ORAL ARGUMENT SCHEDULED FOR DECEMBER 4, 2015 No. 15-1063 (and consolidated cases) ______________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ______________________________________________________________ UNITED STATES TELECOM ASSOCIATION, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, Respondents. ______________________________________________________ On Petition for Review from the Federal Communications Commission ______________________ BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER FOUNDATION, AMERICAN CIVIL LIBERTIES UNION, AND THE AMERICAN CIVIL LIBERTIES UNION OF THE NATION’S CAPITAL IN SUPPORT OF THE RESPONDENTS ______________________ LEE ROWLAND SAMIA HOSSAIN AMERICAN CIVIL LIBERTIES UNION 125 Broad Street New York, NY 10004 Tel: (212) 549-2550 Email:lrowland@aclu.org September 21, 2015 ARTHUR B. SPITZER AMERICAN CIVIL LIBERTIES UNION OF THE NATION’S CAPITAL 4301 Connecticut Ave. Washington, D.C. 20008 Tel: (202) 457-0800 Email: artspitzer@aclu-nca.org CORYNNE MCSHERRY KIT WALSH LEE TIEN ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109 Tel: (415) 436-9333 Facsimile: (415) 436-9993 Email: corynne@eff.org Counsel for Amici Curiae USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 1 of 73 i CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES Pursuant to D.C. Circuit Rules 26.1 and 28(a)(1), and Fed. R. App. P. 26.1, the undersigned counsel certifies as follows: A. Parties and Amici Except for the following amici, all parties and intervenors appearing before the FCC and this Court are listed in the Joint Brief for Petitioners United States Telecom Association et al. In this Court, the following amici have been granted leave to participate: • Harold Furchtgott-Roth • Internet Association • Washington Legal Foundation • Consumers Union • Competitive Enterprise Institute • American Library Association • Richard Bennett • Association of College and Research Libraries • Business Roundtable • Association of Research Libraries • Center for Boundless Innovation in Technology • Officers of State Library Agencies • Chamber of Commerce of the United States of America USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 2 of 73 ii • Open Internet Civil Rights Coalition • Georgetown Center for Business and Public Policy • International Center for Law and Economics and Affiliated Scholars • William J. Kirsch • Computer & Communications Industry Association • Mobil Future • Mozilla • Multicultural Media, Telecom and Internet Council • Engine Advocacy • National Association of Manufacturers • Phoenix Center for Advanced Legal and Economic Public Policy Studies • Dwolla, Inc. • Telecommunications Industry Association • Our Film Festival, Inc. • Christopher Seung-gil Yoo • Foursquare Labs, Inc. • General Assembly Space, Inc. • Github, Inc. • Imgur, Inc. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 3 of 73 iii • Keen Labs, Inc. • Mapbox, Inc. • Shapeways, Inc. • Automattic, Inc. • A Medium Corporation • Reddit, Inc. • Squarespace, Inc. • Twitter, Inc. • Yelp, Inc. • Media Alliance • Broadband Institute of California • Broadband Regulatory Clinic • Tim Wu • Edward J. Markey • Anna Eshoo • Professors of Administrative Law • David T. Goldberg • Joseph Carl Cecere, Jr. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 4 of 73 iv B. Rulings Under Review The ruling under review is the FCC’s Report and Order on Remand, Declaratory Ruling, and Order, Protecting and Promoting the Open Internet, 30 F.C.C. Rcd. 5601 (2015) (“Order”) [JA___]. C. Related Cases There are no other cases related to the consolidated petitions. September 21, 2015 /s/ Corynne McSherry Corynne McSherry USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 5 of 73 v CORPORATE DISCLOSURE STATEMENT Pursuant to D.C. Circuit Rule 26.1 and Federal Rule of Appellate Procedure 26.1, amici submit the following corporate disclosure statement: Amicus Electronic Frontier Foundation (“EFF”) is a donor-funded, non- profit civil liberties organization. EFF has no parent corporation, and does not issue stock. Amici American Civil Liberties Union (“ACLU”) and American Civil Liberties Union of the Nation’s Capital are privately-funded, non-profit civil liberties organizations. The ACLU and ACLU of the Nation’s Capital have no parent corporation, and do not issue stock. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 6 of 73 vi TABLE OF CONTENTS CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ............. i  CORPORATE DISCLOSURE STATEMENT ........................................................ v  TABLE OF CONTENTS ........................................................................................ vi  TABLE OF AUTHORITIES ................................................................................. viii  GLOSSARY .......................................................................................................... xiii  INTEREST OF AMICI ............................................................................................. 1  INTRODUCTION AND SUMMARY OF THE ARGUMENT .............................. 2  ARGUMENT ............................................................................................................ 5  I.   The Open Internet Is Essential to Speech and Innovation. ....................... 5  A.   The Internet Was Built on Principles of Neutrality. ...................... 5  B.   The Internet Is Now the Core Platform for Free Speech and Access to Knowledge. ................................................................ 9  C.   Permitting ISPs to Act as Gatekeepers Threatens Free Expression and Innovation. ...................................................... 11  D.   The BIAS Market Is a Dysfunctional, Government-Enabled Oligopoly. ................................................................................ 16  II.   First Amendment Principles Weigh in Favor of the Open Internet Order. ................................................................................................. 20  A.   The Order Constitutionally Regulates ISPs in Their Role as Conduits for Internet Speech. .................................................. 20  B.   The Open Internet Order Is Facially Content-Neutral and Survives Intermediate Scrutiny. ............................................... 25  III.   The Primary Guideposts for Any “Unreasonable Interference” Analysis Should Be Free Expression and Application Agnosticism. ....................................................................................... 27   USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 7 of 73 vii CONCLUSION ....................................................................................................... 31  CERTIFICATE OF COMPLIANCE ...................................................................... 33  CERTIFICATE OF FILING AND SERVICE ....................................................... 34   USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 8 of 73 viii TABLE OF AUTHORITIES* Cases  Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ............................................................................................ 23 Ashwander v. Tenn. Valley Auth., 297 U.S. 288 (1936) ............................................................................................ 28 Associated Press v. United States, 326 U.S. 1, 20 (1945) .......................................................................................... 21 Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................................................ 23 CBS, Inc v. FCC, 453 U.S. 367 (1981) ............................................................................................ 23 Clark v. Martinez, 543 U.S. 371 (2005) ............................................................................................ 28 First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) ............................................................................................ 23 Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990) ............................................................................................ 23 Miami Herald Pul’g. Co. v. Tornillo, 418 U.S. 241 (1974) ............................................................................................ 23 *Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) ................................................................ 2, 17, 20, 24, 25, 27 Reno v. ACLU, 521 U.S. 844 (1997) .................................................................................. 9, 22, 23 *Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) ............................................ 20, 21, 22, 23, 24, 25, 26, 27, 31 United States v. Comcast Corp. (Sept. 1, 2011) (No. 05-1631), 2011 WL 5402137 ........................................................................ 8 *Authorities upon which we chiefly rely are marked with asterisks. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 9 of 73 ix Verizon v. FCC, (No:11-1355) (July 2, 2012), 2012 WL 9937411 ............................................... 21 Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) ...................................................................... 16, 18 Administrative Rulings  Amendment of Section 64.702 of the Commission ’s Rules and Regulations (Second Computer Inquiry), 77 F.C.C.2d 384 (1980) .......................................... 7 Madison River Commc ’ns, LLC and Affiliated Companies, 20 F.C.C. Rcd. 4295 (2005) ................................................................................ 13 MTS and WATS Market Structure, 97 F.C.C.2d 682 (1983) ................................... 7 Preserving the Open Internet, 25 F.C.C. Rcd. 17905 (2010) ............................ 16, 24 Proposals for New or Revised Classes of Interstate and Foreign Message Tolls Telephone Service (MTS) and Wide Area Telephone Service (WATS), 56 F.C.C.2d 593 (1975 ............................................................................................... 7 Other Authorities  @WhiteHouse, Twitter ............................................................................................. 3 1946: First Mobile Telephone Call ........................................................................ 17 2010 Election on YouTube: By the Numbers, CITIZENTUBE (Nov. 1, 2010) .......... 10 Adam Liptak, Verizon Blocks Messages of Abortion Rights Group, N.Y. TIMES (Sept. 27, 2007) ................................................................................................... 13 Alissa Cooper, How Regulation and Competition Influence Discrimination in Broadband Traffic Management: A Comparative Study of Net Neutrality in the United States and the United Kingdom (Sept. 2013) (University of Oxford) .... 12 Andrea Peterson, Why the Death of Net Neutrality Would Be a Disaster for Libraries, WASH. POST (May 16, 2014) ........................................................ 15 Ashraf M. Attia et al., Commentary: The Impact of Social Networking Tools on Political Change in Egypt ’s “Revolution 2.0,” 10 ELECTRONIC COM. RES. & APPLICATIONS (2011) ............................................................................................ 9 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 10 of 73 x AT&T Calls Censorship of Pearl Jam Lyrics an Error, REUTERS (Aug. 9, 2007) ...................................................................................... 13 Barbara van Schewick, Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like, 67 Stan. L. Rev. 1 (2015) ..................... 29 Body of European Regulators for Elec. Comm., A View of Traffic Management and Other Practices Resulting in Restrictions to the Open Internet in Europe (May 29, 2012) .................................................................................................... 12 Bruce A. Kushnick, The Book of Broken Promises: $400 Billion Broadband Scandal & Free the Net (2005) ........................................................................... 18 CIDR Report for 17 Sep 15, CIDR REPORT .............................................................. 5 Comment of Open Media and Information Companies Initiative (OpenMIC), et al., Promoting the Open Internet (GN Docket No. 14-28) (July 14, 2014) .... 15 Comments of Etsy, Inc., Promoting the Open Internet (July 8, 2014) (GN Docket Nos. 14-28 & 10-127) ..................................................................... 15 Complaint of Free Press Against Cellco Partnership d/b/a Verizon Wireless for Violating Conditions Imposed on C Block of Upper 700 Mhz Spectrum (June 6, 2011) ...................................................................................................... 13 Damien Cave & Rochelle Oliver, The Videos That Are Putting Race and Policing Into Sharp Relief, N.Y. Times (Aug. 12, 2015), .............................. 3 David Kravets, AT&T Holding FaceTime Hostage Is No Net-Neutrality Breach, WIRED.COM (Aug. 22, 2012) ............................................................................... 13 David N. Beede, U.S. Dep’t of Commerce, Competition Among U.S. Broadband Service Providers (Dec. 2014) ........................................................................... 19 DIY Video 2010: Political Remix (Part Two), MIT CTR. FOR CIVIC MEDIA (Nov. 15, 2010) ................................................................................................... 10 Erik Sherman, What will a non-neutral Internet really be like?, MONEYWATCH (Jan. 15, 2014) ....................................................................................................... 8 Ex Parte Submission of the U.S. Dep’t of Justice, Economic Issues in Broadband Competition, A National Broadband Plan for our Future (GN Docket No. 09-51) (Jan. 4, 2010) ....................................................................................................... 18 Fed. Commc ’ns Comm’n, September Commission Meeting Presentation 7 (2009) ............................................................................................................ 10, 11 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 11 of 73 xi Fed. Commc’ns Comm’n, FCC Chairman Tom Wheeler: More Competition Needed in High-Speed Broadband Marketplace (Dec. 2013) ............................. 19 Internet Users (Per 100 People), World Bank .......................................................... 3 James A. Gardner, Anonymity and Democratic Citizenship, 19 Wm. & Mary Bill Rts. J. 927 (2011) .................................................................................................. 3 Jason Oxman, The FCC and the Unregulation of the Internet 17 (FCC Office of Plans and Policy, Working Paper No. 31, July 1999) .......................................... 6 Jonathan Mayer, AT&T Hotspots: Now with Advertising Injection, WEB POLICY BLOG (Aug. 25, 2015) ............................................................................ 12 Julius Genachowski, Chairman, FCC, Remarks at the Joint Center for Political and Economic Studies: Media & Technology Policy Forum (Mar. 3, 2010) .............. 3 Karl Bode, Mediacom Not Talking about Javascript Ad Injection: Users Still Waiting on an Explanation, DSLREPORTS (Mar. 3, 2011) ................................. 12 Lee Rainie & Aaron Smith, Social Networking Sites and Politics: Main Findings, PEW RES. CTR. (Mar. 12, 2012) .......................................................................... 10 Letter from Open Engine & The Open Tech. Inst. at the New Am. Found., to Fed. Commc ’ns Comm’n (May 7, 2014) ................................................................... 15 Marguerite Reardon, FCC Rakes in $45 Billion from Wireless Spectrum Auction, CNET (Jan. 29, 2015) ......................................................................................... 24 Mike Masnick, Kickstarter, Etsy and Dwolla All Speak Out On Net Neutrality and Why the FCC’s Plan Is Dangerous to Innovation, TECHDIRT (July 11, 2014) ... 15 Monica Anderson & Andrea Caumont, How Social Media Is Reshaping News, PEW RES. CTR. (Sept. 24, 2014) ............................................................................ 9 Prepared Remarks of FCC Chairman Tom Wheeler, The Facts and Future of Broadband Competition (Sept. 4, 2014) ............................................................. 18 Press Release, Fed. Commc ’n Comm’n, Commission Orders Comcast to End Discriminatory Network Management Practices, (Aug. 1, 2008) ..................... 13 Press Release, Fed. Commc’ns Comm’n, News Release: Verizon Wireless to Pay $1.25 Million to Settle Investigation Into Blocking of Consumers ’ Access to Certain Mobile Broadband Applications (July 31, 2012) ................................... 13 Susan Crawford, Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age (2013) ............................................................................. 17 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 12 of 73 xii Teleheath Use in Rural Heathcare, RURAL ASSISTANCE CTR. ............................... 11 Telus Cuts Subscriber Access to Pro-union Website, CBCNEWS CAN. (July 24, 2005) ..................................................................................................... 12 U.S. Dep’t of State, Alerts and Warnings ................................................................. 3 Zachary M. Seaward, The Inside Story of How Netflix Came to Pay Comcast for Internet Traffic, QUARTZ (Aug. 27, 2014) .......................................................... 14 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 13 of 73 xiii GLOSSARY AA: Application Agnosticism. The Order defines an application-agnostic practice as one that either “does not differentiate in treatment of traffic, or . . . differentiates in the treatment of traffic without reference to content, application or device.”1 BIAS: Broadband Internet Access Service. The Order defines BIAS as: A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.2 FCC: Federal Communications Commission. ISP: Internet Service Provider. As used in this brief, the term generally refers to Broadband Internet Service Providers. 1 Order ¶ 144 n.344. 2 Id. ¶ 25. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 14 of 73 1 INTEREST OF AMICI3 EFF is a member-supported nonprofit organization devoted to protecting civil liberties and free expression in technology, law, policy, and standards. With over 27,000 dues-paying members, EFF is a leading voice in the global and national effort to ensure that fundamental liberties are respected in the digital environment. EFF has campaigned both in the United States and abroad against ill-considered efforts to block, filter, or degrade access to the public Internet. EFF develops and promotes tools that help consumers and public interest groups test their broadband connections to see if their providers are interfering with the traffic to and from users’ computers. EFF was among the first to independently test and discover the nature and scope of Comcast’s 2007 interference with BitTorrent and other peer-to-peer applications. The ACLU is a nationwide, nonprofit, nonpartisan organization with approximately 500,000 members dedicated to the principles of liberty and equality embodied in the Constitution and our nation’s civil rights laws. Founded in 1920, the ACLU has vigorously defended the First Amendment in state and federal courts across the country. See, e.g., Reno v. ACLU, 521 U.S. 844 (1997). The ACLU has also been at the forefront of efforts to ensure that the Internet remains a 3 No party’s counsel authored this brief in whole or in part. No party or party’s counsel, nor any person besides amici, their members, or their counsel contributed money toward this brief. Counsel for all parties have consented to, or indicated that they do not oppose, the filing of this brief. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 15 of 73 2 free and open forum for the exchange of information and ideas. The ACLU has served as counsel and amicus in several cases involving online speech. For years, the ACLU has advocated for net neutrality through legislative advocacy and public education efforts. The American Civil Liberties Union of the Nation’s Capital is the Washington, D.C., affiliate of the National ACLU. INTRODUCTION AND SUMMARY OF THE ARGUMENT Net neutrality is one of the most important free speech issues of the digital age. Fair access to high-quality Internet is essential to our ability to retrieve and share information, which in turn enables us to shape our political, civic, and social discourse. Internet Service Providers (“ISPs”) hold the key to this world of information. Absent effective neutrality rules, ISPs can—and some undoubtedly will—act as gatekeepers to digital information, rather than neutral conduits for speech. Content providers will have their online speech throttled and censored. The Open Internet Order sets forth rules that are necessary to prevent such discrimination and protect this free marketplace. Ultimately, the Order advances a core purpose of the First Amendment: “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market.” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 16 of 73 3 According to the World Bank, nearly 90% of Americans use the Internet.4 It has become essential to our democracy—for example, by providing real-time engagement with government,5 a forum for anonymous criticism,6 and a source of independent journalistic perspectives.7 The Internet is an important tool for innovators to test out new ideas, reach untapped markets, and build on one another’s designs.8 The significance of individuals’ First Amendment interests in accessing information from an uncensored Internet can hardly be overstated. Upstart blogs, innovative media, libraries, and non-profits are all unlikely to be able to negotiate with ISPs for “fast lane” arrangements that, without the Order, will be available to others.9 Because the Internet service market is dysfunctional, 4 Internet Users (Per 100 People), World Bank, http://data.worldbank.org/indicator/IT.NET.USER.P2 (last visited Sept. 17, 2015). 5 See, e.g., @WhiteHouse, Twitter, https://twitter.com/whitehouse; U.S. Dep’t of State, Alerts and Warnings, http://travel.state.gov/content/passports/english/alertswarnings.html (last visited Sept. 17, 2015). 6 See James A. Gardner, Anonymity and Democratic Citizenship, 19 Wm. & Mary Bill Rts. J. 927 (2011). 7 See, e.g., Damien Cave & Rochelle Oliver, The Videos That Are Putting Race and Policing Into Sharp Relief, N.Y. Times (Aug. 12, 2015), http://www.nytimes.com/interactive/2015/07/30/us/police-videos-race.html?_r=0. 8 See Julius Genachowski, Chairman, FCC, Remarks at the Joint Center for Political and Economic Studies: Media & Technology Policy Forum (Mar. 3, 2010), available at https://www.fcc.gov/events/speech-open-internet-innovation-and-economic-development (“Internet openness is key to a healthy business ecosystem, particularly for startups and small businesses, which are America’s engine of growth and opportunity.”). 9 Id. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 17 of 73 4 market forces cannot prevent or remedy such discriminatory practices. Against this background, carefully tailored regulation is appropriate and necessary to protect the vibrant marketplace of online speech. The FCC’s Order sets out appropriate rules to vindicate those interests. The Order classifies Broadband Internet Access Service (“BIAS”) Providers as common carriers under Title II of the Communications Act, and subjects them to simple rules to ensure that ISPs remain neutral conduits of speech. The Order establishes three bright-line rules for BIAS: (i) no blocking of access to legal content, (ii) no throttling (slowing) of lawful Internet traffic on the basis of content, and (iii) no paid prioritization of traffic in exchange for consideration or benefit to an affiliated entity.10 Essentially, the Order requires ISPs to behave as they traditionally have: delivering digital speech without undue interference or censorship. This regulation merits, and meets, constitutional scrutiny. BIAS is largely provided via two methods: cable wires and wireless radio spectrum. Both infrastructures are already regulated as common carriers—with the Supreme Court’s blessing. To preserve access to the 21st Century’s marketplace of ideas, 10 See Order ¶¶ 14-19. In addition to the bright-line rules, the Order includes a “general conduct” rule explaining that the overall purpose of the Order is to avoid harm to consumers and content providers. Order ¶ 21. As set forth in Section III, infra, amici file this brief to defend the bright-line rules and explain how the general conduct rule can be properly construed to further these rules. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 18 of 73 5 ISPs may be similarly regulated. Because ISPs function as conduits and are not in the business of endorsing the speech they deliver, the Order’s impact on expression is minimal. And because they operate as conduits over scarce infrastructure subsidized and provided by government, Supreme Court precedent supports its constitutionality. The Order strikes the correct balance in protecting the enormous individual speech interests at stake from the power of ISPs to play gatekeeper to the online world. ARGUMENT I. The Open Internet Is Essential to Speech and Innovation. A. The Internet Was Built on Principles of Neutrality. The Internet grew into a powerhouse platform for free expression because of legal and technological conditions that prevented content discrimination by ISP networks. The Internet consists of tens of thousands of individual networks of computers and other devices, owned, operated, and maintained by different entities.11 To facilitate global communication, each network interconnects to one or more other networks, thus the term “Internet.” While each network speaks the 11 CIDR Report for 17 Sep 15, CIDR REPORT, http://www.cidr-report.org/as2.0/ (last visited Sept. 17, 2015). USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 19 of 73 6 same language (“protocol”), the networks vary widely in their architecture and their underlying technology. A typical ISP network connects anywhere from dozens to thousands of homes and businesses or mobile devices to the rest of the Internet.12 In the early 1990s, when the Internet became a mass communications medium, most Internet access operated through dial-up connections. Customers accessed the Internet by connecting directly to ISPs over telephone lines. Dial-up encouraged free-market competition; individuals could choose which ISP to use, and then connect directly to that company. If they didn’t like their ISP, they could connect to a new provider simply by dialing a different phone number. This spurred development of a healthy and competitive ISP marketplace, with thousands of providers offering Internet access across the United States.13 12 The same company may act in different roles: a large ISP can provide service to other ISPs, or a large consumer-facing provider may own core infrastructure. Thus, it is important to focus on the context in which ISPs are being discussed, or risk confusion and imprecision. See generally Joint Statement of Internet Engineers 3 & n.4, available at https://www.eff.org/files/2015/09/14/eff-aclu_internet_engineers_and_pioneers_statement.pdf, attached hereto as Appendix A. 13 Jason Oxman, The FCC and the Unregulation of the Internet 17 (FCC Office of Plans and Policy, Working Paper No. 31, July 1999), available at https://www.fcc.gov/Bureaus/OPP/working_papers/oppwp31.doc at 15 ( “Over 6,000 Internet service providers (ISPs) today offer dial-up service to the Internet, and over 95% of Americans have access to at least four local ISPs.”). USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 20 of 73 7 That competition was fostered at the “last mile”—that is, the point of delivery to individual consumers—by existing common carrier rules and other FCC regulations that curbed the power of telephone companies. For example: • In 1975, the FCC prohibited telephone companies from blocking their customers from attaching their own equipment to the phone network. If not for this ruling, AT&T could have blocked the use of dial-up modems.14 • In 1980, the FCC required telephone companies to offer “data services” through separate affiliates because they would otherwise have had both the ability and the incentive to use their control of the telephone network to discriminate against unaffiliated, competing data services.15 • In 1983, the FCC prevented telephone companies from charging ISPs by the minute for their use of the local telephone network. Had the Commission allowed such charges, consumers would have paid per-minute fees for Internet access. That would have slowed Internet growth, as such fees did in Europe.16 Though common carriage regulations helped foster the emerging Internet, by the early 2000s, Americans were increasingly replacing dial-up connections with broadband. Technologically, wired broadband service has been provided through the coaxial cables used by cable television companies, fiber-optic cables, or digital subscriber line (“DSL”) connections that achieve high speeds over regular telephone wires with limited geographic range. These connections are subject to 14 See Proposals for New or Revised Classes of Interstate and Foreign Message Tolls Telephone Service (MTS) and Wide Area Telephone Service (WATS), 56 F.C.C.2d 593 (1975). 15 Amendment of Section 64.702 of the Commission ’s Rules and Regulations (Second Computer Inquiry), 77 F.C.C.2d 384 (1980). 16 See MTS and WATS Market Structure, 97 F.C.C.2d 682 (1983). USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 21 of 73 8 more centralized control than dial-up connections. Customers can no longer simply dial into a preferred ISP located anywhere on the telephone network; they are tethered to ISPs operating over local phone or cable lines. As a result, the growth of broadband means an ever-smaller number of companies delivering access to an ever-larger slice of the population. The level of service (“bandwidth”) a broadband subscriber receives for communicating information has not typically been altered by ISPs based on content. Customers normally pay for a certain amount of bandwidth (for example, 25 megabits per second). Sometimes a plan involves a “data cap”: a limit on how much data the customer can move across the company’s system. Different plans let customers pay for more bandwidth or a higher data cap. Historically, data caps have generally been neutral as to how customers use their data allowance.17 This informal system of network neutrality has resulted in part from anti-monopoly rules attached to several of the largest broadband provider mergers.18 This structure has enabled an explosion of innovation over the past 25 years. Google, for instance, started as two students with a better search algorithm. If they had needed to negotiate deals with Comcast, Verizon, and other 17 See Erik Sherman, What will a non-neutral Internet really be like?, MONEYWATCH (Jan. 15, 2014), http://www.cbsnews.com/news/what-will-a-non-neutral-net-really-be-like/. 18 See, e.g., Final Judgment at 9-32, United States v. Comcast Corp. (Sept. 1, 2011) (No. 05-1631), 2011 WL 5402137, at *4-16. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 22 of 73 9 telecommunications companies, they might never have overcome the incumbent search giants of the time: Excite and Alta Vista. The same holds true for many other innovators, including marketplaces like eBay, Amazon, and Etsy, and social media platforms like Facebook and Twitter. They have thrived in large part because neither service providers nor anyone else had an advance economic veto right on new applications, services, or content. In short, the Internet has become so successful and so central to our lives because it was built on neutrality principles. B. The Internet Is Now the Core Platform for Free Speech and Access to Knowledge. Today, the Internet has become our public square, our newspaper, our megaphone, and more. The Supreme Court rightly called the Internet “the most participatory form of mass speech yet developed.” Reno, 521 U.S. at 863. The Internet has led to new forms of political activism,19 news-gathering,20 and speech access and distribution that do not rely on central curators. 19 See, e.g., Ashraf M. Attia et al., Commentary: The Impact of Social Networking Tools on Political Change in Egypt ’s “Revolution 2.0,” 10 ELECTRONIC COM. RES. & APPLICATIONS 369 (2011). 20 Monica Anderson & Andrea Caumont, How Social Media Is Reshaping News, PEW RES. CTR. (Sept. 24, 2014), http://www.pewresearch.org/fact-tank/2014/09/24/how-social-media-is-reshaping-news/. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 23 of 73 10 A 2012 study found that 40% of all American adults post political content to social media sites.21 The 2010 election cycle, for example, featured citizen videos on numerous campaign topics, including immigration, health care, education and teachers’ unions, the federal budget deficit, bank bailouts, and taxes.22 Citizens have also used new technology and high-bandwidth connections to share original videos and remixes of political ads, commercials, and mass media. Examples include remixes of mass media to highlight sexism; remixes of presidential debates to demonstrate repetition of rehearsed talking points; and remixes of commercials to criticize private companies.23 The Internet is also a portal to education, health, and employment for people of all ages. Two-thirds of students used the Internet for homework in 2009, and those not online were at a “growing disadvantage.”24 Thanks to higher-bandwidth connections, universities offer a wide range of interactive, online education 21 See Lee Rainie & Aaron Smith, Social Networking Sites and Politics: Main Findings, PEW RES. CTR. (Mar. 12, 2012), http://www.pewinternet.org/2012/03/12/main-findings-10/. 22 The 2010 Election on YouTube: By the Numbers, CITIZENTUBE (Nov. 1, 2010), http://www.citizentube.com/2010/11/2010-election-on-youtube-by-numbers.html. 23 DIY Video 2010: Political Remix (Part Two), MIT CTR. FOR CIVIC MEDIA (Nov. 15, 2010), https://civic.mit.edu/blog/henry/diy-video-2010-political-remix-part-two. 24 Fed. Commc’ns Comm’n, September Commission Meeting Presentation 7 (2009), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-293742A1.pdf. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 24 of 73 11 courses.25 The majority of Americans use the Internet to seek health information and jobs.26 High-bandwidth connections allow video interviews for job and university applications and allow patients to connect more readily with doctors.27 In short, high-bandwidth channels of expression are crucial to speech, civic participation, and basic socioeconomic activity. C. Permitting ISPs to Act as Gatekeepers Threatens Free Expression and Innovation. Absent net neutrality rules, ISPs can effectively censor political speech, prevent competitors from reaching their customers over the Internet, and reshape the Internet so that selected and curated content stifles the free flow of education, research, and news. The risks of allowing ISP discrimination are illustrated by incidents abroad, where neutrality norms have been less robust. ISPs discriminate against particular speakers and technologies even in jurisdictions with strong transparency requirements and significantly more competition than in the United States. Such 25 Examples include udacity.com, coursera.com, copyX.org, and ocw.mit.edu. 26 Fed. Commc’ns Comm’n, September Commission Meeting Presentation 7 (2009), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-293742A1.pdf. 27 Teleheath Use in Rural Heathcare, RURAL ASSISTANCE CTR., https://www.raconline.org/topics/telehealth (last visited Sept. 17, 2015). USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 25 of 73 12 discrimination affects over 75% of subscribers in the UK28 and at least one in five subscribers in the European Union.29 They include restrictions on online phone services, file transfer technologies, and gaming, streaming, email, and messaging applications.30 One Canadian ISP even blocked access to the speech of its political opponents.31 While less widespread, ISPs have engaged in similar practices in the United States. Several ISPs have overlaid third-party website content with their own advertisements, sometimes blocking the original content.32 ISPs as large as 28 Alissa Cooper, How Regulation and Competition Influence Discrimination in Broadband Traffic Management: A Comparative Study of Net Neutrality in the United States and the United Kingdom (Sept. 2013) (Published Ph.D. dissertation, University of Oxford), available at https://www.alissacooper.com/files/Chapter6-final.pdf. 29 Body of European Regulators for Elec. Comm., A View of Traffic Management and Other Practices Resulting in Restrictions to the Open Internet in Europe (May 29, 2012), available at http://ec.europa.eu/digital-agenda/sites/digital-agenda/files/Traffic%20Management%20Investigation%20BEREC_2.pdf. 30 Id. 31 Telus Cuts Subscriber Access to Pro-union Website, CBCNEWS CAN. (July 24, 2005), http://www.cbc.ca/news/canada/telus-cuts-subscriber-access-to-pro-union-website-1.531166. 32 Karl Bode, Mediacom Not Talking about Javascript Ad Injection: Users Still Waiting on an Explanation, DSLREPORTS (Mar. 3, 2011), https://www.dslreports.com/shownews/Mediacom-Not-Talking-About-Javascript-Ad-Injection-113007; Zachary Henkel, ISP Advertisement Injection: CMA Communications (Mar. 29, 2013), http://zmhenkel.blogspot.com/2013/03/isp-advertisement-injection-cma.html; Jonathan Mayer, AT&T Hotspots: Now with Advertising Injection, WEB POLICY BLOG (Aug. 25, 2015), http://webpolicy.org/2015/08/25/att-hotspots-now-with-advertising-injection/. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 26 of 73 13 AT&T33 and as small as Madison River34 have tried to block their subscribers from communicating with competitors. Comcast secretly interfered with lawful peer-to-peer file transfer technologies.35 Verizon refused to allow smartphone owners to use their phones as wireless access points (ultimately reaching a $1.25 million settlement with the FCC).36 And at least two large BIAS companies have censored political speech on their other platforms not subject to net neutrality rules: Verizon blocked pro-choice text messages37 and AT&T censored criticism of George Bush during a concert webcast.38 33 See David Kravets, AT&T Holding FaceTime Hostage Is No Net-Neutrality Breach, WIRED.COM (Aug. 22, 2012), http://www.wired.com/2012/08/facetime-net-neutrality-flap/. 34 See Madison River Commc ’ns, LLC and Affiliated Companies, 20 F.C.C. Rcd. 4295 (2005). 35 See Press Release, Fed. Commc’n Comm’n, Commission Orders Comcast to End Discriminatory Network Management Practices, (Aug. 1, 2008), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-284286A1.pdf. 36 See Complaint of Free Press Against Cellco Partnership d/b/a Verizon Wireless for Violating Conditions Imposed on C Block of Upper 700 Mhz Spectrum (June 6, 2011), available at http://www.freepress.net/sites/default/files/fp-legacy/FreePress_CBlock_Complaint.pdf; Press Release, Fed. Commc’ns Comm’n, News Release: Verizon Wireless to Pay $1.25 Million to Settle Investigation Into Blocking of Consumers ’ Access to Certain Mobile Broadband Applications (July 31, 2012), available at http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0731/DOC-315501A1.pdf. 37 Adam Liptak, Verizon Blocks Messages of Abortion Rights Group, N.Y. TIMES (Sept. 27, 2007), http://www.nytimes.com/2007/09/27/us/27verizon.html. 38 AT&T Calls Censorship of Pearl Jam Lyrics an Error, REUTERS (Aug. 9, 2007), http://www.reuters.com/article/technologyNews/idUSN091821320070809. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 27 of 73 14 Broadband providers have also demonstrated interest in creating artificial scarcity by segmenting bandwidth into multiple markets rather than investing in neutral, general-purpose upgrades.39 Such artificial scarcity threatens innovation. Comcast’s decision to degrade Netflix’s ability to deliver information to subscribers over Comcast’s network exemplifies the coercive power of ISPs. This rendered the service practically unusable.40 When Netflix paid the toll Comcast demanded, quality was rapidly restored.41 Moreover, while Netflix could afford to pay for priority access for streaming video, new innovators attempting to enter the market almost certainly cannot. Etsy, Inc.—now a major e-commerce website with hundreds of millions of dollars per year in revenue—noted that it would likely have failed if it had to pay for similar 39 Zachary M. Seaward, The Inside Story of How Netflix Came to Pay Comcast for Internet Traffic, QUARTZ (Aug. 27, 2014), http://qz.com/256586/the-inside-story-of-how-netflix-came-to-pay-comcast-for-internet-traffic/. 40 Id. 41 Id. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 28 of 73 15 priority access to consumers.42 Other small businesses and their investors have echoed these concerns.43 Noncommercial Internet applications are also likely to be relegated to the slow lane, or disappear altogether if they require broadband speeds to function. Across the country, people depend on high-speed Internet to access a variety of public and nonprofit services. Hospitals, libraries, firefighters, churches, schools, and social service organizations need fast Internet, but such entities may have difficulty negotiating special deals with quasi-monopolies to get it.44 These risks are not hypothetical. ISPs have a record of interfering with speech to serve their financial interests and censor critics, and a continuing interest 42 Comments of Etsy, Inc. at 5, Promoting the Open Internet (July 8, 2014) (GN Docket Nos. 14-28 & 10-127), available at https://blog.etsy.com/news/files/2014/07/Etsy-Open-Internet-Comments-7.8.14.pdf. 43 See, e.g. Comment of Open Media and Information Companies Initiative (OpenMIC), et al., Promoting the Open Internet (GN Docket No. 14-28) (July 14, 2014), available at http://openmic.org/files/Open%20MIC%20et%20al_GN%20Docket%20No.%2014-28_Comment.pdf; Letter from Open Engine & The Open Tech. Inst. at the New Am. Found., to Fed. Commc ’ns Comm’n (May 7, 2014), available at http://engine.is/wp-content/uploads/Company-Sign-On-Letter.pdf; Mike Masnick, Kickstarter, Etsy and Dwolla All Speak Out On Net Neutrality and Why the FCC’s Plan Is Dangerous to Innovation, TECHDIRT (July 11, 2014), https://www.techdirt.com/articles/20140710/17450827845/kickstarter-etsy-dwolla-all-speak-out-net-neutrality-why-fccs-plan-is-dangerous-to-innovation.shtml. 44 See, e.g., Andrea Peterson, Why the Death of Net Neutrality Would Be a Disaster for Libraries, WASH. POST (May 16, 2014), http://www.washingtonpost.com/blogs/the-switch/wp/2014/05/16/why-the-death-of-net-neutrality-would-be-a-disaster-for-libraries/. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 29 of 73 16 in doing so. Indeed, the FCC and this Court have identified several examples, see Verizon v. FCC, 740 F.3d 623, 645-46, (D.C. Cir. 2014) (citing Preserving the Open Internet, 25 F.C.C. Rcd. 17905 (2010) (“2010 Order”)), including: • Broadband Internet access providers “have incentives to interfere with the operation of third-party Internet-based services that compete with the providers’ revenue generating telephone and/or pay-telephone services,” id. at 645-46 (citing 2010 Order at 17919 ¶22). • “[B]roadband providers’ position in the market gives them the economic power to restrict edge[content]-provider traffic and charge for the services they furnish edge providers. . . . [The] provider functions as a ‘terminating monopolist’ . . . [and has] this ability to act as a ‘gatekeeper’,”  id. at 646 (citing 2010 Order ¶ 24); • “[E]nd users are unlikely to [switch to a competing broadband provider]” as “end users may not know” that their broadband provider is behaving in non-neutral ways and “even if they do have this information [consumers] may find it costly to switch,” id. at 646-47 (citing 2010 Order ¶ 27); • “[B]roadband providers’ potential disruption of edge-provider traffic [is] itself the sort of ‘barrier’ that has ‘the potential to stifle overall investment in Internet infrastructure,’”   Id. at 642-43 (citing 2010 Open Internet Order ¶ 120); • In light of recent history, “the threat that broadband providers would utilize their gatekeeper ability to restrict edge-provider traffic is not . . . ‘merely theoretical.’” Id. at 648 (citing 2010 Open Internet Order ¶ 35). Clear, focused rules of the road can help ward off these threats, to the benefit of the public interest. D. The BIAS Market Is a Dysfunctional, Government-Enabled Oligopoly. ISPs can play a censorial role in part because each holds a unique position of centralized power over its customers. In order to reach any endpoint on the Internet USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 30 of 73 17 (such as a website), the customer must go through her ISP’s network. The ISP has the power to downgrade or sever that link, so that its subscriber cannot reach a particular endpoint, access its content, or use a particular hardware device or software app to do so. The ISP market was born and remains anchored on top of existing common carrier networks subsidized and provided by government. Incumbent ISPs have benefited from government assistance to defray prohibitive costs of local infrastructure construction. Federal law requires phone companies to give the cable industry access to telephone poles at preferential rates set by FCC.45 Wireless Internet providers have benefited from physical and regulatory groundwork laid by the radio industry,46 in which “existing broadcasters . . . attained their present position because of their initial government selection in competition with others before new technological advances opened new opportunities for further uses.” Red Lion, 395 U.S. at 400. The fiberoptic BIAS market is also shaped by countless 45 Susan Crawford, Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age 40 (2013) (“The law gave cable a subsidy—in the form of a preferential rate on access to telephone poles—that is still in place today.”). 46 See, e.g., 1946: First Mobile Telephone Call, AT&T http://www.corp.att.com/attlabs/reputation/timeline/46mobile.html (last visited Sept. 18, 2015) (discussing Bell Lab engineer D.H. Ring’s invention of the cell phone utilizing radio transmitters and technology). USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 31 of 73 18 state and federal subsidies.47 Today’s BIAS market is inseparable from the government policies that enabled, and continue to enable, its existence. As a result of such reliance on existing cable and radio infrastructure, the market for broadband service has developed as invariably local, guarded by significant barriers to entry,48 and resembles a monopoly or, at least, oligopoly.49 New competitors can offer Internet services only by building new networks from scratch. Incumbent communications companies have used this first-to-market, government-enabled advantage to establish a captive customer base for Internet services.50 Additionally, switching costs are high and consumers are unlikely to be able to determine whether lag, jitter or other service issues are due to providers unduly interfering with their data. See Verizon, 740 F.3d at 646-47. 47 Bruce A. Kushnick, The Book of Broken Promises: $400 Billion Broadband Scandal & Free the Net (2005). 48 Ex Parte Submission of the U.S. Dep’t of Justice at 7, Economic Issues in Broadband Competition, A National Broadband Plan for our Future (GN Docket No. 09-51) (Jan. 4, 2010), available at http://www.justice.gov/atr/public/comments/253393.htm. 49 See id. (“[T]he Department does not expect to see a large number of suppliers.”); id. at 11 (“[L]arge economies of scale . . . preclude having many small suppliers and thus often lead to oligopolistic market structures.”). 50 See Prepared Remarks of FCC Chairman Tom Wheeler, The Facts and Future of Broadband Competition 4 (Sept. 4, 2014), available at https://www.fcc.gov/document/chairman-remarks-facts-and-future-broadband-competition ( “Once consumers choose a broadband provider, they face high switching costs that include early-termination fees, and equipment rental fees. And, if those disincentives to competition weren’t enough, the media is full of stories of consumers’ struggles to get ISPs to allow them to drop service. ”). USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 32 of 73 19 The result is that only 37% of Americans have a choice between two or more broadband providers (those providing a download speed of 25 Mbps or better51), and only 9% can choose among three or more.52 The majority of Americans must contract with the sole provider in their area, or settle for a subpar connection. Accordingly, as recognized by this court in Verizon, broadband providers have the ability and incentive to collect fees from content providers to either disadvantage a competitor or provide prioritized access to the network’s customers. Verizon, 740 F.3d at 645-46 (finding Commission’s “speculation” about paid prioritization and other anticompetitive incentives “based firmly in common sense and economic reality”). And because consumers have little choice among ISPs—should they even be able to discern such content discrimination—this ability to interfere with third-party services, applications, and content remains artificially, and dysfunctionally, insulated from market forces. 51 Fed. Commc’ns Comm’n, FCC Chairman Tom Wheeler: More Competition Needed in High-Speed Broadband Marketplace (Dec. 2013), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-329160A1.pdf. 52 David N. Beede, U.S. Dep’t of Commerce, Competition Among U.S. Broadband Service Providers (Dec. 2014), available at http://www.esa.doc.gov/sites/default/files/competition-among-us-broadband-service-providers.pdf. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 33 of 73 20 II. First Amendment Principles Weigh in Favor of the Open Internet Order. Petitioner Alamo and some amici suggest that the Order violates the First Amendment. They are incorrect. The Order implicates the competing First Amendment interests of individual users to speak and seek speech online, and of ISPs to transmit speech without undue government interference. When the regulation of a communications medium reflects a tension between these interests, the Supreme Court has provided a roadmap for resolving that tension. The FCC has followed that map here. Because the Order furthers a paramount public interest by preserving freedom of speech in a dysfunctional, government-enabled industry, and does so without significantly burdening the speech of ISPs, it should be upheld. A. The Order Constitutionally Regulates ISPs in Their Role as Conduits for Internet Speech. Because ISPs (1) operate as conduits for others’ speech, and (2) do so via government-provided monopolies and infrastructure, Supreme Court precedent supports the Order’s constitutionality. The Order’s regulation of broadband Internet access is governed by Turner Broadcasting System, Inc. v. FCC, and Red Lion. Both Turner and Red Lion stand for the proposition that tailored, fact-bound regulation of government-enabled mass media designed to promote a diversity of USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 34 of 73 21 speech and speakers can not only survive intermediate scrutiny, but vindicate First Amendment rights. First, and most importantly, the Order regulates ISPs only when they act as conduits, rather than creators or endorsers, of information. The Order thus places only nominal restrictions on the expressive activities of ISPs. Many ISPs play two roles: providing access to the Internet writ large and hosting their own content. For example, Verizon both provides Internet services and hosts its own speech on its website. The Order regulates Verizon and other ISPs in the former role as conduits of information,53 and not in the latter. See Associated Press v. United States, 326 U.S. 1, 20 n.18 (1945) (distinguishing between the AP’s editorial and distributive roles). There is no evidence that ISPs endorse speech—besides their own—that passes over their networks. In fact, Petitioners insist that they do not exercise editorial discretion in this way.54 Thus, the Order on its face does not substantially burden ISPs’ First Amendment rights because acting as a conduit in itself is not expressive. In Turner, the Court recognized that the cable television companies exercised their editorial capacities only to select programming, and otherwise served as “conduit[s] for the 53 See Order ¶ 270 (explaining that ISPs are only being regulated in their roles as conduits). 54 See Joint Brief for Verizon & MetroPCS at 43, Verizon v. FCC, (No:11-1355) (July 2, 2012), 2012 WL 9937411, at *43 (stating that ISPs “allow all content in an undifferentiated manner”), USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 35 of 73 22 speech of others, transmitting it on a continuous and unedited basis to subscribers.” 512 U.S. at 629. Even in the cable TV context, where companies actively select programming, the Court found “little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator” and that therefore, the must-carry rules did not burden expression. Id. at 655. The Order applies only to services that allow customers to reach “substantially all Internet endpoints.” Id. In doing so, the Order limits itself to regulating those ISPs that already hold themselves out as neutral conduits to all speech. Thus, the expressive interests here are no more present than they were in Turner. This last point is worthy of emphasis—amici are civil liberties organizations largely devoted to, and responsible for, the robust application of the First Amendment to online speech. This includes unconditional support for the Supreme Court’s holding that speech should not receive compromised protection simply because it occurs online. See, e.g., Reno, 521 U.S. at 870 (finding “no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium”). The Court in Reno properly discerned that the nature of the Internet does not justify content-based restrictions on expression. But that holding does not apply to the Order, which does not regulate content providers but rather access to the USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 36 of 73 23 content they provide. Indeed, Reno’s preservation of an online marketplace “as diverse as human thought” would be substantially diminished if Americans could not access this wealth of speech. It is this gatekeeper role, not the speech beyond that gate, that provides a basis for regulation: Although a daily newspaper and a cable operator both may enjoy monopoly status in a given locale, the cable operator exercises far greater control over access to the relevant medium. A daily newspaper, no matter how secure its local monopoly, does not possess the power to obstruct readers’ access to other competing publications . . . . Turner, 512 U.S. at 656. ISPs, as gatekeepers to the online world, function much more like cable companies than newspapers. Regulation of ISPs as neutral common carriers is therefore proper, and indeed necessary to ensure individuals retain a meaningful right to create, access, and view the online content protected in Reno. ISPs are a proper target of common carrier regulation because their industry is built atop existing common carrier infrastructure dependent on exclusive rights provided by the government. Compare CBS, Inc v. FCC, 453 U.S. 367 (1981), and Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990), overruled on other grounds by Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (permitting regulation of communications entities enjoying monopoly power due to government assistance), with Miami Herald Pul’g. Co. v. Tornillo, 418 U.S. 241 (1974), Buckley v. Valeo, 424 U.S. 1 (1976), and First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765 (1978) USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 37 of 73 24 (refusing to allow regulation of industries that did not have government assistance in gaining market power). ISP control of the Internet is “compounded by the increasing concentration of economic power in the cable industry.” Turner, 512 U.S. at 632-33. As discussed above, BIAS is dominated by a handful of incumbents that achieved their power thanks to government policy. The resulting “undue market power,” as well as unfair competition exacerbated by horizontal and vertical integration,55 were also hallmarks of the cable industry when Turner was decided. Turner, 512 U.S. at 633. In addition, wireless broadband access operates over frequencies on the electromagnetic spectrum—and is dependent on government auctions of this scarce resource.56 In Red Lion, the Court upheld rules mandating that radio stations give air time to opposing viewpoints against their commercial interests, in part, because “broadcast frequencies constitute[] a scarce resource whose use [can] be regulated and rationalized only by the Government.” 395 U.S. at 376. Just as the scarcity rationale permitted the regulation of broadcast radio “in a manner responsive to the 55 See 2010 Open Internet Order ¶ 21 n.46 (noting vertical integration of ISPs). 56 The FCC’s recent auction for mid-band spectrum generated $44.9 billion, showing increasing demand for this public resource. Marguerite Reardon, FCC Rakes in $45 Billion from Wireless Spectrum Auction, CNET (Jan. 29, 2015), http://www.cnet.com/news/fcc-rakes-in-45-billion-from-wireless-spectrum-auction/. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 38 of 73 25 public convenience, interest, or necessity,” so too does it permit the Open Internet Order. Id. at 377 (quotation marks omitted). Because BIAS operates through the cable lines and wireless spectrum, the FCC’s Order is not only permissible, it is necessary “to impose order upon a market in dysfunction” and protect free speech. Turner, 512 U.S. at 635. B. The Open Internet Order Is Facially Content-Neutral and Survives Intermediate Scrutiny. The Order’s three bright lines forbid ISPs from blocking access to legal content,57 throttling data on the basis of content, or prioritizing certain traffic in exchange for payment or to benefit an affiliated entity.58 These rules properly ensure that Internet providers do not curb “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences.” Red Lion, 395 U.S. at 390. However, in regulating a medium of communication imbued with First Amendment interests of its own, the Order merits meaningful scrutiny. The standard for that scrutiny can be found in Turner. There, the Court 57 The core of the Order prevents discrimination based on the content of speech carried over the network. In guidance, however, the Order also reasserts the FCC ’s “tentative conclusion” that ISPs may make “reasonable efforts to address the transfer of unlawful content or unlawful transfers of content” where they see fit. Order ¶ 304. It would raise serious constitutional concerns to construe the Order to delegate to ISPs the decision as to which content is lawful. 58 See Order ¶¶ 7-8. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 39 of 73 26 upheld the FCC’s “must-carry” rules, which required cable television companies to devote a portion of their channels to local broadcast stations. 512 U.S. at 626. The Court recognized that the cable companies engaged in limited programming selection, and otherwise served as “conduit[s] for the speech of others, transmitting it on a continuous and unedited basis to subscribers.” Id. at 629. Ultimately, the Court ruled that the must-carry rules were created “without reference to the content of speech.” Id. at 643. Having made this determination, the Turner Court found that intermediate scrutiny was proper: the Order must (1) further a substantial government interest, and (2) not burden substantially more speech than necessary to accomplish it. Id. at 662. Like Turner’s must-carry rules, the Order is unrelated to the content of speech, and is thus content-neutral. The Order thus merits, and meets, the same scrutiny. The government interests furthered by the Order are nothing short of compelling: (i) preserving the public benefits of the 21st century’s preeminent communications system; (ii) “promoting the widespread dissemination of information;” and (iii) facilitating fair competition in the communications market. See Turner, 512 U.S. at 663 (“[W]e have no difficulty concluding that each of [these] is an important government interest.”). The substantiality of the interests furthered by the Order is, quite simply, self-evident. The question is whether the USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 40 of 73 27 Order furthers these interests without unduly infringing upon the right of ISPs to engage in expression protected by the First Amendment. It does. Most critically, the editorial interests impacted by the Order are even less present than those in Turner. Because it regulates only ISPs that offer access to “substantially all Internet endpoints,” their interest in editorial culling is far less present than in Turner. Unlike in Turner, where the Court blessed local TV station’s intrusion into curated cable packages, the associated limits on ISPs’ editorial interests are difficult to discern. Because the First Amendment concerns of ISPs are “at best speculative,” the Order suppresses no more speech than is permitted. See Red Lion, 395 U.S at 393. Moreover, considering the enormity of the interests at stake, see supra II.B, and the sizeable power of ISPs to regulate users’ speech—and therefore, society’s marketplace of ideas—there is no less invasive or more effective method than to mandate that ISPs act as common carriers. The First Amendment interests of individual users cannot be vindicated with a partial solution in a non-competitive market that permits even some forms of discriminatory content delivery—those likely invisible to the user. III. The Primary Guideposts for Any “Unreasonable Interference” Analysis Should Be Free Expression and Application Agnosticism. The meaningful exercise of our constitutional rights—including the freedoms of speech, assembly, and press—has become dependent on broadband USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 41 of 73 28 Internet access. Accordingly, the touchstone of the Order must be whether it preserves and promotes opportunities for online expression. As explained above, the Order, and its bright-line rules, do so. The Order’s additional guidance regarding the “rule of general conduct” or “unreasonable interference” rule, however, raises First Amendment concerns because of its sheer complexity.59 This guidance includes seven factors to weigh in assessing whether particular practices run afoul of the bright-line rules: impact on competition; impact on innovation; impact on free expression; impact on broadband deployment and investments; whether the actions in question are application-specific; whether they comply with industry best standards and practices; and whether they take place without the awareness of the Internet subscriber. While each is potentially objective, the Commission nevertheless has significant discretion to weigh these factors in every case. Accordingly, the burden on regulated providers in litigating such cases ad hoc could discourage innovation and impede the Internet’s continued growth as a platform for speech, commerce, and social activity. Federal courts should, where possible, construe ambiguous regulations so as to avoid constitutional concerns. See, e.g. Clark v. Martinez, 543 U.S. 371, 381 (2005); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J., 59 Order ¶ 21. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 42 of 73 29 concurring). Here, to avoid First Amendment concerns, amici urge the Court to authoritatively construe the “general conduct” rule as a simpler assessment of whether the practice at issue promotes or hinders free expression, and whether the practice is “application agnostic.” Doing so will ensure that the general conduct rule is tailored to its core purposes—without creating a vague standard. The free expression impact factor is the rationale for the Order itself, and its primacy needs no justification. Application agnosticism, meanwhile, is an objective standard that the Commission, providers, and courts can readily apply. The Order defines an application-agnostic (“AA”) practice as one that “either does not differentiate in treatment of traffic or, if it does so, differentiates without reference to content, application or device.”60 As Professor Barbara van Schewick has explained, an application-agnostic standard would forbid providers from treating YouTube differently from Hulu, or the website of the New York Times differently from the website of the Wall Street Journal or Free Press. Nor would [they] be allowed to treat online video differently from e-mail, treat applications that use the BitTorrent protocol differently. . . . But [they] would be allowed to treat data packets differently based on criteria that have nothing to do with the application or class of application.61 60 Order ¶ 144 n.344. 61 Barbara van Schewick, Network Neutrality and Quality of Service: What a Non-Discrimination Rule Should Look Like, 67 Stan. L. Rev. 1 (2015). USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 43 of 73 30 Service providers can still manage congestion, offer varying tiers of service and products—they simply cannot target specific applications for different handling. AA vindicates the interests of both speech and innovation. By definition, application-agnostic practices are unlikely to disfavor certain sites, applications, or services based on content; in other words, AA is content-neutral. They are also less likely to create unfair barriers to innovation, because they help ensure that users can access new sites, services and applications on the same terms as established ones. The marketplace of ideas should decide which applications and speech rise to the top. AA also largely incorporates the other guiding factors. An application- agnostic practice is highly likely to promote competition and protect consumers, because it ensures that users, rather than providers, decide what content to favor. Indeed, AA may be the most effective way to promote end-user control. For example, the Order suggests that “transparent” practices might pass muster under this factor, but in practice transparency is a poor substitute for meaningful choice. Providers may simply ask users to agree to complex contracts in which they unknowingly sign away many of their rights and interests, and then claim that the users consented to the providers’ practices. As long as such contracts of adhesion are upheld as fair bargains by the courts, “user control” is unlikely to hold much weight as an independent factor. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 44 of 73 31 Amici understand the Commission’s desire to address unforeseen practices that may undermine the Open Internet. Tying the rule closely to free expression and application agnosticism will provide much-needed certainty and further the Order’s three bright-line rules. CONCLUSION “The First Amendment’s command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas.” Turner, 512 U.S at 657. The Order narrowly and effectively ensures the continued free flows of ideas through the Internet, and should be upheld. However, amici urge the Court to provide guidance to the FCC regarding the rule of general conduct, to offer greater certainty to providers and users alike. Dated: September 21, 2015 Respectfully submitted, /s/ Corynne McSherry Corynne McSherry Kit Walsh Lee Tien ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, California 94109 Telephone: (415) 436-9333 corynne@eff.org Counsel for Electronic Frontier Foundation USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 45 of 73 32 Lee Rowland Samia Hossain AMERICAN CIVIL LIBERTIES UNION 125 Broad Street New York, New York 10004 Telephone: (212) 549-2550 lrowland@aclu.org Counsel for American Civil Liberties Union Arthur B. Spitzer AMERICAN CIVIL LIBERTIES UNION OF THE NATION’S CAPITAL 4301 Connecticut Avenue Washington, D.C. 20008 Telephone: (202) 457-0800 artspitzer@aclu-nca.org Counsel for American Civil Liberties Union of the Nation’s Capital USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 46 of 73 33 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify as follows: 1. This Brief of Amici Curiae Electronic Frontier Foundation, American Civil Liberties Union, and the American Civil Liberties Union of the Nation’s Capital in Support of Respondents complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,942 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii); and 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010, the word processing system used to prepare the brief, in 14 point font in Times New Roman font. Dated: September 21, 2015 By: /s/ Corynne McSherry Corynne McSherry ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco, CA 94109-7701 Tel: (415) 436-9333 corynne@eff.org Counsel for Amicus Curiae USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 47 of 73 34 CERTIFICATE OF FILING AND SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by using the appellate CM/ECF system on September 21, 2015. Service of the foregoing will be made electronically via the appellate CM/ECF system upon the participants in the case who are registered CM/ECF users. Service on the counsel listed below will be made by U.S. Mail. Mr. Robert S. Schwartz Constantine Cannon LLP 1301 K Street, NW Suite 1050 East Washington, DC 20005 Mr. Rick Charles Chessen National Cable & Telecommunications Association 25 Massachusetts Avenue, NW Suite 100 Washington, DC 20001-1431 Mr. Sam Kazman Competitive Enterprise Institute 1899 L Street, NW 12th Floor Washington, DC 20036 Mr. Kellam McChesney Conover Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, NW Washington, DC 20036-5306 Dated: September 21, 2015 /s/ Corynne McSherry Corynne McSherry ELECTRONIC FRONTIER FOUNDATION Counsel for Amicus Curiae USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 48 of 73 Appendix A USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 49 of 73                                                                        !            "                 "                                                 #             $                                           "                                          $         "                   #                                                      %$$&'$ ( ) *+),  -.*+/0 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 50 of 73 *       12          ,   0                        ,    ! 0                     # "                3  4 ,3 40 3 4                     (#                   3 4          -'    -'       !             ,      -'     0              -'          ,         0                       5"   ,    6 0    ,       0         -'   #         -'          5 -'         ,   0  7       7       * * 4 -'           "     8'4 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 51 of 73         -'                 -'         1    29  -'               1   (      2                1     2            !      5                          '                (         "          (          "        ,           0.: ;   "  ;   ;               -'         -'           -'                 -'                -'                     *+#$<.<.=,*++/0 .            >& $4&$ ?3& 5))  )@  @@  @  ,   -.*+/0 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 52 of 73 .  #            5    -'           -'                                              A           "        B           /  !"!              "                    "     "      #   A                            ,           0                  C          5        '  ,' 0B'    B / #" -'         5   -'                                       -'  C D4 : 4 & 4&9:&$3&4E ':3' D&-&$ %8 3 $--$ %-5 >&$ 4&3&>>94 4-'3F4:&4&$4& 8&.*(.,*++/0 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 53 of 73 /    B       G            H            ,4         H                    0             "12         12       !                     A                     1    2                 '                                                                                                              (           5                                           -                                 9           G 4# - 4- 946 -  3 % $'  4&$4& '$8$ > '$3 -'&# 4,=<0  5))   ) )G= USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 54 of 73 C      12   1  (2  5             < "#$$%#&%   ' !      A              "     B                 !                                                                             ,      1  20 &                                             # "   1  2                                                 1      2   #      1 2         <                  ;                                    "     USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 55 of 73 G      ;                                    '           1        2        -      1  2          "             ( ','0                    =          (             "         (      ,            0        '                (   (               B                                                            1                             ?           ? (3      ;     = %983 -&>&$4&$4&$I48:')'639>&4&,C *+0 4       "                   ,           0 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 56 of 73 <     H  H   2+                                 1((   2                               B    (                      ((                      ,      0                             *     '                               ' ;               + ?     &     9   # ?   6 !#   G.+# C*,% *+.0,4(//0  D: -! %' $ E %%            * >$ 4- 4-4>'9&$-F-*GG,=<.0 *         ;             1((2    :            , ;  012      1  2     H               !         #    "        1  2    ;                      USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 57 of 73 =  "                !                       1 2    ;     ,        0                         ,     0  "!()*)          ' '                                                        A     -'     *++ $+",+                              #"            1    2             ( A             (      "        (        ,        (     0   (  ?          $&)%&D/*+/5)))*+/)+)/)(   (  ((    (( ((  ) USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 58 of 73 +     >                                              "                                        # "   1' # -  ,'#-0 ((                      2.  A  /   '#-                                                    '#-                                                        '#-         !         ((                             "                H                "     -'                      . :&'#-'$D& 5))   ),  -.*+/0 /      8:9?  5))   )  )  )  )  )$& %>&  ,    - . *+/0 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 59 of 73   "!-!./$          -'                        ;                   ; #"                    -'              ;        -'              ;                   -'                    ,   -'            0 -'       ,       (        ;   0C :   -'           % 4 %4 %4              "   , 0      -'  ,    (      %4     0%4  (                   -'                  (       C D >&- # I9$-& E I&: $-- >'9&$ 4&$I485  '( %4 ''$ :,.*++G0 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 60 of 73 *      H-'(             -'                             , *++    *J         G   *+C    A  C.J<0&   -'          ;         -'                 ;                   -'               ;    8       ;    -'          =   G - 4%64& 83? 3 4&$4& ':&4>&4  $&'$ ,*+0    5))   ) ) )  ( (  )*+)(*+(  ( ( ( < - 4%64& 83? 3 4&$4& ':&4>&4  -'38:5 &4$F'&% 4&$4& $ ## ,*+/0    5))   ) ) )  ( (  )*+/)( (  =  A      "    :':')*   % 8  $- &:4         !    "           *+/ 5))   )  )*+/)+.)( "( (  ( ( (( (  (( ( ) USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 61 of 73   " -$.!+$$%  A                 (  (      #"  9-       8 >  F, 9-0                     #       9- -'     E   (   //***+                                   -'                  -'  -             -'  %   4  -   ,%4-0*          **          %4-   8 '  %4-"   %4-  8            .++  %4-;  * *+ #$ -  5))    )  )  )K L*,  -.*+/04           !   B           * %4-             '         ,  0 **    883&  5))    ) )  ( ) ) ,  -. *+/0 * F 8%   &    883&&?> -&$&4$ 3?38%/*+. 5))       )*+.)*)  (  ( ((    USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 62 of 73 .  "-  #     0  -+      ;  -'                  -'            -'    3     '                      H                !   -'     *. 4-'               */           -'             -'                                -'                                                              -'   -'                      *. > ,==G04 %'     */        F99?&  5))  )ML4' =I(> ,    - . *+/0 ,       -   .8   0B     &  F99?&  5))  )MLC;>D@3  ,    - .*+/0,      (   1 )              N  (                    A   - !     20 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 63 of 73 /                                     (                                    -'       5       , 0   ;   $# ""'          ;      1 2                       5        -'         ,      0             B    -'      !           "      ,    0 $1$$+ #     #   -'                                  *C       "         # "   -'       *C             &4&$ #$ 4%6%9 3 #$&&%> 5))    )() )*+)+<)4( 4 (  (   ,    - . *+/0 ,19 O4 4                        20 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 64 of 73 C                    ;     *G-     -'           -        ;                           *< -  ;   1    ;  2         , "                 0                >                  '(      >  -          *=-        -'     -'             -'     -'                         (                         -'                         *G #&%>>4->>4$&'$ 4%$%&$4$&> 4%%&3 $ $F $9348 4% $%&$  ** ,> * *+/0   5))   )% @$  )% @?  )*+/) +*)#(/( *.  *< >   '  ' (     '                &  #&$&$&3&--&: #  = *+/ 5))    )) ) ( ( ( (   (  ( (( ()*+/(+*(+= *= ?              > -%*++ 5))   ) )C+/G USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 65 of 73 G  # ""' -       #   +               -'            !         B                 9-                                    -'                   -'  A      1   2P                                      -'     ,"    -'       (            0 &    -'                   -'"     "  "         " ,# $   -'               -'  ,  0      ; "  -'        +  *G*, '        0,1QR  #       20 USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 66 of 73 <                                    (     ?                     -'                    !                  %                          -                           ! -  !                                               ! H    -'                                 '      '  1    2          :       '                      ,                 3 40      !     "                        !  $#*.G.      ==<   &#4&$I$I488$9'%&#44 # :& %##&$&4 &% -&$6&- #&3% ,%- #&3%0 4 :& '6. 4% '6C :& %&$-,==<0  5))   ) )*.G. USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 67 of 73 =  ?           -'        ((                  12       "                         -'                ,# "   -'                                 0 ?                "                 ,             0                                 -'     2 "$                                 !            "                "                      !               4                                      * ?     6 !                   * '&   '       (&        &3&$4 #$4&$ #94% 4 4 *< *++G  5)) ))( (  ((  (  USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 68 of 73 *+      H                     6 !       ;    %             . '       -'             1  2     "                               5  1   2    /                     C                         (   ,        ;0                -'                %                    ;  %  I             )  *  $- &:4  - < *+. 5))   )(  )*+.)+=)(   (A  (( A  ((  ((  ) . D : (   *  '  '              &3&$4 #$4&$ #94% 4 4*+. 5)) )  )*+.)) !("(  /   $ >>&33 E I9&:3&4%  ? $I-:' 4 - I &6394 4  >%%3&?S 4&$4& ,-&>0 $&'$ ,*+/0    5))   ) )(  (  ((+ C >  :            M > 4&$4& >& -9$&>&4 4#&$&4& < ,*+0   5))  ) A) ) "  USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 69 of 73 *                           #          (        5#                                              -'                 # G  $    I  &             &                  + , %:8?           #        - -    $?   '           3                     G9                        !   USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 70 of 73 **  '  %                  %3   '    '       &    ' D  :             &              &       '  4  >I                                ' --          '       &       &   " #   -        +., ?          '  D ? % % ?#       ?#    %?  ' '   8 ' :  >"   '           '     #        '  D "      USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 71 of 73 *  8    8! '     - 8            #         #  %8 8 #    '8! '  D:   '    : #         6 I       $  I                %% ? >       /012  # &       >         >8         '  D  >            %  > >    8&>   &  % >> #          4    '  4 '   %     $     '    USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 72 of 73 *.  I-   /031 4  -           >-         -                    /00  8-  %:         %  &     '         I#    >      D   ' 4 T   ' T     USCA Case #15-1063 Document #1574185 Filed: 09/21/2015 Page 73 of 73