In particular, the court recognized Section 332’s “statutory
exclusion of mobile-internet providers from common carrier status.”
125
And due to the Communications
Act’s separate prohibition on treating information services providers as common carriers, the court in
Cellco concluded that mobile ISPs are “statutorily immune, perhaps twice over, from treatment as
common carriers.”
126
The D.C. Circuit in Verizon affirmed that conclusion: The “treatment of mobile
broadband providers as common carriers would violate section 332.”
127
2. It is no accident that, within the broader landscape of the 1996 Act, Title II represents a small
island of utility-style regulation within the vast ocean of a light-touch treatment. Congress did not create
the distinction between Title I and Title II services out of thin air. Rather, it incorporated the rich
historical backdrop of precedent before the Telecommunications Act of 1996
128
that is decisive here.
129
As an initial matter, the 1996 Act was intended to be a deregulatory piece of legislation to open
up competition in the communications market following the breakup of the AT&T monopoly a decade
before. The 1996 Act’s preamble makes this clear: “To promote competition and reduce regulation in
order to secure lower prices and higher quality services for American telecommunications consumers and
encourage the rapid deployment of new telecommunications technologies.”
130
A bipartisan group of Senators confirmed that “[n]othing in the 1996 Act or its legislative history
suggests that Congress intended to alter the current classification of Internet and other information
services or to expand traditional telephone regulation to new and advanced services.”
131
Or as Senator
John McCain put it, “[i]t certainly was not Congress’s intent in enacting the supposedly pro-competitive,
deregulatory 1996 Act to extend the burdens of current Title II regulation to Internet services, which
historically have been excluded from regulation.”
132
The FCC confirmed the 1996 Act’s deregulatory
123
47 C.F.R. § 332(d)(3).
124
Cellco Partnership v. FCC, 700 F.3d 534, 538 (D.C. Cir. 2012).
125
Id.
126
Id.
127
Verizon, 740 F.3d at 650.
128
See Brand X, 545 U.S. at 993; Mozilla, 940 F.3d at 25. 203.
129
Global Crossing Telecomms., Inc. v. Metrophones Telecomms., Inc., 550 U.S. 45, 48 (2007) (noting that a
statute’s historical backdrop can “hel[p] to illuminate the proper interpretation and application” of its provisions);
Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (cleaned up) (“When a statutory term is obviously transplanted
from another legal source, it brings the old soil with it.”).
130
See Preamble, Telecommunications Act of 1996, P.L. 104-104, 100 Stat. 56 (1996).
131
Letter from Senators John Ashcroft, Wendell Ford, John Kerry, Spencer Abraham, and Ron Wyden to the
Honorable William E. Kennard, Chairman, FCC, at 1 (Mar. 23, 1998) (Five Senators Letter),
http://apps.fcc.gov/ecfs/document/view?id=2038710001.
132
Stevens Report, 13 FCC Rcd at 11519, para. 37 (quoting Letter from Senator John McCain to the Honorable
William E. Kennard, Chairman, FCC).
Federal Communications Commission FCC 24-52
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intent in the Stevens Report, which found that internet access was an “information service” both under the
1996 Act and the pre-Act precedent that Congress incorporated into the statute.
133
The 1996 Act’s deregulatory intent informed its distinction between Title I “information services”
and Tile II “telecommunications services.” That distinction reflected Congress’ intent to codify the
decades-old understanding in the FCC’s pre-1996 precedent that “basic services” subject to common
carrier regulation (like telephone service) are materially dissimilar for regulatory purposes from
“enhanced services” (like computer processing over telephone lines).
134
That distinction was also
informed by the Modification of Final Judgment breaking up the Bell system.
135
3. Developments following the passage of the 1996 Act confirm that Congress intended to
regulate broadband as a Title I “information service.”
For one, Section 230 of the Communications Decency Act confirms that broadband is an
information service. Congress defined the term “interactive computer service” to mean an “information
service” that “provides or enables computer access by multiple users to a computer server.”
136
If that
definition were not clear enough, Section 230 expressly states that an “interactive computer service”
includes “specifically a service or system that provides access to the Internet.”
137
Section 230’s treatment
of “provid[ing] access to the Internet” as an “information service” contradicts the Order’s Title II
classification.
And Section 230 renders the conduct rules the FCC adopts here—including for blocking,
throttling, prioritization, and general conduct—unenforceable. Section 230 immunizes interactive
computer services from federal and state law for “restrict[ing] access to or availability of material that the
provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable.”
138
Congress was not ambiguous about its deregulatory intentions behind Section 230. As it found:
“The Internet and other interactive computer services have flourished, to the benefit of all Americans,
with a minimum of government regulation.”
139
And it went on to state the “policy of the United States . .
. [is] to preserve the vibrant and competitive free market that presently exists for the Internet . . .
unfettered by Federal or State regulation.”
140
133
See Federal-State Joint Board on Universal Service, Report to Congress, 13 FCC Rcd 11501 (1998) (Stevens
Report).
134
In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), 77
FCC 2d 384, 417-423, ¶¶ 86-101 (1980) (Computer II).
135
United States v. AT&T Co., 552 F. Supp. 131, 229 (D.D.C. 1982), aff'd sub nom. Maryland v. United States, 460
U.S. 1001 (1983).
136
47 U.S.C. § 230(f)(2).
137
47 U.S.C. § 230(f)(2).
138
47 U.S.C. § 230(c)(2).
139
47 U.S.C. § 230(a)(4).
140
47 U.S.C. § 230(b)(2).
Federal Communications Commission FCC 24-52
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For another, Congress has given the FCC limited, piecemeal authority over broadband since the
1996 Act. When Congress wants to address the internet or broadband, it uses that very word.
141
Congress
knows how to delegate authority over broadband to the FCC—but it’s only done so in narrow
circumstances. Tellingly, these rifle-shot authorities were not codified in Title II, but rather in separate
sections, particularly a chapter titled “Broadband.”
142
And for another, since the 1996 Act, Congress has repeatedly rejected legislation that would
expressly classify (or authorize the FCC to classify) broadband as a Title II service.
143
As the Supreme
Court has explained, the courts cannot turn a blind eye to a new power discovered by an agency that
“Congress considered and rejected multiple times.”
144
In short, the Communications Act does not clearly provide—anywhere—that the Commission
may treat broadband as a form of telecommunications service, and if anything indicates that the opposite
is true.
b. Brand X Confirms that Title II Violates the Major Questions Doctrine.
In Brand X, the Supreme Court upheld the FCC’s determination that broadband was an
information service and did not involve a separate offering of telecommunications service. The question
before the Court was whether a broadband provider “offers” a separate telecommunications service in the
form of last-mile transmission, even though the provider’s broadband offering qualified as an
“information service.”
145
As the Court explained, “it does not inexorably follow as a matter of ordinary
language that [broadband providers] also ‘offe[r]’ consumers the high-speed data transmission
(telecommunications) that is an input used to provide [broadband] service.”
146
The Communications Act,
the Court concluded, “fails unambiguously to classify . . . information service providers that use
telecommunications inputs to provide an information service as ‘offer[ors]’ of ‘telecommunications.’”
147
The Court’s ruling in Brand X decisively shows why the FCC cannot classify broadband under
Title II. The FCC must point to “clear congressional authorization”
148
for the power it claims today, but
Brand X confirms that such authority is, at best, ambiguous. If the statute is ambiguous about regulating
broadband under Title II, Congress cannot have clearly authorized it as West Virginia requires. Indeed,
141
See Broadband Deployment Accuracy and Technological Availability Act, Pub. L. No. 116-130, 134 Stat. 228
(2020) (codified at 47 U.S.C. §§ 641-646); Secure Equipment Act of 2021, Pub. L. No. 117-55, 135 Stat. 423 (2021)
(codified at 47 U.S.C. § 1601); Secure and Trusted Communications Networks Act of 2019, Pub. L. No. 116-124,
133 Stat. 158 (2020) (codified as amended at 47 U.S.C. §§ 1601-1609); 47 U.S.C. § 1302.
142
See generally 47 U.S.C. §§ 1301-1307.
143
See Net Neutrality and Broadband Justice Act of 2022, H. R. 8573, 117th Cong. § 2 (2022) (proposing to amend
the Communications Act’s definition of telecommunications service to “include[] the offering of broadband internet
access service”); Save the Internet Act of 2019, H.R. 1644, 116th Cong. § 2(b)-(c) (2019) (proposing to “restore[ ] as
in effect” the Commission’s 2015 classification of broadband as a telecommunications service subject to Title II).
144
West Virginia, 142 S. Ct. at 2614 (internal quotations and citations omitted).
145
Brand X, 545 U.S. at 988, 997.
146
Brand X, 545 U.S. at 989.
147
Brand X, 545 U.S. at 986.
148
West Virginia, 142 S. Ct. at 2609.
Federal Communications Commission FCC 24-52
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when defending its 2015 Title II Order, the FCC conceded that “the Communications Act did not clearly
resolve the question of how broadband should be classified.”
149
Now, it is true that the D.C. Circuit panel in U.S Telecom II considered and rejected a version of
this argument, upholding the 2015 Title II Order based on the reasoning that Brand X found a
congressional delegation of authority for the FCC to decide how broadband would be classified. But U.S.
Telecom II will not save today’s Order for several reasons.
First, the Court’s analysis in Brand X is outdated in key respects such that the FCC would not
receive deference for the contestable statutory interpretations in the Order. Brand X predates the Supreme
Court’s seminal MQD decisions in West Virginia v. EPA and Biden v. Nebraska and the desuetude of
Chevron in favor of a harder look at agency decisions.
Second, the D.C. Circuit panel in U.S. Telecom II ignored a key distinction when it found that
Brand X controlled instead of the Court’s pre-MQD precedent. The FCC order at issue in Brand X
involved a deregulatory FCC decision not to regulate broadband under Title II. So the FCC did not—and
could not—claim a newfound power of “vast economic and political significance” that would have
triggered the Court’s application of MQD precursors. As a result, the Court in Brand X had no occasion
to consider the MQD. That is not the case with today’s Order, where the FCC asserts massive powers to
regulate the entire broadband industry after decades of light-touch treatment.
And finally, modern broadband presents a far easier case than the technology Brand X considered.
At issue was the last-mile transmission service between the end user and the ISP, which the carrier could
offer as common carriage or private carriage.
150
In his dissent, Justice Scalia characterized that service as
a telecommunications service. As he put it: “Since . . . the broad-band connection between the
customer’s computer and the cable company’s computer-processing facilities[] is downstream from the
computer-processing facilities, there is no question that it merely serves as a conduit for the information
services that have already been ‘assembled’ by the cable company in its capacity as ISP.”
151
Modern
broadband as regulated by the FCC in today’s Order, by contrast, is not limited to the last-mile
transmission service between a customer and an ISP’s point of presence. ISPs carry data all the way to
the point of interconnection, where traffic is exchanged at the Internet’s backbone, and where information
processing functionalities take place.
Or to rephrase it in the terms used by Justice Scalia in his Brand X dissent: today’s Order is not
limited to the segment between the pizza shop and its customers this go around; it instead covers the
entire supply chain, from the wheat fields to the processing plants to the delivery of the dough to the pizza
shop and beyond. If you were to call up the farmer and ask them if they provide pizza delivery, I don’t
think the conversation would get very far. But bringing the discussion back to the Order before us—even
if there were an argument that broadband were a standalone transmission service in Brand X, the same
cannot be said of the ecosystem regulated by the FCC today.
3. The Order Cannot Circumvent the Major Questions Doctrine Through
Forbearance.
In an effort to escape the MQD, the Order points out that it forbears from more than a dozen
provisions in Title II. The Order’s forbearance framework extends to ex ante ratemaking regulation,
Section 214 discontinuance authorization, universal service contribution, interconnection, truth-in-billing,
149
U.S. Telecom II, 855 F.3d at 425 (Kavanagh, J., dissenting from denial of rehearing en banc).
150
Wireline Broadband Internet Access Services Order, 20 FCC Rcd at 14899, para. 86.
151
Brand X, 545 U.S. at 1010 (Scalia, J., dissenting).
Federal Communications Commission FCC 24-52
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roaming, and many other requirements. Forbearing from these requirements, the Order asserts, “will
significantly mitigate any economic impact on [broadband] providers.”
152
As an initial matter, that argument fails on its own terms. As noted below, even with forbearance,
the rules that the Order keeps in place are significant enough to trigger the MQD. Consider Sections
201(b) and 202(a), which give the FCC unbounded rulemaking authority over the justness and
reasonableness of telecommunications practices while imposing open-ended “nondiscrimination”
requirements on ISPs. Only the imagination limits how the FCC might regulate broadband providers
going forward. Or consider the amorphous Internet Conduct Rule, which puts all network management
decisions in the FCC’s crosshairs, subject only to the whim of a bureaucrat’s “case-by-case” review of “a
non-exhaustive list of factors.”
153
It is risible to assert, as the Order does, that extending monopoly
regulation to a competitive sector of the U.S. economy will not affect long-term investment by creating a
cloud of regulatory uncertainty.
In any case, I am concerned that the Order’s argument is a bait and switch. Despite the Order’s
protestations, nothing stops the FCC from reinstating any rule that it forbears from today—whether ex
ante rate regulation, new broadband taxes, or requiring permission to retire legacy technologies.
Likewise, the FCC remains free to adopt new rules under the broad rulemaking powers in Sections 201(b)
and 202(a), an outcome the Order plainly envisions.
The FCC’s lawless application of forbearance, in fact, shows why the Order cannot survive under
the MQD. Through forbearance, the FCC effectively creates a bespoke regulatory framework from
scratch. In this Frankenstein scheme, the Order casts aside more than a dozen provisions integral to the
overall legislative design of Title II. Although the 1996 Act authorizes forbearance, the Order’s
promiscuous use of it fundamentally alters the regulatory scheme, making the resulting mishmash
unrecognizable to the Congress that enacted the 1996 Act.
Two Supreme Court decisions squarely address the issue and illustrate why the Order’s
forbearance determinations violate the MQD.
154
First, in Biden v. Nebraska, the Court invalidated the Secretary of Education’s attempt to cancel
$430 billion in student loan debt.
155
The Secretary invoked their power under a post-9/11 relief statute to
“waive or modify any statutory or regulatory provision applicable to the student financial assistance
programs.”
156
The Secretary’s authority to “waive or modify” was subject only to the conditions that it
was “deem[ed] necessary in connection with a war or other military operation or national emergency” and
“necessary to ensure” that student debtors were not made worse off.
157
Despite this broad language, the Court nonetheless held that the Secretary lacked statutory
authority to forgive student debt under the MQD. As the Court found, the “waive or modify” language
152
Order at para. 257.
153
Order at para. 518-519.
154
The Order’s use of forbearance also defeats the FCC’s claim that if the MQD invalidated the Order, then the
MQD would also invalidate a Title I decision, such as the Restoring Internet Freedom Order. See Order at para. 254
& n.1063. Forbearance distinguishes the Order from Restoring Internet Freedom Order under the MQD. Rewriting
a statutory scheme through forbearance is decidedly different for MQD purposes than deciding to leave a service in
its status quo deregulatory position wholly in place.
155
Biden v. Nebraska, 143 S. Ct. 2355 (2023).
156
Biden v. Nebraska, 143 S. Ct. at 2363-64 (quoting 20 U.S.C. § 1098bb(a)(1)).
157
Id.
Federal Communications Commission FCC 24-52
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did not give the Secretary unbounded authority to act as they pleased. The debt relief was not a “waiver”
because it “augment[ed] and expand[ed] existing provisions dramatically.”
158
It was, likewise, not a
“modification,” which connotes “modest” changes, not the transformational power to rewrite an entire
statute.
159
Several MQD-based factors informed the Court’s interpretation of these statutory terms. First,
student debt relief was a politically charged topic, much like Title II net neutrality.
160
Congress was
undoubtedly aware of it. Had Congress intended to authorize debt relief, surely it would have used
express language to that effect just years earlier when it enacted the COVID relief bill. Second, the
magnitude of the action was unprecedented. Never before had the Secretary employed the
waiver/modification language this way.
161
Finally, even though the Secretary’s action imposed no new
obligations on the public, and instead relaxed the burden on student debtors, the “economic and political
significance” was nonetheless “staggering by any measure.”
162
Second, in MCI v. AT&T, a MQD precursor, the Court invalidated the FCC’s attempt to eliminate
the tariffing requirement for non-dominant carriers under the pre-1996 Act framework. The statute
required common carriers to file tariffs, but allowed the FCC “in its discretion and for good cause shown,
modify any requirement made by or under the authority of this section.”
163
But the FCC’s seemingly
unrestricted authority to modify, the Court held, did not give it the power to effect a “fundamental
revision of the statute.”
164
That is exactly what the FCC did by eliminating the tariffing requirement, a
tenet so central to the pre-1996 Act that Congress surely would not have intended to allowed the FCC to
eliminate it without express language.
165
Here, the Order’s boundless application of forbearance under Section 10 of the Act renders it
unlawful under Nebraska and MCI. For one, whereas the agencies in Nebraska and MCI enjoyed
expansive authority to waive or modify rules, Section 10 gives the FCC less latitude. To forbear from a
Title II provision, the FCC must show that: (1) enforcement of the provision is not necessary to ensure
just and reasonable charges, practices, classifications, or regulations; (2) the provision is not necessary to
protect consumers; and (3) forbearance is consistent with the public interest.
166
In that sense, this Order
starts off on weaker footing than the agency actions in Nebraska and MCI.
The Order also “fundamentally rewrites” Title II through forbearance. Consider the fact that the
Order refrains from extending Title II rules plainly intended for legacy telephone service because they are
“tangentially related to [broadband].”
167
These rules expressly refer to “Bell operating companies” and
“local exchange carriers” while regulating services like “payphones.”
168
Simply put, the FCC recognizes
158
Id. at 2371.
159
Id. at 2359.
160
Id. at 2373.
161
Id. at 2372.
162
Id. at 2373.
163
MCI, 512 U.S. at 225 (quoting 47 U.S.C. § 203 (1988 ed. and Supp. IV)).
164
MCI, 512 U.S. at 231-32.
165
Id. at 230.
166
47 U.S.C. § 160(a).
167
Order at para. 425.
168
47 U.S.C. §§ 271-276.
Federal Communications Commission FCC 24-52
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that applying Title II as written to broadband would lead to absurd outcomes. That is a dead giveaway
why it cannot be the correct interpretation of the Communications Act. To avoid illogical consequences,
the Order is forced to use forbearance to retrofit the statute in a systematic and customized manner. That
is the exercise of raw legislative power, not an implementation of judgments that Congress already made.
And the “economic and political significance” of the Order’s forbearance is “staggering by any
measure.”
169
Take just one example: the decision to forbear from requiring contributions to the universal
service fund. At stake are hundreds of billions of dollars in funding collected by broadband providers,
which would be passed along to every American with an Internet subscription; the broader solvency of the
USF program; and years-long legislative efforts within Congress to reform our broadband funding
mechanisms. Forbearance from the contribution requirement alone implies a major question.
But, of course, the Order does not simply forbear from a single requirement. There is also
interconnection, Section 214 discontinuance, truth-in-billing, roaming, and more. When you tally up
every requirement the Order decides not to apply, it isn’t a particularly close call: the FCC is acting like a
legislature instead of an expert agency with limited powers. That is precisely the outcome the MQD is
intended to prevent.
It is of no relevance that the Order refrains from new requirements rather than imposing them.
The MQD still applies, as Nebraska and MCI confirm, and an agency cannot fundamentally rewrite a
statute by picking and choosing what regulations will apply using its power to “waive,” “modify,” or
“forbear.” Yet that is precisely what the Order does. Far from saving the Order, forbearance further
dooms it.
B. Section 706 Does Not Authorize Title II.
In a last-ditch argument, the Order cites Sections 706(a)
170
and 706(b)
171
of the 1996 Act as
“independent, complementary sources of affirmative Commission authority for the rules adopted
today.”
172
Apart from that evasive language, the Order offers scant explanation of what work these
provisions do to support new conduct rules, or how these provisions could possibly authorize Title II.
And understandably so. Section 706 cannot salvage the Order for many reasons. Here are some of the
highlights.
169
Biden v. Nebraska, 143 S. Ct. at 2373.
170
47 U.S.C. § 1302(a) (“The Commission … 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.”); see also 47 U.S.C. §
1302(d)(1) (“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.”).
171
47 U.S.C. § 1302(b) (“The Commission shall [on an annual basis] initiate a notice of inquiry concerning the
availability of advanced telecommunications capability to all Americans (including, in particular, elementary and
secondary schools and classrooms) …. 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.”).
172
Order at para. 612.
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First, the D.C. Circuit unequivocally held in Verizon that Section 706(a) and 706(b) do not give
the FCC legal authority to impose Title II duties on broadband providers. In Verizon, the court
considered the FCC’s attempt in 2010 to adopt disclosure, blocking, and conduct rules on broadband
providers. At the time, broadband was a Title I service. The 2010 Order did not try to reclassify
broadband under Title II, but instead invoked Sections 706(a) and 706(b) as the basis to adopt new rules
without reclassification. The Verizon court properly rejected the FCC’s end-run around Title II: the
blocking and discrimination rules, the court found, “relegated [broadband providers] to common carrier
status.”
173
Such common carrier treatment, the court held, was unlawful while broadband remained a
Title I service.
Second, while the Order seeks to reclassify broadband, it cannot lawfully rely on Section 706 to
do so under the MQD. Section 706 is at most an ambiguous source of authority to issue any regulation—
a point the D.C. Circuit expressly confirmed in Verizon
174
and reaffirmed in Mozilla.
175
Section 706(a)
merely states that the FCC “shall encourage” the reasonable and timely deployment of broadband.
Section 706(b), meanwhile, states that the FCC “shall take immediate action to” accelerate broadband
deployment if the FCC finds that broadband is not being deployed to all Americans in a reasonable and
timely manner.
As that language makes clear, Section 706 can “certainly be read as simply setting forth a
statement of congressional policy.”
176
After all, Congress knows how to confer rulemaking authority on
the FCC. It does so throughout the Communications Act, and when it wants to give the FCC that
authority, it uses far more precise language than the words employed in Section 706.
177
As the Restoring
Internet Freedom Order outlined at extensive length, Section 706 is devoid of the elementary details that
would normally accompany a congressional grant of agency power, like “the providers or entities whose
conduct could be regulated.”
178
Given its nebulous mandate and lack of specificity, Section 706 appears
to be “hortatory” and “better read as directing the Commission regarding its exercise of regulatory
authority granted elsewhere.”
179
While the Order strains to justify Section 706 rulemaking authority under first principles, that
effort is ultimately futile. The D.C. Circuit in Mozilla and Verizon found it reasonable to read Section
706 as a statement of policy rather than a freestanding source of unbounded regulatory power. Because
the courts have determined that Section 706 does not provide “clear congressional authorization” to issue
173
Verizon, 740 F.3d at 652 (cleaned up).
174
Verizon, 740 F.3d at 635-36.
175
Mozilla, 940 F.3d at 46.
176
Verizon, 740 F.3d at 637.
177
See 47 U.S.C. § 227(b)(2) (“The Commission shall prescribe regulations to implement the requirements of this
subsection”); id. § 251(d)(1) (“the Commission shall complete all actions necessary to establish regulations to
implement the requirements of this section”); id. § 201(b) (“The Commission[] may prescribe such rules and
regulations as may be necessary in the public interest to carry out the provisions of the Act”); id. § 205(a) (“the
Commission is authorized and empowered to determine and prescribe what will be the just and reasonable charge”);
id. § 205(a) (“the Commission is authorized and empowered . . . to make an order that the carrier or carriers shall
cease and desist”); id. § 213(b) (“The Commission may at any time require any such carrier to file with the
Commission an inventory of all or of any part of the property owned or used by said carrier”).
178
Restoring Internet Freedom Order at para. 271.
179
Id.
Federal Communications Commission FCC 24-52
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any regulation, the MQD precludes the FCC from using that ambiguous language to justify today’s
decision of “vast economic or political significance.”
Third, the Order’s reliance on stale data and outcome-driven analysis sinks its ability to rely on
Section 706(b), which states that the FCC shall “accelerate deployment” of broadband “by removing
barriers to infrastructure investment and by promoting competition in the telecommunications market” if
the FCC determines broadband is not being deployed to Americans in a timely and reasonable manner.
180
The FCC’s Section 706 Report, conveniently released weeks before today’s Order, made a negative
finding about the pace, cadence, speed of broadband deployment.
181
As I explained in considerable detail,
182
these factual findings defy the impressive progress in
broadband deployment—whether fiber, fixed wireless, 5G, or high-speed satellite—that every American
consumer has seen with their own eyes since 2017. To accomplish this, the Section 706 Report rests on
outdated and error-ridden datasets that understate the scope and scale of broadband availability, even
though better information was at the FCC’s fingertips. The Section 706 Report also inflated the number
of purportedly unserved Americans by excluding high-speed satellite broadband covering more than 99%
of the United States and by relying on a more demanding speed benchmark (100/20 Mbps) for the first
time to effectively move the goalposts.
Finally, assuming the FCC had rulemaking authority under Section 706, and assuming further
that it validly made a negative determination under Section 706(b), the Order fails to provide specific
explanations, based on the record, how utility-style regulation would “encourage the deployment on a
reasonable and timely basis of advanced telecommunications capability to all Americans”
183
or
“accelerate deployment of such capability by removing barriers to infrastructure investment and by
promoting competition in the telecommunications market.”
184
Indeed, concluding that monopoly-style
regulation “remov[e]s barriers to infrastructure investment” and “promot[es] competition” stretches words
to their breaking point.
As noted below,
185
Title II threatens investment and competition by saddling providers with new
costs and regulatory uncertainty. And while the Order tries to nitpick the reams of real-world economic
data, based on our natural experiment before and after Title II, the Order offers no affirmative finding that
the opposite would be true. In other words, the Order makes no positive finding that Title II will lead to
more infrastructure investment. Indeed, in paragraph after paragraph discussing Title II’s effect on
investment after 2017, the most the Order can say is that the empirical evidence is “inconclusive.”
186
180
47 U.S.C. § 1302(b).
181
See Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a
Reasonable and Timely Fashion, Report, FCC 24-27, GN Docket No. 22-270 (Mar. 18, 2024) (Section 706 Report).
182
Dissenting Statement of Commissioner Brendan Carr, Inquiry Concerning the Deployment of Advanced
Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, Section 706 Report, GN
Docket No. 22-270 (Mar. 14, 2024), https://docs.fcc.gov/public/attachments/DOC-401205A3.pdf.
183
47 U.S.C. § 1302(a).
184
47 U.S.C. § 1302(b).
185
See infra II.A.2.
186
Order at para. 288.
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II. THE ORDER’S ADOPTION OF TITLE II IS ARBITRARY AND CAPRICIOUS.
Even if the FCC had clear congressional authorization to apply Title II to broadband, the Order
would still violate the law by running afoul of the Administrative Procedures Act (APA).
The APA requires agencies like the FCC to examine “the relevant data” and articulate “a
satisfactory explanation” for the conclusions it reached and the rules it adopted, “including a rational
connection between the facts found and the choice made.”
187
When an agency changes its policy, as the
FCC does here, it must “show that there are good reasons for the new policy.”
188
But an agency must go
further and provide a “more detailed justification” either when: (1) “its new policy rests upon factual
findings that contradict those which underlay its prior policy”; or (2) “its prior policy has engendered
serious reliance interests that must be taken into account.”
189
While both circumstances are present here,
sufficient justifications from the FCC are not.
The Order trots out the now-familiar parade of justifications for Title II that the agency invoked
back in the 2015 Title II Order: Internet “openness,” the “virtuous cycle of innovation,” and “gatekeeper”
theories of vertical integration and foreclosure. But the last six years without Title II brought more
competition, more investment, more capacity, faster speeds, and lower prices. Since 2017, meanwhile,
there have been no credible allegations that ISPs have made the Internet less open to edge providers or to
consumers. Simply put, the FCC has no plausible argument that the Internet ecosystem will not continue
to thrive in the absence of Title II, let alone a claim that broadband will be left without federal oversight.
The FCC has apparently realized that these warmed-over justifications for Title II are not selling
today the way they did during those earlier rounds of debate. Indeed, according to former FCC Chairman
Wheeler, they are “yesterday’s issue.”
190
So, in addition to burning down the usual straw men, for the
first time in the history of the FCC’s net neutrality proceedings, the Order pivots to a grab bag of new
reasons that have nothing to do with net neutrality: privacy, cybersecurity, national security, broadband
access, and network resiliency. While the goalposts have moved, the goal remains the same: increasing
government control over the Internet.
Every rationale the Order puts forward—old or new—fails. Before discussing each, it is worth
highlighting three errors that apply across the board to infect the Order’s overall reasoning.
First, today’s Order is predicated on the false assertion that “there has been no effectual federal
oversight” over ISPs since “the Commission’s abdication of authority over broadband in 2017.”
191
This
factual assertion is wrong—twice over.
For starters, the claim is contradicted by the legal authorities the Federal Trade Commission
(FTC) already has. The FTC oversees ISP practices and has pursued allegations of ISP misconduct on
187
State Farm, 463 U.S. at 43 (1983) (internal quotation marks omitted).
188
Fox, 556 U.S. at 515.
189
Id.
190
Stern Overly, The future of the net neutrality fight, Politico (Mar. 18, 2024),
https://www.politico.com/newsletters/digital-future-daily/2024/04/18/the-future-of-the-net-neutrality-fight-
00153126.
191
Order at para. 2.
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everything from billing
192
to advertising
193
to credit and consumer practices
194
to data security
195
to
consumer privacy
196
to mobile cramming.
197
In 2019, for example, the FTC settled a $60 million lawsuit
with an ISP over deceptive throttling disclosures.
198
The FTC would lose that authority following Title II
because the FTC lacks authority over common carriers.
199
For another, the FCC itself has asserted broad and direct regulatory authority over ISPs without
Title II. Indeed, just last year, this FCC voted to give itself regulatory power over practically every
decision regarding the provision of Internet service in the country.
200
In the Digital Equity Order, the
FCC claimed the roving enforcement and information-collection powers to prohibit ISP “policies or
practices” that have the intent or effect of “differentially impact[ing] consumers’ access to broadband
internet access service based on their income level, race, ethnicity, color, religion or national origin.”
201
The Digital Equity Order’s text expressly empowers the FCC to regulate each and every ISP’s:
• “network infrastructure deployment, network reliability, network upgrades, network maintenance,
customer-premises equipment, and installation”;
192
FTC v. Verity Int'l, Ltd., 335 F. Supp. 2d 479 (S.D.N.Y. 2004).
193
Juno Online Servs., Inc., No. C-4016 (F.T.C. June 25, 2001), https://www.ftc.gov/enforcement/cases-
proceedings/002-3061/juno-online-services-inc; CompuServe, Inc., No. C-3789 (F.T.C. Mar. 16, 1998),
https://www.ftc.gov/enforcement/cases-proceedings/962-3096/compuserve-inc-matter; Prodigy Servs. Corp., No. C-
3788 (F.T.C. Mar. 16, 1998), https://www.ftc.gov/enforcement/cases-proceedings/952-3332/prodigy-services-
corporation-matter; Am. Online Inc., No. C-3787 (F.T.C. Mar. 16, 1998), https://www.ftc.gov/enforcement/cases-
proceedings/952-3331/america-online-inc-matter.
194
United States v. Sprint Corp., 2:15-cv-9340 (D. Kan. Oct. 21, 2015), https://www.ftc.gov/enforcement/cases-
proceedings/142-3094/sprint-corporation-sprint-asl-program-0; United States v. Time Warner Cable, Inc., 13-cv-
8998 (S.D.NY. Dec. 20, 2013), https://www.ftc.gov/enforcement/cases-proceedings/122-3149/time-warner-cable-
inc.
195
FTC v. Pricewert LLC, No. C-09-CV-2407 RMW (N.D. Cal. Apr. 8, 2010),
https://www.ftc.gov/enforcement/cases-proceedings/092-3148/pricewert-llc-dba-3fnnet-ftc; Letter from Maneesha
Mithal, Assoc. Dir. of the Div. of Privacy & Identity Prot., Fed. Trade Comm’n (Nov. 12, 2014),
https://www.ftc.gov/system/files/documents/closing_letters/verizon-communications-
inc./141112verizonclosingletter.pdf.
196
See FTC Staff Report, A Look At What ISPs Know About You: Examining the Privacy Practices of Six Major
Internet Service Providers (2021), https://www.ftc.gov/system/files/documents/reports/look-what-isps-know-about-
you-examining-privacy-practices-six-major-internet-service-providers/p195402_isp_6b_staff_report.pdf.
197
FTC v. T-Mobile USA, Inc., No. 2:14-cv-0097-JLR (W.D. Wa. Dec. 19, 2014),
https://www.ftc.gov/enforcement/cases-proceedings/132-3231/t-mobile-usa-inc; FTC v. AT&T Mobility, LLC, No.
1:14-cv-3227-HLM (N.D. Ga. Oct. 8, 2014), https://www.ftc.gov/enforcement/cases-proceedings/132-3248/att-
mobility-llc.
198
Press Release, Federal Trade Commission, AT&T to Pay $60 Million to Resolve FTC Allegations It Misled
Consumers with ‘Unlimited Data’ Promises (Nov. 5, 2019), https://www.ftc.gov/news-events/news/press-
releases/2019/11/att-pay-60-million-resolve-ftc-allegations-it-misled-consumers-unlimited-data-promises.
199
15 U.S.C. § 45(a)(2).
200
Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination,
Report and Order and Further Notice of Proposed Rulemaking, GN Docket No. 22-69, FCC 23-100 (rel. Nov. 20,
2023) (Digital Equity Order).
201
Digital Equity Order at para. 3.
Federal Communications Commission FCC 24-52
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• “speeds, capacities, latency, data caps, throttling, pricing, promotional rates, imposition of late
fees, opportunity for equipment rental, installation time, contract renewal terms, service
termination terms, and use of customer credit and account history”; and
• “mandatory arbitration clauses, pricing, deposits, discounts, customer service, language options,
credit checks, marketing or advertising, contract renewal, upgrades, account termination, transfers
to another covered entity, and service suspension.”
202
As exhausting as it is to read that list, the FCC says it is not an exhaustive list. And the Digital Equity
Order reserves the right under this plan to regulate both “actions and omissions, whether recurring or a
single instance.”
203
In other words, if you take any action, you may be liable, and if you do nothing, you
may be liable.
Now, the Digital Equity Order is unlawful, and I am confident will be struck down in court, as I
explained elsewhere.
204
But this FCC clearly does not believe that, and the Digital Equity Order itself is
the law on the books today. So, the question remains: what is the Order’s basis for claiming Title II
rulemaking
205
and enforcement authority
206
over “unjust or unreasonable charges, practices, and
regulations”
207
and “unjust or unreasonable discrimination”
208
when they largely duplicate the open-ended
list of topics in the Digital Equity Order? Likewise, given the Digital Equity Order’s list of commercial
practices, including “throttling,” what is the basis for the Internet Conduct Rule, which prohibits ISP
practices that “unreasonably disadvantage” broadband access and is enforced on a “case-by-case basis”
using a “non-exhaustive list of factors”?
209
The Order does not say.
210
The Digital Equity Order is merely one example of powers the FCC already has, but nonetheless
claims to need from Title II. Others abound. Even without Title II, for instance, the FCC can adopt a
“Transparency Rule” that compels ISPs to disclose their network management practices, performance
characteristics, and commercial terms. In fact, the Restoring Internet Freedom Order did just that. What
is more, Congress gave the FCC specific authority to require so-called “broadband nutrition labels,”
which the agency adopted last year.
211
So, why does the FCC need Title II for the laundry list of new ISP
202
Id. at para. 102.
203
Id.
204
See Dissenting Statement of Commissioner Brendan Carr, Implementing the Infrastructure Investment and Jobs
Act: Prevention and Elimination of Digital Discrimination, Report and Order and Further Notice of Proposed
Rulemaking, GN Docket No. 22-69, FCC 23-100 (rel. Nov. 20, 2023) (Carr Digital Equity Order Dissent),
https://docs.fcc.gov/public/attachments/DOC-398477A3.pdf.
205
47 U.S.C. § 201(b).
206
47 U.S.C. §§ 206-208, 216-217.
207
47 U.S.C. § 201(b)
208
47 U.S.C. § 202(a).
209
Order at para. 518.
210
The Order states that Sections 201 and 202 “enable the Commission to advance digital equity in other ways not
contemplated elsewhere, including providing authority for our open Internet rules.” Order at para. 328. But the
Order does not meaningfully grapple with the overlap in authorities, including the Digital Equity Order’s express
regulation of various commercial terms that play a role in the Internet Conduct Rule, including “throttling.”
211
See Empowering Broadband Consumers Through Transparency, CG Docket No. 22-2, Report and Order and
Further Notice of Proposed Rulemaking, CG Docket No. 22-2, FCC 22-86 (2022) (Broadband Labels Order).
Federal Communications Commission FCC 24-52
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disclosures the Order adopts today, including disclosures this agency previously considered and found too
uninformative or burdensome for broadband labels?
212
Here again, the Order does not say.
Beyond the Broadband Labels Order and the Digital Equity Order, more than 96% of ISPs
already offer some other FCC-regulated service—whether voice telephony, VoIP, or cable television.
213
That means every ISP offering comingled services is already subject to FCC rules governing outage
disclosures, pole attachments, and more. Here again, this is merely another example why ISPs are not
falling through the cracks. Others are discussed below.
Second, the notion that the FCC needs more control over ISPs to prevent harmful outcomes finds
precious little support in actual facts. The Order is chock full of conjecture and speculation. Repeatedly,
we are told the FCC needs Title II because ISPs “could,” “may,” “would,” or “have the incentive or
ability” to do many things the FCC dislikes. But actual evidence comes in short supply.
Finally, even if the FCC had prevailed in establishing that some of sort of regulatory “gap”
existed, the agency has fallen far short of showing that it justifies the leap to Title II. The Order has failed
the APA’s tailoring requirement to demonstrate a rational connection between the facts found and the Title
II choice it has made. Strong claims require strong evidence. If this agency wants to treat ISPs like
public utilities, it must come to the table with the goods. Going full Title II on this record is like deciding
to scuttle a ship today because it might spring a small leak in the future.
That is especially the case for the Order’s cost-benefit analysis. While misrepresenting Title II’s
benefits, the Order takes an ostrich-like approach to Title II’s potential harms, especially the chilling
effect of indeterminate utility-style rules on investment. Contrary to the FCC’s claims, Title II is not
“light-touch.” At root, Title II means: (1) a collection of amorphous “reasonableness” and
“nondiscrimination” requirements that encourage anyone to complain about almost anything; and (2)
virtually unbounded rulemaking authority that permits the FCC to do whatever it wants. Even assuming
arguendo the benefits the Order claims, the FCC would still flunk any semblance of rigorous cost-benefit
analysis by failing to account for Title II’s significant costs.
So, to recap, the Order identifies no meaningful gap that Title II regulation would be necessary to
close. And it points to no meaningful problem that Title II regulation would be necessary to solve. All of
this makes the Order illegal under bedrock principles of administrative law. Because the Order strays
from “the bounds of reasoned decisionmaking,”
214
it is “arbitrary and capricious” under the APA
215
A. The Internet Did Not Break After the FCC Returned to Light-Touch Regulation.
In many ways, the FCC’s decision today pulls up the 2015 Title II Order, selects all, presses
control + C, and then presses control + V into a new document. In doing so, it brings forward into today’s
Order the same old justifications for Title II that the agency offered up in 2015. To the extent those
212
Compare Broadband Labels Order at para. 43 (declining to require disclosure of speeds based on peak usage
periods), and id. at para. 45 (declining to require disclosure of packet loss), with Order at para. 554 (requiring
disclosure of packet loss), and id. at para. 556 (requiring disclosure of speeds based on peak usage periods).
213
About 950,000 Added Broadband in Q3-2023, https://leichtmanresearch.com/wp-content/uploads/2023/11/LRG-
Press-Release-11-13-2023.pdf; accord 2020 Restoring Internet Freedom Remand Order at para. 73; Order at para.
88.
214
Baltimore Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 105 (1983).
215
5 U.S.C. § 706(2)(A).
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arguments carried any water back then (they didn’t), they are particularly bone dry today. The FCC’s
rationales provide no support for Title II.
1. Internet Openness
Let’s start with the FCC’s claims about Title II being necessary to ensure a free and open Internet.
Six years ago, Americans lived through one of the greatest hoaxes in regulatory history. They
were told that the 2017 Restoring Internet Freedom Order’s decision to overturn Title II would quite
literally break the Internet. It was a viral disinformation campaign replete with requisite doses of
Orwellian wordplay. Rather than shedding light on this debate, far too many people in DC simply fanned
the false flames of fear. While some have tried to memory hole this entire episode, it is important to
remember what we were told about Title II.
Senator Bernie Sanders stated that “This is the end of the Internet as know it” and “If this passes,
the internet and its free exchange of information as we have come to know it will cease to exist.”
216
Senator Ed Markey stated that “If the @FCC kills #NetNeutrality, the internet will never be the same”
217
and that “If we don’t #SaveNetNeutrality @AjitPaiFCC will turn the Internet into a digital oligarchy.”
Senator John Tester wrote that “Ending #NetNeutrality ends the Internet as we know it.”
218
Senate
Democrats asserted that “If we don’t save net neutrality, you’ll get the internet one word at a time.”
219
The media parroted these false claims. The New York Times ran an article headlined “The
Internet Is Dying. Repealing Net Neutrality Hastens That Death.” Another New York Times opinion piece
warned of a “nightmare scenario [at] America’s digital doorstep” that would result in a “digital dystopia”
rivaling Chinese-style censorship.
220
GQ published, in its news section, an article titled “How the FCC’s
Killing of Net Neutrality Will Ruin the Internet Forever.”
221
Not to be outdone, CNN ran a bolded, banner
headline across the top of its main page proclaiming the “End of the internet as we know it.”
222
The Verge
predicted broadband providers would “do practically whatever they like—including paid prioritization,
throttling, and otherwise messing with traffic as it moves across the internet” and potentially “reshape the
internet in very ugly ways.”
223
Not surprisingly, people believed the Apocalyptic rhetoric that the so-called “experts” on this
issue were feeding them. One person was sentenced to prison for threatening to murder the family of then
FCC Chairman Ajit Pai over Title II. Another was indicted for calling in a bomb threat to the FCC’s
216
See Dissenting Statement of Commissioner Brendan Carr, Safeguarding and Securing the Open Internet, Notice
of Proposed Rulemaking, WC Docket No. 23-320, FCC 23-83 (Oct. 19, 2023),
https://docs.fcc.gov/public/attachments/DOC-397827A3.pdf (Carr Title II NPRM Dissent).
217
Id.
218
Id.
219
Id.
220
Nick Frisch, What if You Couldn’t See This Page?, New York Times (Dec. 14, 2017),
https://www.nytimes.com/2017/12/14/opinion/net-neutrality-china-internet.html.
221
Jack Moore, How the FCC’s Killing of Net Neutrality Will Ruin the Internet Forever (Nov. 20, 2017),
https://www.gq.com/story/fcc-killing-net-neutrality-explained.
222
See Carr Title II NPRM Dissent at 3.
223
Makena Kelly, Net neutrality is dead—what now?, The Verge (June 11, 2018),
https://www.theverge.com/2018/6/11/17439456/net-neutrality-dead-ajit-pai-fcc-internet.
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headquarters, which resulted in us having to evacuate the Commission meeting room during our vote on
repealing Title II.
Did any one of the predictions following the 2017 Restoring Internet Freedom Order come to
pass? Of course not. And the Order points to no relevant examples of consumer abuses since we returned
to Title I in 2017.
In fairness, the Order does try. But what it cobbles together is so weak that it barely merits
discussion. As expected, the Order retreats to the same handful of tired examples that Title II advocates
have been complaining about for more than 20 years (such as the Madison River incident). As then-
Commissioner Pai reflected in 2015:
The evidence of these continuing threats? There is none; it’s all anecdote, hypothesis, and
hysteria. A small ISP in North Carolina allegedly blocked VoIP calls a decade ago. Comcast
capped BitTorrent traffic to ease upload congestion eight years ago. Apple introduced FaceTime
over Wi-Fi first, cellular networks later. Examples this picayune and stale aren’t enough to tell a
coherent story about net neutrality. The bogeyman never had it so easy.
224
These stories, now the stuff of urban legends, have been debunked time and again by this point. Each
example was either successfully addressed without Title II or irrelevant to broader concerns about net
neutrality.
225
The Order even goes so far to credit Public Knowledge’s allegations about ISP conduct
outside the United States.
226
Elsewhere, the Order engages in misdirection, claiming that “major [ISPs] are currently engaged
in throttling”
227
but only citing evidence that mobile operators manage streaming video bitrates to deal
with network congestion.
228
That is not a net neutrality violation, but something even this Order
recognizes can be a permissible form of “reasonable network management.”
229
Likewise, the Order cites
the so-called Wehe Study,
230
long since discredited,
231
which claims to establish mobile “throttling” by
comparing video quality on a mobile network and test devices in a laboratory setting. To show
“throttling” in any meaningful sense, the study would need to establish that the ISP impaired or degraded
224
Pai 2015 Title II Dissent at 14.
225
See Restoring Internet Freedom Order, at paras. 111-115 (rebutting the relevance of the Order’s cited examples
of Madison River, Comcast/BitTorrent, and AT&T/FaceTime, see Order at para. 472); NCTA Reply Comments, WC
Docket No. 23-320, at 19-21 (Jan. 17, 2024) (explaining that allegations of self-preferencing that the Order credits,
see Order at para. 460 & n.1821, did not involve net neutrality concerns but rather interconnection disputes, which
the Order forbears from regulating, see Order at paras. 392-415, or privacy complaints, which I address below).
226
See Order at n.1821 (citing Public Knowledge Comments at 16-22).
227
Order at para. 479.
228
Order at n.1860 (citing David Choffnes Comments at 2-3). The other examples cited in this footnote are
similarly irrelevant and involve issues unrelated to ISP throttling, like interconnection disputes, which the Order
declines to address.
229
See Order at paras. 500, 575.
230
See Order at n.1821 (citing Fangfan Li et al., A Large-Scale Analysis of Deployed Traffic Differentiation
Practices (Feb. 2018), https://wehe.meddle.mobi/papers/wehe.pdf (Wehe Study)).
231
See CTIA Reply Comments, WC Docket No. 23-320, at 10-18 (Jan. 17, 2024); Ross Marchand, New Evidence
Debunks Big Myth That Repealing Internet Rules Caused Throttling, The Federalist (Sept. 19, 2018),
https://thefederalist.com/2018/09/19/new-evidence-debunks-big-myth-repealing-net-neutrality-caused-throttling/
(rebutting the Wehe Study, explaining that the traffic variations detected by the researchers “reflect data management
rather than a plot to prioritize in-house streaming”).
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lawful traffic based on its content, application, or service, and for reasons unrelated to reasonable network
management. The Wehe Study did no such thing. It admits that it could not pinpoint whether video
resolution quality was the result of the user’s data plan,
232
a setting selected by the streaming service,
233
“confounding factors such as varying network conditions,”
234
or “IP addresses, peering arrangements,
interconnection congestion, traffic volume, or other factors independent of IP payloads.”
235
If a net neutrality problem existed, that information would be readily available for the Order to
cite, instead of grasping at apocryphal tales or irrelevant examples. After all, the Restoring Internet
Freedom Order enshrined a Transparency Rule, still in effect, that requires ISPs to disclose network
management practices, on their websites or an FCC docket, that identifies blocking, throttling, and
prioritization practices. But ISP disclosures disprove the premise of ongoing abuses,
236
and the Order
does not contend otherwise.
2. Broadband Investment
The Order’s agnosticism about Title II’s effect on investment also misses the mark.
1. Private investment in broadband networks drives faster speeds, more competition, greater
capacity, and lower prices. The broadband industry is famously capital intensive. Without hundreds of
billions of dollars in long-term investment, ISPs cannot dig trenches, lay fiber, build towers, purchase and
deploy spectrum, launch satellites, virtualize networks, develop intermodal and multimodal services, and
take other steps to deliver broadband.
The 2017 Restoring Internet Freedom Order observed that Title II regulation of ISPs from 2015-
2017 accompanied a decline in broadband investment. The Restoring Internet Freedom Order also
predicted that “reclassification of broadband Internet access service from Title II to Title I is likely to
increase ISP investment and output.”
237
The Order must disprove those conclusions. To lawfully change its policy of light regulation, the
FCC must meaningfully address factual findings that “underlay” its return to Title I in 2017.
238
And
232
Wehe Study at 136 § 5, 132 § 3.3, 138 § 6.2.
233
Id. at 140 § 7.2.
234
Id. at 131 § 3.1.
235
Id. at 132 § 3.3.
236
See, e.g., Verizon, Network Management, https://verizon.com/about/our-company/network-management (last
visited Apr. 24, 2024) (“Verizon Online does not affirmatively manage congestion on the network through
mechanisms such as real-time throttling, blocking, or dropping of specific end user traffic based on source or
content. There are no usage caps applicable to Verizon Online’s internet access services.”); AT& T, Network
Practices (last visited Apr. 24, 2024), https://about.att.com/sites/broadband/network (“AT&T does not favor certain
websites or internet applications by blocking or throttling lawful internet traffic on the basis of content, application,
service, user, or use of nonharmful devices on its broadband internet access services.”); Comcast, Xfinity Internet
Broadband Disclosures, https://www.xfinity.com/policies/internet-broadband-disclosures (last visited Apr. 24, 2024)
(“Comcast does not directly or indirectly favor some traffic over other traffic, including through use of techniques
such as traffic shaping, prioritization, or resource reservation, to benefit an affiliate. … Comcast does not degrade or
impair access to lawful Internet traffic on the basis of content, application, service, user, or use of a non-harmful
device.”).
237
Restoring Internet Freedom Order at para. 98.
238
Fox, 556 U.S. at 515.
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investment effects represent “serious reliance interests” that “must be taken into account” when an agency
changes its policy.
239
Besides, any cost-benefit analysis is illegitimate unless it considers how Title II
controls undermine private investment decisions. In all cases, the Order fails to meet its legal burden.
2. Start with the historical evidence of broadband investment, which validates the Restoring
Internet Freedom Order’s conclusions and predictions.
After the FCC adopted the 2015 Title II Order, many ISPs reduced their investments and halted
the expansion of their networks. Indeed, it was the only period of time outside of a recession where
broadband investment declined. One study found that the 2015 Title II rules reduced broadband
investment by $5.6 billion.
240
Another found that “[t]he persistent prospect of Title II policy reduced
investment by approximately 10% on average, between 2011 and 2020, about $8.1 billion annually, with
a total loss of investment over a ten-year period of about $81.5 billion.”
241
That study calculated “$145
billion annual losses in Gross Domestic Product, amounting to “$1.45 trillion over ten years.”
And after the FCC repealed Title II rules in 2017, broadband providers set new records for
building out Internet infrastructure. This makes sense because a regulatory onslaught from Washington
and new compliance costs are not actions that free up more capital for constructing networks. In 2022,
the broadband industry invested a record $102.4 billion in U.S. communications infrastructure, which
represents a 21-year high for investment and a 19% year-over-year increase.
242
Data from the wireless industry vividly illustrates the dip in investment brought about by Title II
and resurgence in investment after the FCC returned to Title I.
239
Id.
240
See Michael Horney, Broadband Investment Slowed by $5.6 Billion Since Open Internet Order, Free State
Foundation Blog (May 5, 2017), https://freestatefoundation.blogspot.com/2017/05/broadband-investment-slowed-
by-56.html.
241
George S. Ford, Investment in the Virtuous Circle: Theory and Empirics, Phoenix Center Perspectives, at 5-6
(Dec. 2023), https://phoenix-center.org/pcpp/PCPP62Final.pdf.
242
USTelecom, 2022 Broadband Capex Report: Broadband Providers Invested $102.4B in Communications
Infrastructure Last Year (Sept. 8. 2023), https://www.ustelecom.org/wpcontent/uploads/2023/09/2022-Broadband-
Capex-Report-final.pdf.
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A peer-reviewed study published in 2023 confirms the Restoring Internet Freedom Order’s
finding about the negative relationship between broadband investment and Title II regulation. This
econometric study analyzed 2000-2021 data across OECD countries, spanning both the two years of Title
II and the subsequent six years under Title I.
243
The study found that utility-style net neutrality rules was
associated with a 22-25% decrease in fiber investments. The study’s finding held even after controlling
for other factors that might have influenced investment, like macroeconomic conditions.
The Order offers no persuasive response. At the outset, the Order suggests that regulations have
virtually no impact on investment—a point that appears divorced from reality. The Order then finds that
the empirical evidence is “inconclusive due to methodological issues.”
244
Next, the Order seemingly
acknowledges that investment declined after 2015 and picked up after 2017, but offhandedly attributes
243
Wolfgang Briglauer, Carlo Cambini, Klaus Gugler, & Volker Stocker, Net neutrality and high-speed broadband
networks: Evidence from OECD countries, 55 Eur. J. L. & Econ. 533-571 (2023).
244
Order at para. 288.
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that fluctuation to other factors.
245
Finally, the Order relies on theoretical studies, mostly before 2015,
that are either speculative,
246
uninformative to the matter at hand,
247
or outright wrong.
248
Tellingly, the Order presents no affirmative empirical findings of its own. Nor does the Order
point to post-2015 studies that reviewed the data and contradicted the Restoring Internet Freedom’s
conclusions about Title II’s effect on investment.
Think about that. The FCC now has investment data from 2015-2017 and from 2018 onward. If
Title II increased investment, or if Title I depressed it, surely the Order would have touted that finding
from the rooftop. The FCC’s failure to do either is a dead giveaway that it does not believe in Title II’s
positive effect on investment.
3. Turning from the past to the future, the Order predicts Title II will have minimal effects on
broadband investment going forward. To support that prediction, the FCC says it adopts “a light-touch
regulatory framework” that merely reinstates net neutrality while forbearing from burdensome rules.
249
That characterization is pure gaslighting. The FCC apparently hopes the public will not
understand how much control the agency is wresting. Far from “light-touch,” Title II regulates virtually
every aspect of how an ISP does business.
For starters, Title II common carrier regulation has two centerpieces: (1) a collection of broad and
amorphous “reasonableness” and “nondiscrimination” requirements that encourage anyone to complain
about almost anything; and (2) virtually unbounded rulemaking and enforcement authority that permit the
FCC to take virtually any action it wishes.
Using this new rulemaking authority, the FCC adopts the Internet Conduct Rule, which allows the
FCC to prohibit any network management practice after the fact, based on a “non-exhaustive list of
factors” applied on a “case-by-case basis.” In practice, the Internet Conduct Rule operates as a backdoor
form of ex post rate regulation, for it ultimately governs how ISPs may price their data and capacity.
Already, the Order makes clear that longstanding ISP practices to optimize network performance while
offering consumer services in a cost-efficient manner—from zero-rating to usage-based pricing to
network slicing to managing the bitrate for streaming mobile video—may violate the Internet Conduct
Rule based on indeterminate criteria applied sometime in the future. These nebulous requirements
245
Order at para. 285 & n.1182 (relying on, inter alia, 2017 comments from Free Press). The Order attributes the
post-2015 dip in broadband investment, along with the post-2017 rebound, to the putatively coincidental timing of
4G/5G deployment lifecycles. That explanation, however, assumes the very conclusion in dispute by treating 4G/5G
deployment decisions as exogenous to Title II rather than influenced by it. Having made no effort to establish causal
directionality, the Order’s latest explanation should be afforded no probative value, as it lacks the rigor the FCC
purports to expect from numerous peer-reviewed studies that found a deleterious effect on investment from Title II.
246
Order at para. 284 & nn.1179-1180 (investor guidance from 2014).
247
Order at n.1165 (citing old studies on the effect of UNE unbundling); id. at n.1168 (citing generic studies on the
interaction between regulation and innovation).
248
Order at para. 282 & n.1171 (“[I]f paid prioritization is allowed, ISPs have an incentive to reduce investment
because expanding broadband capacity would lower the price that ISPs can charge for priority access.”) (quoting Jay
P. Choi & Byung-Cheol Kim, Net Neutrality and Investment Incentives, 43 RAND J. Econ. 446 (2010)). The quoted
prediction in the Order is wrong, of course, because paid prioritization was allowed after 2017, and investment
increased as ISPs’ revenue per gigabyte declined.
249
Order at para. 484.
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threaten to chill investment at the margins by always casting doubt on the legality of any innovative ISP
network technique or business model that benefits consumers.
In effect, the FCC has assumed the power to regulate rates and impose price controls
surreptitiously. How an ISP manages and monetizes its network capacity directly impacts how much it
can charge. If a wireless provider is required to deliver 8K video without managing network congestion,
the cost per gigabit of service will skyrocket. I have heard that it may cost at least one provider close to a
billion dollars to deliver full-resolution video in all circumstances. Those costs will translate into higher
prices for consumers. And without sponsored data plans, consumers will be forced to pay for capacity
they get for free today. While the Order says it does not adopt “ex ante rate regulation,” that assurance
offers no comfort, for the FCC intends to indirectly regulate rates ex post. The FCC would do by
subterfuge what it says it will not do openly. But the bank shot still counts.
The FCC’s new powers do not end there. Through its Section 214 authority, the FCC assumes the
power to prohibit any ISP from the U.S. market.
250
That power to ban an ISP is not an authority that the
FCC has today under Title I. Applying Title II, moreover, appears to give the President the authority to
ban broadband service in the U.S. altogether during times of emergency.
251
And any alleged violations of
Title II would subject ISPs to endless lawsuits through a new private right of action and money
damages,
252
along with enforcement authority that the FCC can apply whenever it wants.
253
4. The Order will threaten investment until the door is definitively shut on price controls. I have
repeatedly warned about this Administration’s inexorable march towards rate regulation.
254
The Order,
for its part, repeatedly disavows the intent to impose ex ante and ex post price controls given their
dampening effect on investment.
255
It is important that this rare point of consensus—one that spanned
Title I and Title II—not unravel.
In a new paragraph, the Order asserts that a “state affordability program” is not necessarily
preempted simply because it is labeled as a “state affordability program.”
256
That is true as far as it goes.
Whether a state law is preempted turns on its substance, not its branding. For instance, a state law that, in
the name of “affordability,” lowers permitting fees to encourage more robust competition, and thus leans
on market forces to put downward pressure on prices, is not preempted by the Order even if it were called
a “state affordability program.” By the same token, the Order does not provide that any state initiative—
regardless of its substance—survives a run in with the Supremacy Clause merely because lawmakers label
it a “state affordability program.”
257
250
Order at para. 513.
251
47 U.S.C. § 606(d).
252
47 U.S.C. §§ 206-207.
253
47 U.S.C. § 208-209.
254
See Carr Title II NPRM Dissent at 6; Carr Digital Equity Order Dissent at 3; Dissenting Statement of
Commissioner Brendan Carr, Promoting Competition in the American Economy: Cable Operator and DBS Provider
Billing Practices, Notice of Proposed Rulemaking, FCC-23-106, MB Docket No. 23-405 (2023),
https://docs.fcc.gov/public/attachments/FCC-23-106A3.pdf.
255
Order at paras. 280-281, 386. As noted above, however, I read the Order as leaving open the possibility of
indirect ex post rate regulation by targeting the cost structure of broadband capacity.
256
Order at para. 275.
257
While the Order does not define “state affordability program,” it drops a reference to the Infrastructure
Investment and Jobs Act (IIJA), which requires state BEAD programs to ensure that ISPs offer a “low-cost
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If it were otherwise, states would be free to undermine what the Order calls “a more uniform
federal regulatory framework for BIAS.”
258
Take Ne w Yo r k ’s so-called “Affordable Broadband Act” as
an example.
259
In my view, it is the type of naked rate regulation that is plainly preempted by today’s
Order, regardless of the legislation’s title.
That conclusion does not change with the Second Circuit’s recent decision to uphold the New
York law.
260
While the Second Circuit issued its decision one day after the FCC voted on the Order, the
court’s decision did not turn on the Order or its Title II classification. Quite the opposite. In the court’s
view, Title I regulation (which applied when the litigation commenced and will apply until the Order’s
effective date) did not preempt New York’s rate regulation. Putting aside my views on the merits of the
Second Circuit decision, its analysis in my opinion is now moot and no longer controlling. As the court
explained, a far different preemption analysis would apply if the law sought to regulate the rates of a Title
II service.
261
Thus, in my view, the Order and the Second Circuit’s opinion should be read as preempting
New York’s broadband price controls.
In short, neither the states nor the courts should interpret the Order as an invitation to regulate
rates. The Order must be read to mean what it says about barring both ex ante and ex post price
controls.
262
For my part, I intend to hold the FCC accountable for its representations and assurances, if
laws like New York’s are brought to this agency for a preemption determination. Whatever the politics,
the legal analysis is straightforward.
Even so, ISPs face a regulatory climate rife with uncertainty. Will the FCC seize its newfound
powers to adopt cradle-to-grave regulation, as it did immediately after the 2015 Title II Order? How will
the FCC interpret the minefield of ambiguous provisions buried in this Order? These and other unknowns
will be priced into investment decisions.
So, to say Title II’s effect on investment is indeterminate, as the Order does, defies credulity.
And to say this regime is “light-touch,” as the Order does, strays even further from the truth. ISPs will
give second thought before spending money to develop network innovations or business models that
benefit consumers. And in many cases, it simply won’t be worth the hassle.
5. In two particular cases, Title II makes hassles of the Biden Administration’s signature
broadband initiatives—BEAD and Open RAN.
The BEAD program will disburse $42.45 billion in federal grants for ISPs to deploy high-speed
broadband in unserved areas. These areas also happen to present the greatest business risk. Even as it
provides financial support, the BEAD program depends critically on complementary private investment
broadband service option” for eligible subscribers. See Order at n.1146 (citing 47 U.S.C. §§ 1702(h)(4)(B), (h)(5)).
However, the IIJA is equally clear that nothing therein authorizes NTIA to “regulate the rates charged for broadband
service.” Pub. L. 117-158 § 60102(h)(5)(D) (2021).
258
Order at para. 411.
259
N.Y. Gen. Bus. Law § 399-zzzzz(2).
260
See N.Y. State Telecomms. Ass'n, Inc. v. James, No. 21-1975, 2024 WL 1814541 (2d Cir. Apr. 26, 2024).
261
Id. at *14.
262
See, e.g., Order at para. 386 (“Given the protection of our open Internet rules, we do not find ex ante or ex post
rate regulation necessary for purposes of section 10(a)(1) and (a)(2), and we find it in the public interest to forbear
from applying sections 201 and 202 insofar as they would permit the adoption of such rate regulations for BIAS in
the future.”).
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known as “matches.”
263
NTIA encourages states, in distributing BEAD program support, to “encourage[]
to require a match from” participating broadband providers.
264
States “are required to” encourage
“matches of greater than 25 percent from [ISPs] wherever feasible” and must give preference to proposals
from broadband providers that commit to larger match amounts (and thereby will reduce the amount of
BEAD program funding needed to complete projects).
265
With or without matches, ISPs assume a great deal of upfront risk when they participate in
BEAD, which only covers the expenses of building broadband. BEAD does not cover the costs of
operating and maintaining broadband networks going forward. Those costs will fall entirely on ISPs. By
increasing ISPs’ costs and depressing their rates of return, Title II may cause ISPs to devote less private
capital for matches. With fewer matching funds, the federal government would spend more per location,
thereby accelerating the depletion of the BEAD fund. Perversely, Title II might magnify the risk that
BEAD leaves many parts of America behind.
That is to say nothing of the risk that some ISPs will decide that BEAD is not worth the financial
risk when their business motives are always questioned under a Title II regime. If ISPs opt out of BEAD,
that would not only increase the per-location cost, but it also could result in less-qualified ISPs’ receiving
a greater share of the available funding, further imperiling the initiative’s success.
The same is true of Open RAN. The Biden Administration has embraced Open RAN
technologies—whether to encourage more competition against dominant and untrustworthy equipment
vendors like Huawei and ZTE through an ecosystem of radio network manufacturers and interoperable
standards—or for other policy reasons. Open RAN proponents generally describe the technology as
critical to advancing both U.S. leadership in wireless and our national security.
For wireless providers with brownfield networks, however, Open RAN is an expensive
proposition. It requires providers to replace radio units and other proprietary components with new
equipment that is compatible with Open RAN standards. Many providers have not embraced Open RAN
out of the gate due to its questionable return on investment. Congress has sought to incentivize Open
RAN deployment by establishing a $1.5 billion Public Wireless Supply Chain Innovation Fund that is
administered by the Department of Commerce.
As noted above, Title II would chill infrastructure investment necessary for Open RAN’s success.
But it is even worse than that. Title II would eliminate some of the key advantages of Open RAN
standards. Popular implementations of Open RAN move much of the network’s intelligence from
equipment at the cell site to the core. Virtualized networks based in the cloud are attractive because they
allow for the kinds of network management that Title II suddenly imperils, including network slicing and
artificial intelligence. Superimposing a “mother, may I” regime would threaten Open RAN technology
right at the time when the ecosystem needs more incentives and investment.
3. Market Power and Competition
1. As if the last six years never happened, today’s Order reinstates the 2015 Title II Order
through the regulatory equivalent of cut-and-paste. To justify this massive expansion in economic control
263
See NTIA, Broadband Equity, Access, and Deployment Program Notice of Funding Opportunity, § III.B.1 (May
12, 2022), https://broadbandusa.ntia.doc.gov/sites/default/files/2022-05/BEAD%20NOFO.pdf (BEAD NOFO).
264
BEAD NOFO § III.B.2.
265
Id.; see also id. §§ IV.B.7.a.ii, IV.B.7.b.i-.ii.
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over the broadband industry, today’s Order repeats the FCC’s speculative musings from 2010 and 2015
that ISPs have the “incentive and ability” to harm edge providers and consumers by favoring ISP-
delivered content, like pay-television bundles.
266
Broadband service is a two-sided market, and the Order must therefore rely on two distinct
market power claims: (1) an upstream market power claim, alleging that ISPs will choke off edge
providers by extracting anticompetitive tolls, and (2) a downstream market power claim, alleging that
consumers are locked in due to insufficiently robust retail competition.
One might have expected the Order to demonstrate evidence of market power or market failure to
support these conjectures. After all, the FCC
267
and federal courts
268
have determined that anticompetitive
vertical restraints, like the “foreclosure” and “self-preferencing” theories that animate large parts of the
Order, typically require a showing of market power absent direct evidence of consumer harm (which, as
noted above, does not exist). But the Order does not venture to prove market power, claiming that the
1996 Act does not require it.
269
Even as it disclaims the burden to prove market power or market failure, the Order turns around
and baldly asserts that broadband providers are “gatekeepers” that “generally possess some degree of
market power” that arises from “limited choice” and which “exacerbate[s]” the “incentive and ability” to
engage in anticompetitive conduct.
270
Elsewhere, the Order points to incomplete and gerrymandered
statistical evidence to suggest retail competition is weak.
271
The Order also labels ISPs as “terminating
access monopolies” over edge providers, an anachronistic term that is irrelevant to ISPs because it refers
to a market dynamic peculiar to the monopoly telephone system.
272
Reasoned decision-making is the very least required of administrative agencies like the FCC.
273
If Title II generally, and the Internet Conduct Rule specifically, depend on assumptions about the
economic structure of the ISP market, the Order must back those assumptions with rigorous analysis. If
the Order wishes to present an affirmative claim about the state of ISP competition, it should do so
266
Order at para. 464 & n.1859 (citing 2015 Title II Order at para. 75; 2010 Open Internet Order at para. 21).
267
Restoring Internet Freedom Order at para. 123.
268
Ohio v. American Express Co., 138 S. Ct. 2274, 2284 (2018) (to demonstrate indirectly that a vertical restraint in
a two-sided market violates Section 1 of the Sherman Act, the plaintiff must offer “proof of market power plus some
evidence that the challenged restraint harms competition”). See generally Herbert Hovenkamp, Antitrust and Self-
Preferencing, 38 Antitrust Vol. 1, at 7 (2023) (“To generalize, while current United States antitrust law has many
prohibitions on self-preferencing, they apply only when the firm in question has market power in the dominant good
and competitive harm results from the refusal to give equal treatment.”),
https://www.americanbar.org/content/dam/aba/publications/antitrust/magazine/2023/vol-38-issue-1/antitrust-and-
self-preferencing.pdf.
269
Order at para. 251.
270
Order at para. 471.
271
Order at para. 663.
272
Restoring Internet Freedom Order at n.493 (“We note that the terminating monopoly problem in voice
telecommunications is one created by common-carriage regulation, not one solved by it. Specifically, carriers must
interconnect with each other and originating carriers must pay terminating carriers rates set by the terminating
carrier in their tariff (with some government oversight). That leads to a “bargaining” situation where one party sets
the terms of the deal and the other must accept it or complain to the regulator—in other words, the regulations
prohibit a normal free market from developing. Such regulatory requirements do not exist in broadband.”).
273
State Farm, 463 U.S. at 52.
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directly instead of lobbing drive-by assertions. The Order cannot have it both ways, alleging market
power in passing while disavowing the legal obligation to prove it.
In any event, market power is the hallmark of Title II “common carrier” regulation.
274
So, to
apply monopoly-era Title II rules consistent with the APA’s requirement of reasoned decision-making, and
to support its finding that the benefits outweigh the costs, the FCC was obligated to prove the existence of
durable market power and a market failure that only common-carrier regulation could address.
2. Start with the Order’s upstream marker power claims about ISPs’ status as “gatekeepers” over
edge providers.
To see why a market power showing is necessary, consider a hypothetical. Say a small ISP in
Louisiana tries to restrict access to Netflix. Is that possibility real enough to justify regulation? Only if
the ISP can get away with it. And that depends on whether consumers can switch to another provider,
whether the ISP can realistically hold Netflix hostage to extract above-market rates, and whether the ISP
has a financial reason, like promoting a rival video service, to act this way.
If that hypothetical sounds far-fetched, it is. ISPs—especially the thousands of small ones across
the United States—cannot play hardball with the world’s largest tech companies. The companies that
primarily drive of Internet traffic—Microsoft, Google, Meta, Amazon, Apple—have market
capitalizations in the trillions of dollars. The Restoring Internet Freedom Order observed that “the
market capitalization of the smallest of these five companies, Amazon, is more than twice that of the
largest ISP, Comcast, and the market capitalization of Google alone is greater than every cable company
in America combined.”
275
Since 2017, the power differential between Big Tech and ISPs has ballooned as the market
capitalization of each Big Tech firm has climbed from the hundreds of billions of dollars in 2017 into the
trillions of dollars in 2024.
276
The idea that ISPs, especially the hundreds of small and rural ISPs across
the country, can exercise “gatekeeper” power over Big Tech is farfetched. Yet that is exactly what the
Order assumes in all cases, for all providers in all markets, based on zero proof, and regardless of the
facts.
The Order’s reliance on ipse dixit instead of actual evidence of market power is especially
inexcusable in 2024, even if the FCC might have gotten away with it in 2015.
277
Back then, the FCC
applied Title II to ISPs for the first time in American history. Some measure of predictive judgment might
have been acceptable at the time. Now we have a natural experiment: two years with Title II (2015-2017)
and the last six years without it (2018-2024). As noted above, the Order cannot point to an example after
2017 where a provider successfully leveraged gatekeeper power in the way net neutrality proponents
envision. It is no longer enough for the FCC to engage in fact-free postulation, as the Order does today,
that broadband providers are “gatekeepers” with the “incentive and ability” to harm edge innovation.
278
274
Restoring Internet Freedom Order at para. 123 (“The premise of Title II and other public utility regulation is that
ISPs can exercise market power sufficient to substantially distort economic efficiency and harm end users.”).
275
Restoring Internet Freedom Order at para. 134.
276
Companies Market Cap, Largest Companies by Market Cap, https://companiesmarketcap.com/ (last visited Apr.
24, 2024).
277
U.S. Telecom II, 825 F. 3d at 708 (D.C. Cir. 2016).
278
The Order floats the self-defeating thesis that state net neutrality regulation of ISPs prevented such behavior after
2017. See Order at para. 493. Even if that were true, it would obviate the need for Title II at the federal level.
Federal Communications Commission FCC 24-52
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Apart from the Order’s lack of evidence, it is difficult to imagine a scenario under which the
FCC’s gatekeeper theory of broadband would be plausible. That is because both the “incentive” and the
“ability” sides of the equation fall short. And that is even more true today than it was in 2015 or 2017.
Start with ISPs’ “incentive.” Net neutrality was originally premised on the idea that broadband
providers would unfairly compete with edge providers in preferencing ISPs’ rival media, content, and
other applications.
279
An ISP’s control over the last mile, according to Big Tech talking points, would
provide an anticompetitive advantage to dictate consumer choices and keep them in walled gardens.
If that were true, ISPs would have a chokehold on pay-television—once the crown jewel from a
revenue standpoint—after 2017. But linear, facilities-based television—whether satellite TV or cable—
has experienced a freefall as millions of consumers switched to over-the-top video offered by streaming
behemoths like Netflix and Disney+.
280
And while broadband providers once considered expanding their
businesses to the edge more than a decade ago, that experiment turned out to be a failure for market-based
reasons. ISPs have since reversed course and deleveraged, returning their focus to connectivity.
281
The idea of net neutrality also originated during an era of crude network management techniques
and crippling bandwidth scarcity. When they offered 56 kbps speeds, ISPs faced severe capacity
constraints and struggled to keep up with peer-to-peer sharing and web 2.0 startups, whose success
resulted in an explosion of traffic. Whatever the merits of net neutrality as an economic construct nearly
25 years ago, it holds no relevance today. Bandwidth is more plentiful and far cheaper than ever, even
compared to the last Title II proceeding six years ago. A provider’s revenue per megabyte has declined by
orders of magnitude since 2017,
282
after ISPs invested billions of dollars to boost network capacity
through spectrum, fiber, infrastructure, and intelligent network management.
Providers also have far less “ability” to behave in the way that the Order supposes. Since 2015,
Big Tech has dominated the modern economy to the point where Congress and competition agencies
worldwide have taken action. The idea that even the largest ISP holds enough negotiating leverage to
threaten cutting off Amazon Prime or Apple+ is laughable. For one, Big Tech is heavily invested in
internet infrastructure, including content delivery networks, cloud backends, fiber, and undersea cables,
which also carry unaffiliated ISP traffic. That means the leverage is not one-sided, and ISPs also depend
279
Tim Wu, Network Neutrality, Broadband Discrimination, 2 J. on Telecomm. & High Tech. L. 141 (2003); Mark A
Lemley & Lawrence Lessig, The End of End-to-End: Preserving the Architecture of the Internet in the Broadband
Era, 48 UCLA L. Rev. 925 (2001).
280
See Pew Research Center, Cable and Satellite TV Use Has Dropped Dramatically in the U.S. since 2015 (Mar.
17, 2021), https://www.pewresearch.org/short-reads/2021/03/17/cable-and-satellite-tv-use-has-dropped-
dramatically-in-the-u-s-since-2015/; NS Screen Media, US Traditional Pay TV, https://nscreenmedia.com/us-pay-tv/,
(last visited Apr. 24, 2024); Keith Nissen, US Q3’23 Video Cord Cutter Update: Viewing Live TV Makes a
Comeback (Nov. 8, 2023), https://www.spglobal.com/marketintelligence/en/news-insights/research/us-q3-23-video-
cord-cutter-update-viewing-live-tv-makes-a-comeback.
281
See, e.g., Press Release, AT&T, AT&T Discovery Close WarnerMedia Transaction (Apr. 8, 2022),
https://about.att.com/story/2022/close-warnermedia-transaction.html.
282
Bryan Keating, An Economic Analysis of Mobile Wireless Competition in the United States, at para. 43 (Dec. 11,
2023), https://api.ctia.org/wp-content/uploads/2023/12/CL_Dec-2023.pdf (attached to Comments of CTIA, WC
Docket No. 23-320 (Dec. 14, 2023) (Mobile Wireless Competition) (“Revenue per GB has declined by 98 percent
since 2012 and by 75 percent since 2017.”).
Federal Communications Commission FCC 24-52
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on Big Tech for critical connectivity inputs. Since 2015, Big Tech has shown that it will retaliate against
companies who play hardball in the way the Order envisions.
283
3. Now turn to downstream market power, concerning the state of retail competition and the
extent to which consumers are locked into their current ISPs.
The disciplining effect of competition explains why ISPs lack the “incentive” or “ability” to
restrict access to content. Consumers enjoy more choices as intermodal competition has intensified since
2017. In what is by now a familiar pattern, the Order discounts the existence of ISP competition without
undertaking a rigorous competition analysis. The Order asserts, without offering data, that “switching
costs” remain high.
284
It suggests, without saying so, that new forms of intermodal ISP competition are
not viable substitutes.
285
And it relies on the artificially high speed benchmark of 100/20 Mbps, without
explaining why consumers are “unserved” if they do not have a 20 Mbps upload speed that bears little
practical relevance to modern edge services.
286
The evidence belies the Order’s prognostications about the state of ISP rivalry. By any measure,
the competitive melee for customers is more cutthroat than ever. Just look at how much ISPs spend on
advertising, which demonstrates not only their need to attract and keep customers, but also their belief
that consumers are willing to switch.
287
Or look at the rate of churn, which exemplifies consumers’
revealed willingness to switch.
288
Or look at the declining average revenue per user (ARPU), which
illustrates competitive pressures on profitability.
289
Or look at the existence of new entrants in the fixed wireless, satellite, and fiber sectors. The
FCC’s latest data shows 2,193 fixed ISPs, 1,534 of which offer broadband over fiber to the premises.
There are also 57 separate operators offering mobile broadband, 54 of which offer 4G LTE service and 16
of which offer 5G service. According to the latest National Broadband Map, 100% of serviceable
locations have 25/3 Mbps service and 99.96% have 100/20 Mbps service. In the latest Section 706
283
See, e.g., Tim Marcin, Meta briefly blocked a local news organization critical of Facebook, Mashable (Apr. 6,
2024), https://mashable.com/article/meta-block-kansas-reflector.
284
See Order at para. 471 & n.1874.
285
See Order at para. 473 & n.1882.
286
Dissenting Statement of Commissioner Brendan Carr, Inquiry Concerning the Deployment of Advanced
Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, Section 706 Report, GN
Docket No. 22-270, FCC 24-27 (Mar. 14, 2024), https://docs.fcc.gov/public/attachments/DOC-401205A3.pdf.
287
See Declaration of Mark Israel, Brian Keating & Allan Shampine, at para. 71 (appended to NCTA Comments,
WC Docket No. 23-320 (Dec. 14, 2023), https://www.fcc.gov/ecfs/document/121484978453/1).
288
Mobile Wireless Competition, at para. 59 (noting a monthly average churn of 1.53% for wireless carriers,
translating to 18% turnover from one carrier to another on an annualized basis).
289
Mobile Wireless Competition, at para. 42 (cleaned up) (“CTIA data indicate that ARPU declined by 29 percent
from 2012 to 2022 when excluding equipment revenue and by 16 percent when including equipment revenue. CTIA
data also show declines in ARPU from $38.66 in 2017 to $34.56 in 2022 (a decline of approximately eleven percent)
even as the BLS indices were approximately flat. Taking general inflation into account reveals even more favorable
price trends: the real (as opposed to nominal) ARPU has declined by 45 percent since 2012 and by 26 percent since
2017.”).
Federal Communications Commission FCC 24-52
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Report, the FCC estimates 99.7% of households have more than three options for 25/3 Mbps service and
more than 60% of households have multiple options for 100/20 Mbps service.
290
For one, wireless ISPs—both traditional mobile broadband operators and WISPs—are leveraging
network improvements to offer fixed wireless to the home at a breakneck pace. 5G fixed wireless access
is growing so rapidly that it accounted for 90% of the net new broadband subscriptions in 2022, compared
to only 20% in 2021.
291
According to Ookla, fixed wireless has taken market share from cable and DSL
providers, and the “aggressive pricing strategies of [fixed wireless] providers have driven prices down
across the market, with cable providers for example offering slimmed down broadband and content
packages at competitive prices, while AT&T Fiber now prices its entry fiber package of 300 Mbps at
$55/month.”
292
Fixed wireless is projected to account for approximately 90% of net subscriber additions
over the next couple of years.
293
All told, the latest Broadband Map shows 66.0 million locations with
fixed wireless service at 100/20 Mbps.
For another, the industry is in the middle of a massive fiber rollout. That is especially so for
traditional wireless carriers that are building out their wireline assets. Verizon has invested billions in its
Fios network, a “wide-scale, all-fiber deployment to bring new broadband competition” that is expected
to pass 18 million homes by the end of 2025.
294
AT&T has already deployed fiber-based broadband to
more than 26 million locations.”
295
T-Mobile has rolled out fiber in 13 markets at symmetrical 2 Gbps
speeds.
296
And for another, low-earth orbit satellite ISPs now provide new sources of intermodal
competition. Satellite providers offered high-speed broadband at 100/20 Mbps speeds to 99.6% of
locations, as of June 30, 2023. That is up from 16.09% according to the previous version of the FCC’s
National Broadband Map. Starlink successfully launched approximately 1,000 satellites between
December 31, 2022 and June 30, 2023.
297
290
Section 706 Report at Fig. 6; Order at para. 471.
291
See Leichtman Rsch. Grp. Press Release, About 3,500,000 Added Broadband from Top Providers in 2022 (Mar.
2, 2023), https://leichtmanresearch.com/about-3500000-added-broadband-fromtop-providers-in-2022/.
292
Mike Giles, U.S. – The Rise of 5G FWA & the Battle for Fixed Broadband Customers (Dec. 20, 2023),
https://www.ookla.com/articles/fixed-wireless-access-us-q3-2023.
293
Mike Dano, FWA to Remain 'Biggest Disruptor' through 2024 (June 29, 2023),
https://www.lightreading.com/fixed-wireless-access/fwa-to-remain-biggest-disruptor-through-2024
294
Masha Abarinova, Verizon Fiber Exec Dishes on Build Progress, Cell Site Upgrades (Oct. 3, 2023),
https://www.fiercetelecom.com/broadband/verizon-fiber-exec-dishes-build-progress-cell-site-upgrades.
295
Sean Buckley, AT&T eyes extending its fiber reach beyond its 30M target, Broadband News (Jan. 24, 2024),
https://www.broadbandtechreport.com/home/article/14304075/att-eyes-extending-its-fiber-reach-beyond-its-30m-
target.
296
Linda Hardesty, T-Mobile Now Offers Fiber Broadband in 13 Markets (Feb 7, 2024),
https://www.fiercetelecom.com/broadband/t-mobile-now-offers-fiber-broadband-13-markets.
297
See Wikipedia, List of Starlink and Starshield launches,
https://en.wikipedia.org/wiki/List_of_Starlink_and_Starshield_launches (last visited Mar. 8, 2023).
Federal Communications Commission FCC 24-52
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4. Prices, Speed, and Availability
The FCC’s claim that Title II is necessary to ensure improved connectivity also fails. The robust
competition and investment since our return to Title I has brought better performance to consumers. The
proof can be seen in the latest data from Ookla:
• Median fixed download speeds in the U.S. have increased by more than five-fold or
approximately 430% since 2017, according to Ookla data.
• Median mobile download speeds have increased by more than seven-fold or approximately 647%
since 2017, according to Ookla data.
• The United States has leapfrogged other countries since 2017 and now ranks among the highest in
the world for fixed, mobile, and 5G broadband speeds, according to Ookla data.
Industry data tells a similar story. 5G wireless networks are capable of delivering peak speeds up
to 20 Gbps and average speeds of greater than 100 Mbps.
298
Median download speeds have quadrupled
over the past seven years and have more than doubled in the past three years.
299
Starlink’s average
download speed increased from 89.38 Mbps to 129.64 Mbps from 2022 to 2023, upload speed increased
from 10 Mbps to 15 Mbps, and latency decreased by 10ms.
300
And prices? They’re down across the board since we returned to Title I. From 2022 to 2023, the
inflation-adjusted price of fixed providers’ most popular broadband speed tier dropped by 18.1%, and the
price of fixed providers’ fastest speed tier option dropped by 6.5%.
301
The U.S. weighted average
nominal price for the most popular speed tiers by subscription has decreased by 37% over the past eight
years (54.7% drop adjusting for inflation), and the weighted average price for the fastest speed tiers has
decreased by 38.6% (55.8% drop adjusting for inflation).
302
The declining cost of consumer broadband
stands in marked contrast to the rising cost of other essential consumer goods and services, which have
increased during the same period by approximately 28%.
303
As for mobile broadband, inflation-adjusted
real prices have dropped by 18-19% since 2017.
304
In contrast to America’s successful, light-touch approach, regulators in Europe have long applied
centralized, utility-style controls to their continent’s Internet infrastructure. This is a marked difference
from the light-touch approach that a bipartisan set of U.S. lawmakers pioneered in 1996 and applied to
298
Qualcomm, Everything you need to know about 5G, https://www.qualcomm.com/5g/what-is-5g (last visited Apr.
24, 2024).
299
Mobile Wireless Competition at para. 4.
300
Jessica Dine & Joe Kane, The State of US Broadband in 2022: Reassessing the Whole Picture, Info. Tech. &
Innovation Found. (Dec. 5, 2022), https://itif.org/publications/2022/12/05/state-of-usbroadband-in-2022-reassessing-
the-whole-picture/; Brian Westover, Starlink Speed: How Much Faster Is Elon’s Satellite Internet in 2023 vs. 2022?,
PC Mag. (May 17, 2023), https://www.pcmag.com/news/starlinkspeed-tests-2023-vs-2022.
301
Arthur Menko, 2023 Broadband Pricing Index, USTelecom, https://ustelecom.org/wp-
content/uploads/2023/10/USTelecom-2023-BPI-Report-final.pdf.
302
Id.
303
See id; see also News Release, Bureau of Labor Statistics, Consumer Price Index – October 2023 (Nov. 14,
2023), https://www.bls.gov/news.release/archives/cpi_11142023.htm.
304
Mobile Wireless Competition, at para. 40.
Federal Communications Commission FCC 24-52
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networks here in America—an approach that has allowed the free and open Internet to thrive in this
country and our Internet economy to become the envy of the world. Indeed, networks in America far
outpace those in Europe.
• U.S. networks are faster than in every single country in Europe, as Ookla’s fixed, median
download speed rankings show.
305
• U.S. networks are more competitive than those in Europe, with the U.S. having a nearly two-fold
or 40 percentage point lead (87% to 45%) when it comes to households with access to two or
more wired, facilities-based providers.
306
• U.S. networks bridge the digital divide more so than those in Europe, with the U.S. leading
Europe by 11 percentage points (98% to 87%) when it comes to households with high-speed,
fixed broadband, and by an even larger, 31 percent (91% to 60%) in rural areas.
307
• U.S. 5G networks cover 95% of the U.S. population compared to just 72% in Europe, according
to EU officials.
308
• U.S. networks are benefiting from providers here investing three-fold more per household than
their European counterparts.
309
Indeed, this gap is why one of the EU’s top regulators recently remarked that “[i]n terms of 5G
deployment, the EU lags behind other regions of the world.”
310
During the pandemic, as remote work and stay-at-home mandates spread across the world,
Internet traffic surged dramatically. With the sudden spike in online traffic, COVID-19 represented the
ultimate stress test for a country’s approach to network regulation. In Europe, regulators responded to the
upswing in traffic by asking Netflix and YouTube to throttle down their online services “to prevent the
internet collapsing under the strain of unprecedented usage.”
311
Asking Netflix and others to ration their
Internet streams was part of what one EU regulator described as “a joint responsibility to take steps to
ensure the smooth functioning of the internet during the battle against the virus.”
312
305
Speedtest Global Index, Median County Speeds March 2024 (last visited Apr. 24, 2024),
https://www.speedtest.net/global-index.
306
See USTelecom, US vs. EU Broadband Trends 2012-2020, at 13 (Apr. 1, 2022) (“Broadband Trends”),
https://ustelecom.org/research/us-eu-broadband-trends/.
307
See id.
308
See Foo Yun Chee, EU’s Breton Cites Telcos’ Investment Gap for Big Tech Network Fee Push, Reuters (June 6,
2023) (Reuters Story), https://www.reuters.com/business/media-telecom/eus-breton-cites-telcos-investment-gap-big-
tech-network-fee-push-2023-06-06/.
309
See Broadband Trends at 13.
310
See Reuters Story.
311
See Hadas Gold, Netflix and YouTube are Slowing Down in Europe to Keep the Internet from Breaking, CNN
(Mar. 20, 2020), https://www.cnn.com/2020/03/19/tech/netflix-internet-overload-eu/.
312
Id.
Federal Communications Commission FCC 24-52
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European regulators had good reason to think that their continent’s fragile, underinvested
networks—a product of Europe’s outdated utility regulation—would fail to sustain the surge in Internet
traffic that spiked in the spring of 2020. Indeed, “[t]he performance of the EU’s networks deteriorated
significantly” at the time and “Expose[d] Europe’s Creaking Internet for All to See,” as many reports
noted.
313
In the U.S., we did not have to ask streamers like Netflix or Disney+ to degrade the quality of
consumers’ streams because we got it right with our successful, light-touch approach to Internet
regulation. Our framework created the incentives for the private sector to invest massive, record-breaking
sums and build out robust, resilient, and competitive networks. Or, as former FCC Chairman Tom
Wheeler wrote while reflecting on the performance of U.S. networks during COVID-19: “Credit is due to
the nation’s broadband providers. The fact we can work from home is the result of hundreds of billions of
investment dollars and construction and operational skill.”
314
Here’s the bottom line. America’s networks are not broken. Our light-touch regulatory model
has not failed. But Europe’s utility-style regime has. But that will change with a return to Title II, as the
FCC emulates a regulatory framework that would make networks in America look more like the fragile,
underinvested ones in Europe.
B. New Title II Justifications Fare No Better: More Problems that Do Not Exist In
Search of Solutions that Do Not Work.
Given that the Commission cannot justify its return to Title II classification with evidence of new
open internet violations or a need to foster competition, investment, or innovation, the Commission
instead seeks refuge in a grab bag of new rationales that have nothing to do with “net neutrality”—such as
privacy, cybersecurity, national security, public safety, and network resiliency. None of them provide a
basis for today’s Order that would survive APA review.
1. National Security and Law Enforcement
The Order asserts that Title II will enhance the FCC’s ability to protect “networks from entities that
pose threats to national security and law enforcement.”
315
But this claim is nothing more than pretext.
For starters, the Order does not say specifically why the FCC’s oversight must be “enhanced” or
how Title II would accomplish it. At most, the Order vaguely insinuates that Title II is necessary to deal
with Chinese state-owned entities providing private data services on U.S. soil.
316
But the Order stops
short of claiming that the FCC could take additional action against these entities under Title II.
And for good reason. None of those providers—not China Telecom Americas, not China
Unicom, not Pacific Networks, and not ComNet—appears on the FCC’s list of 2000-plus ISPs that offer
313
See Chiara Albanese, Thomas Seal, Rodrigo Orihuela, Pandemic Exposes Europe’s Creaking Internet for All to
See, Bloomberg (Oct. 9, 2020), https://www.bloomberg.com/news/articles/2020-10-09/europe-s-bad-internet-risks-
missing-out-on-133-billion-a-year; Anna-Maria Kovacs, U.S. Broadband Networks Rise to the Challenge of Surging
Traffic During the Pandemic (June 2020), https://cbpp.georgetown.edu/news/anna-maria-kovacs-releases-policy-
paper-us-broadband-networks-rise-to-the-challenge-of-surging-traffic-during-the-pandemic/.
314
Tom Wheeler, Why the Internet Didn’t Break (Apr. 2, 2020), https://www.brookings.edu/articles/why-the-
internet-didnt-break/.
315
Order at para. 30.
316
Order at para. 36.
Federal Communications Commission FCC 24-52
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the kind of retail broadband service that Title II now covers.
317
That is because the FCC already revoked
their Section 214 authorizations without Title II authority over broadband.
318
At most, as their Form 499
registrations confirm, those companies currently either offer private data services, or are designated as no
longer active.
319
So, it is unclear how Title II gives the FCC additional authority against these entities.
To be sure, the Order does point to a real problem: ISPs interconnecting with PRC state-backed
carriers through their points-of-presence. That is why, since 2020, I have called for the FCC to “start a
proceeding that examines whether we should prohibit regulated carriers from directly interconnecting
with entities that pose a national security threat,” even if those entities do not have Section 214
authorizations. We did not need Title II to open such an inquiry.
320
And we could have addressed the
issue using a scalpel instead of a chainsaw. But this FCC did not seem interested in exploring such an
option. The FCC’s failure to examine this long-known issue belies its stated concern for national security
here, and provides more evidence that national security is merely a pretext for more control over the
broadband industry.
Indeed, it would be quite odd if, as the Order suggests, the U.S. government were powerless to
address these cyber threats or malicious foreign control over our Internet infrastructure in the absence of
President Roosevelt’s Title II. In fact, that is not the case. The U.S. government has ample authorities
today without Title II.
The Executive Branch already has the authority to prohibit Chinese entities from continuing to
offer private data services in the U.S. Indeed, President Trump issued an Executive Order in 2019,
321
and
the Commerce Department codified a set of implementing rules in 2021,
322
that are more than sufficient
to deal with this specific threat. These authorities allow the Secretary of Commerce to prohibit
“information communications technologies and services” subject to the control or influence of foreign
adversaries that pose unacceptable risks to national security. The Commerce Secretary’s authority
extends broadly over foreign adversary hardware or software “primarily intended to fulfill or enable the
317
See FCC National Broadband Map, “Provider Summary – Fixed Broadband,”
https://broadbandmap.fcc.gov/datadownload/nationwide-data?version=jun2023.
318
See China Telecom (Americas) Corporation, GN Docket No. 20-109, File Nos. ITC-214-20010613-00346,
ITC214-20020716-00371, ITC-T/C-20070725-00285, Order on Revocation and Termination, 36 FCC Rcd 15966
(2021) (China Telecom Americas Order on Revocation and Termination), aff’d China Telecom (Americas) Corp. v.
FCC, 57 F.4th 256 (D.C. Cir. 2022); China Unicom (Americas) Operations Limited, GN Docket No. 20-110, File
Nos. ITC-214-20020728-00361, ITC-214-20020724-00427, Order on Revocation, 37 FCC Rcd 1480 (2022), argued
9th Cir. Argued Feb. 15, 2023; Pacific Networks Corp. and ComNet (USA) LLC, GN Docket No. 20-111, File Nos.
ITC214-20090105-00006, ITC-214-20090424-00199, Order on Revocation and Termination, 37 FCC Rcd 4220
(2022), aff’d Pacific Networks Corp. and ComNet (USA) LLC v. FCC, No. 22-1054 (D.C. Cir. 2023).
319
See, e.g., 499 Registration, China Telecom (Americas) Corporation,
https://apps.fcc.gov/cgb/form499/499detail.cfm?FilerNum=822646; 499 Registration, China Unicom Americas
Operations LTD, https://apps.fcc.gov/cgb/form499/499detail.cfm?FilerNum=824402; 499 Registration, Comnet
(USA), LLC, https://apps.fcc.gov/cgb/form499/499detail.cfm?FilerNum=823684.
320
Statement of Commissioner Brendan Carr, Pacific Networks Corp. and ComNet (USA) LLC, GN Docket No. 20-
111; ITC-214-20090105- 00006; ITC-214-20090424-00199, https://docs.fcc.gov/public/attachments/FCC-22-
22A3.pdf.
321
Exec. Order No. 13873, Securing the Information and Communications Technology and Services Supply Chain,
84 Fed. Reg. 22689 (May 15, 2019).
322
15 C.F.R. pt. 7.
Federal Communications Commission FCC 24-52
53
function of information or data processing, storage, retrieval, or communication by electronic means,”
including “transmission, storage or display.”
323
Today, security threats to Internet infrastructure are addressed by a combination of
multistakeholder initiatives, public-private partnerships, and Executive Branch agencies directly
accountable to the President as the commander in chief. These agencies include CFIUS, the Department
of Homeland Security (including CISA), the Department of Commerce, the Department of Justice
(including the FBI), and the Department of Defense. In recent years, the capabilities of these agencies
have been augmented to deal with emerging threats. Among these authorities, Congress established CISA
in 2018 as the Federal leader for cyber and physical infrastructure security.
324
And the Presidential Policy
Directive 21
325
and the National Infrastructure Protection Plan
326
designated DHS, not the FCC, as the
lead agency to address critical infrastructure threats in the communications sector.
Undeterred, the Order asserts that the FCC lacks the authority it needs to address national security
threats without Title II.
327
Here again, the Order identifies no such gap. If one existed, the FCC would
have gone straight to Congress instead of waiting years for the votes to push through Title II. Congress
would have then passed targeted legislation to deal with the threat. That is what normally happens. Two
recent examples include the Secure and Trusted Communications Network Act of 2019
328
and the Secure
Equipment Act of 2021,
329
which collectively prohibited FCC authorization of untrustworthy Chinese
equipment in the United States. It would be incredible, if it were true, that the FCC has known about a
national security threat for years now, simply stood by the wayside, did not seek to eliminate it through
existing authorities or new ones, and waited to raise it until now—in fact, that is not credible.
The Order also asserts that Title II will give the FCC a seat at the table to participate in a “whole-
of-government” approach to protect national security.
330
The Order identifies no empty seat. Indeed,
none of the Executive Branch agencies mentioned above came forward in this proceeding to support the
FCC’s view that it could not meaningfully contribute to national security. The Administration’s filing,
submitted by NTIA, offered the FCC tepid support at best on national security. NTIA said that “to the
extent that regulations are necessary, they should be narrowly tailored,” and asked the FCC to defer when
its authority “may overlap with that of another agency with appropriate expertise.”
331
Hardly a ringing
invitation for Title II.
323
15 C.F.R. § 7.2.
324
Cybersecurity and Infrastructure Security Agency Act of 2018, Pub. L. No. 115-278, 132 Stat. 4168.
325
The White House, Presidential Policy Directive 21, Critical Infrastructure Security and Resilience (Feb. 12,
2023), https://obamawhitehouse.archives.gov/the-press-office/2013/02/12/presidential-policy-directive-
criticalinfrastructure-security-and-resil.
326
DHS, National Infrastructure Protection Plan: Partnering for Critical Infrastructure Security and Resilience, at
23 (2013), https://www.cisa.gov/sites/default/files/publications/national-infrastructure-protection-plan-2013-508.pdf.
327
Order at para. 40.
328
See Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs,
Report and Order, Further Notice of Proposed Rulemaking, and Order, 34 FCC Rcd 11423, paras. 26, 43 (2019).
329
See Protecting Against National Security Threats to the Communications Supply Chain through the Equipment
Authorization Program, Report and Order, Order, and Further Notice of Proposed Rulemaking, 37 FCC Rcd 13493,
para. 32 (2022).
330
Order at para. 39.
331
Comments of NTIA, WC Docket No. 23-320, at 7 (Mar. 20, 2024).
Federal Communications Commission FCC 24-52
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As for law enforcement, the Department of Justice and the FBI have ample authority over ISPs
through the Foreign Surveillance Intelligence Act, the Electronic Communications Privacy Act, the
Wiretap Act, and other authorities. As for the FCC’s limited role, the Communications Assistance for
Law Enforcement Act (CALEA) already applies to broadband providers without Title II regulation.
332
2. Privacy and Data Security
As the Order tells it, the need to protect broadband privacy justifies Title II.
333
That is more than
wrong. By wresting oversight from the Federal Trade Commission, Title II creates a gaping doughnut
hole that would leave no broadband privacy rules in place.
As an initial matter, the Order identifies no privacy gap for the FCC to fill. The FTC already
regulates broadband providers and their privacy practices through its authority to enforce unfair and
deceptive trade practices under Section 5 of the FTC Act.
334
The FTC is recognized as the federal privacy
cop on the beat. Indeed, at this very moment, broadband consumers benefit from the same set of federal
privacy rules that protect consumers across the economy.
But those federal rules would go away if broadband were regulated under Title II. The FTC lacks
statutory authority over “common carrier” services, including those the FCC regulates under Title II.
335
The FCC is powerless to fill that regulatory gap using Title II. In a 2017 resolution adopted
pursuant to the Congressional Resolution Act (CRA), Congress prohibited the FCC from applying Title II
broadband privacy rules, which the FCC issued in 2016.
336
Because a rule disapproved by Congress
“may not be reissued in substantially the same form, and a new rule that is substantially the same . . . may
not be issued,” the FCC lacks authority to reissue any privacy rules that are “substantially the same” as
those in the FCC’s 2016 broadband privacy order.
337
While the Order claims that some baseline statutory privacy provisions could still apply to ISPs,
even with the 2017 congressional resolution, that assertion is dubious at best. First, voice “calls” are the
only telecommunications services specifically mentioned in Section 222. Indeed, the Order waives the
FCC’s existing CPNI rules to broadband providers, finding that they “were adopted to address specific
concerns in the voice context” and not a “good fit” for broadband.
338
Second, the CRA would not permit
the FCC to reinstate any one of the invalidated rules (or even some combination of them), even if the FCC
did not reinstate all of them.
339
That means the FCC could not reinstate the invalidated rules that would
332
Communications Assistance for Law Enforcement Act (CALEA) and Broadband Access and Services, First Report
and Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 14989 (2005).
333
Order at paras. 67-68.
334
15 U.S.C. § 45(a)(2).
335
15 U.S.C. § 45(a)(2).
336
See Joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the
rule submitted by the Federal Communications Commission relating to “Protecting the Privacy of Customers of
Broadband and Other Telecommunications Services,” Pub. L. No. 115-22, 131 Stat. 88 (2017) (2017 CRA) (stating,
consistent with the terms of the CRA, that the rules “shall have no force or effect”).
337
5 U.S.C. § 801(b)(2).
338
Order at para. 359.
339
Dissenting Statement of Commissioner Brendan Carr, Data Breach Reporting Requirements, Report and Order,
WC Docket No. 22-21, FCC 23-111, https://docs.fcc.gov/public/attachments/FCC-23-111A3.pdf.
Federal Communications Commission FCC 24-52
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extend Section 222 to broadband providers.
340
Nor could it reinstate a definition of CPNI that covers data
and metadata elements specifically collected by broadband providers.
341
Without these foundational
components, the FCC could take no further action over ISP privacy.
So, far from filling a gap in consumer privacy rules, the Order’s decision to apply Title II to
broadband would create one. And far from providing lawful justification for Title II, privacy
considerations provide one more reason why the Order is arbitrary and capricious.
3. Public Safety, Resiliency, and Reliability
The Order’s claim that Title II is necessary for public safety
342
rests on a single event that, it turns
out, has nothing to do with the FCC’s Title II net neutrality rules. In that 2018 incident, a fire department
purchased a data-limited plan that cost less than an unlimited data plan. When the fire department hit that
pre-specified limit, the service experienced a speed reduction as outlined in its plan before the provider
made an exception and lifted the reduction.
343
The FCC invokes this incident in a way that leaves one
with the impression that this violated net neutrality.
344
But it did not, as the FCC’s own rulemaking record makes clear. For one, the FCC’s Title II rules
do not apply to data plans marketed only to government users like public safety agencies. The 2015 Title
II Order carved out enterprise plans—like the plan Santa Clara subscribed to—from the definition of
“broadband internet access service.”
345
For another, the 2015 Title II Order expressly allowed data-
limited plans, like the plan Santa Clara voluntarily purchased.
346
Indeed, the Order notes all of these
points and does not disagree with them. That is why the Order studiously avoids stating that this type of
issue would be prevented by Title II despite the agency’s consistent invocation of the event.
347
The Santa Clara incident, to the extent it has any relevance, actually reveals the FCC’s deep
mischaracterization of public safety in the real world. The Order envisions that public safety
professionals will rely on the “best efforts” Internet,
348
and traffic would compete with cat videos for
scarce bandwidth. But that is not how public safety systems work. Not in the least. Rather, these
systems need the kind of priority treatment (known as “preemption”) that Title II would make illegal in
the retail context. As FirstNet describes it, preemption is a “mission-critical feature” that “moves first
responders to the front of the ‘communications line,’ prioritizing their network needs.”
349
In fact, public
340
Protecting the Privacy of Customers of Broadband and Other Telecommunications Services, et al., Order, 32
FCC Rcd 5442, at paras. 39-40 (2016), abrogated by 2017 CRA.
341
Id. at paras. 46-105.
342
Order at paras. 51-58, 451-463.
343
Daniel Lyons, One More Time: The Verizon-Santa Clara Fire Dispute Has Nothing to Do with Net Neutrality,
American Enterprise Institute (Nov. 13, 2019), https://www.aei.org/technology-and-innovation/one-more-time-the-
verizon-santa-clara-fire-dispute-has-nothing-to-do-with-net-neutrality/.
344
Order at para. 458.
345
2015 Title II Order at para. 207.
346
Id. at para. 82.
347
Order at para. 458-49.
348
Order at para. 52.
349
AT & T, FirstNet Launches Ruthless Preemption for First Responders (Dec. 12, 2017),
https://about.att.com/story/preemption_for_first_responders.html.
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safety represents one of the most obvious applications of network slicing,
350
another innovation the Order
would threaten to make illegal in the retail context. Prioritizing public safety is no different in concept
than allowing an ambulance to bypass traffic congestion to get to the hospital.
Stripped of a single example that proved nothing at all, the Order cannot point to a public-safety
consideration that Title II would improve:
• Not outage reporting in the Disaster Information Reporting System (DIRS), which the FCC
extended to ISPs, without Title II, to collect outage reports, operational status, and restoration
information;
351
• Not the Wireless Emergency Alert (WEA) program, which is voluntary by statute and already
commands participation from the three major wireless carriers;
352
• Not 911 outrage reporting, which already applies to cable, satellite, wireless and wireline
systems;
353
• Not network resiliency and reliability standards, which the FCC made mandatory on wireless
carriers a few years ago;
354
• And not disability access during emergencies, which is covered in the Digital Equity Order’s
nebulous rules over ISPs.
355
At bottom, resilient commercial networks and reliable public-safety systems depend on
investment and innovation. Thanks to massive investment over the last six years, America’s broadband
networks are more robust and resilient than ever, especially when compared to networks in countries with
far more heavy-handed or Title II-like regulatory regimes. Just look at Europe. When COVID-19 hit and
Internet traffic levels suddenly surged to unprecedented levels, median network speeds in America
exceeded those in the Old World by 83%.
356
Nothing would impair public safety, resiliency, or reliability
more than reducing private investment in American networks—which is precisely what Title II threatens
to do.
350
See Karen Schulz, Verizon Accelerates Network Slicing Technology with New Public Safety Use Case, Verizon
(Nov. 28, 2023), https://www.verizon.com/about/news/network-slicing-technology-public-safety.
351
See Resilient Networks et al., Second Report and Order and Second Further Notice of Proposed Rulemaking, PS
Docket No. 21-346 et al., FCC 24-5, at para. 10 (2024) (requiring “cable communications, wireline, wireless, and
interconnected VoIP providers (subject providers) to report their infrastructure status information in DIRS daily
when the Commission activates DIRS in geographic areas in which they provide service”).
352
See Warning, Alert, and Response Network Act, Title VI of the Security and Accountability for Every Port Act of
2006, Pub. L. No. 109-347, 120 Stat. 1884 (2006) (WARN Act); 47 U.S.C. § 1201(a); 47 C.F.R. § 10.10(d).
353
47 C.F.R. § 4.9.
354
See Resilient Networks et al., Report and Order and Further Notice of Proposed Rulemaking, 37 FCC Rcd 8059,
at para. 10 (2022).
355
Digital Equity Order at para. 102.
356
Anna-Maria Kovacs, U.S. Broadband Networks Rise to the Challenge of Surging Traffic During the Pandemic, at
3 (June 2020), https://georgetown.app.box.com/s/8e76udzd1ic0pyg42fqsc96r1yzkz1jf.
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4. Broadband Access and Infrastructure
The Order asserts that Title II will enhance access to pole attachments and allow for greater
regulation of multi-tenant environments (MTEs). But more than 96% of ISPs are already covered by
existing rules because they offer some other FCC-regulated service—whether voice telephony, VoIP, or
cable television.
357
The Order does not dispute that figure.
358
We need Title II for 100% of ISPs to deal
with something that has to do with only 4% of them? In any event, since 2017, the FCC has faced no
regulatory impediments to tightening its rules on MTEs or pole attachments.
359
Of the few broadband-only ISPs that exist, the Order utterly fails to demonstrate that they have
been stymied from pole access or face higher attachment costs that deter deployment or impede
competition. Likewise, the Order offers no examples of broadband-only ISPs’ exploiting their status to
engage in anti-competitive behavior with respect to MTEs, much less any evidence of a widespread
market failure attributable to the existing scope of the MTE regime.
If anything, Title II will deter broadband access and infrastructure deployment. The Commission
has historically preempted state, local, and private rules that impair the ability of antenna users to install,
maintain, or use such as small satellite TV dishes. In 2021, the Commission preempted state and local
regulation of over-the-air reception devices (OTARDs) for fixed wireless access.
360
Because the
Communications Act preserves some state and local regulation over certain Title II “commercial mobile
services,”
361
the 2021 OTARD rule limited preemption to information services, which at the time included
standalone fixed wireless.
362
Title II reclassification, however, will likely invalidate the legal basis for the
2021 OTARD rule and open the door for state and local regulation that could frustrate fixed wireless
adoption. This is more than theoretical, as state and local governments have called for Title II so they can
penalize broadband providers and slow down infrastructure deployment through pretextual
regulation.
363
5. Accessibility
The Order asserts that Title II will improve access for those with disabilities.
364
In the four
paragraphs devoted to the topic, the draft Order identifies no example of an accessibility problem that
Title II is necessary to solve. The FCC already has broad authority under the Twenty-First Century
Communications and Video Accessibility Act (CVAA) to ensure that “advanced communications
services” are accessible to and usable by people with disabilities. The CVAA does not turn on Title II.
357
About 950,000 Added Broadband in Q3-2023, https://leichtmanresearch.com/wp-content/uploads/2023/11/LRG-
Press-Release-11-13-2023.pdf; accord Restoring Internet Freedom Remand Order at para. 73; Order at para. 88.
358
Order at para. 88.
359
See, e.g., Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment,
Fourth Report and Order, Declaratory Ruling, and Third Further Notice of Proposed Rulemaking, WC Docket No.
17-84, FCC 23-109 (2023); Improving Competitive Broadband Access to Multiple Tenant Environments, Report and
Order and Declaratory Ruling, 37 FCC Rcd 2448 (2022).
360
Updating the Commission’s Rule for Over-the-Air Reception Devices, Report and Order, 36 FCC Rcd 537, at
para. 20 (2021).
361
See 47 U.S.C. § 332(c)(7)(A).
362
47 C.F.R. § 1.4000(a)(5).
363
Order at para. 80 (crediting the CPUC’s argument that Title II would allow state and local governments to apply
“safety regulations” to ISPs).
364
Order at paras. 102-105.
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Furthermore, the Digital Equity Order already governs disparate treatment by ISPs against persons with
disabilities.
III. CONCLUSION
As I noted at the beginning of this proceeding, I am well aware that neither my position nor
reason will prevail today. Reinstating Title II is now an article of faith for many in Washington (and a
handy fundraising tool to boot).
But make no mistake: this FCC decision to impose Title II on the Internet will be overturned by
the courts, by Congress, or by a future FCC.
I dissent.
