MANU/UDCC/0245/2016

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

Appeal No. 15-1063

Decided On: 14.06.2016

Appellants: United States Telecom Association Vs. Respondent: Federal Communications Commission and United States of America

Hon'ble Judges/Coram:
Tatel, Srinivasan, Circuit Judges, Williams

JUDGMENT

Opinion for the Court filed by Circuit Judges Tatel and Srinivasan.

Opinion concurring in part and dissenting in part filed by Senior Circuit Judge WILLIAMS.

TATEL and SRINIVASAN, Circuit Judges: For the third time in seven years, we confront an effort by the Federal Communications Commission to compel internet openness- commonly known as net neutrality-the principle that broadband providers must treat all internet traffic the same regardless of source. In our first decision, Comcast Corp. v. FCC, MANU/UDCC/0031/2010 : 600 F.3d 642 (D.C. Cir. 2010), we held that the Commission had failed to cite any statutory authority that would justify its order compelling a broadband provider to adhere to certain open internet practices. In response, relying on section 706 of the Telecommunications Act of 1996, the Commission issued an order imposing transparency, antiblocking, and anti-discrimination requirements on broadband providers. In our second opinion, Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), we held that section 706 gives the Commission authority to enact open internet rules. We nonetheless vacated the anti-blocking and anti-discrimination provisions because the Commission had chosen to classify broadband service as an information service under the Communications Act of 1934, which expressly prohibits the Commission from applying common carrier regulations to such services. The Commission then promulgated the order at issue in this case-the 2015 Open Internet Order-in which it reclassified broadband service as a telecommunications service, subject to common carrier regulation under Title II of the Communications Act. The Commission also exercised its statutory authority to forbear from applying many of Title II's provisions to broadband service and promulgated five rules to promote internet openness. Three separate groups of petitioners, consisting primarily of broadband providers and their associations, challenge the Order, arguing that the Commission lacks statutory authority to reclassify broadband as a telecommunications service, that even if the Commission has such authority its decision was arbitrary and capricious, that the Commission impermissibly classified mobile broadband as a commercial mobile service, that the Commission impermissibly forbore from certain provisions of Title II, and that some of the rules violate the First Amendment. For the reasons set forth in this opinion, we deny the petitions for review.

I.

Called "one of the most significant technological advancements of the 20th century," Senate Committee on Commerce, Science and Transportation, Report on Online Personal Privacy Act, Sen. Rep. No. 107-240, at 7 (2002), the internet has four major participants: end users, broadband providers, backbone networks, and edge providers. Most end users connect to the internet through a broadband provider, which delivers high-speed internet access using technologies such as cable modem service, digital subscriber line (DSL) service, and fiber optics. See In re Protecting and Promoting the Open Internet ("2015 Open Internet Order" or "the Order"), 30 FCC Rcd. 5601, 5682-83 188, 5751 346. Broadband providers interconnect with backbone networks- "long-haul fiber-optic links and high-speed routers capable of transmitting vast amounts of data." Verizon, 740 F.3d at 628 (citing In re Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control, 20 FCC Rcd. 18,433, 18,493 110 (2005)). Edge providers, like Netflix, Google, and Amazon, "provide content, services, and applications over the Internet." Id. at 629 (citing In re Preserving the Open Internet ("2010 Open Internet Order"), 25 FCC Rcd. 17,905, 17,910 13 (2010)). To bring this all together, when an end user wishes to check last night's baseball scores on ESPN.com, his computer sends a signal to his broadband provider, which in turn transmits it across the backbone to ESPN's broadband provider, which transmits the signal to ESPN's computer. Having received the signal, ESP........