DISSENTING STATEMENT OF
COMMISSIONER AJIT PAI
Re: Protecting and Promoting the Open Internet, GN Docket No. 14-28.
Americans love the free and open Internet.  We relish our freedom to speak, to post, to rally, to 
learn, to listen, to watch, and to connect online.  The Internet has become a powerful force for freedom, 
both at home and abroad.  So it is sad to witness the FCC’s unprecedented attempt to replace that freedom 
with government control.
It shouldn’t be this way.  For twenty years, there’s been a bipartisan consensus in favor of a free 
and open Internet.  A Republican Congress and a Democratic President enshrined in the 
Telecommunications Act of 1996 the principle that the Internet should be a “vibrant and competitive free 
market . . . unfettered by Federal or State regulation.”
1
  And dating back to the Clinton Administration, 
every FCC Chairman—Republican and Democrat—has let the Internet grow free from utility-style 
regulation.  The result?  The Internet has been an amazing success story, changing our lives and the world 
in ways that would have been unimaginable when the 1996 Act was passed.
But today, the FCC abandons those policies.  It reclassifies broadband Internet access service as a 
Title II telecommunications service.  It seizes unilateral authority to regulate Internet conduct, to direct 
where Internet service providers put their investments, and to determine what service plans will be 
available to the American public.  This is not only a radical departure from the bipartisan, market-oriented 
policies that have served us so well for the last two decades.  It is also an about-face from the proposals 
the FCC made just last May.
So why is the FCC changing course?  Why is the FCC turning its back on Internet freedom?  Is it 
because we now have evidence that the Internet is not open?  No.  Is it because we have discovered some 
problem with our prior interpretation of the law?  No.  We are flip-flopping for one reason and one reason 
alone.  President Obama told us to do so.
On November 10, President Obama asked the FCC to implement his plan for regulating the 
Internet, one that favors government regulation over marketplace competition.
2
  As has been widely 
reported in the press, the FCC has been scrambling ever since to figure out a way to do just that.
The courts will ultimately decide this Order’s fate.  And I doubt they will countenance this 
unlawful power grab.  Litigants are already lawyering up to seek judicial review of these new rules.  
Given the Order’s many glaring legal flaws, they will have plenty of fodder.
But if this Order manages to survive judicial review, these will be the consequences: higher 
broadband prices, slower speeds, less broadband deployment, less innovation, and fewer options for 
American consumers.  To paraphrase Ronald Reagan, President Obama’s plan to regulate the Internet 
isn’t the solution to a problem.  His plan is the problem.
In short, because this Order imposes intrusive government regulations that won’t work to solve a 
problem that doesn’t exist using legal authority the FCC doesn’t have, I dissent.
I.
The Commission’s decision to adopt President Obama’s plan marks a monumental shift toward 
government control of the Internet.  It gives the FCC the power to micromanage virtually every aspect of 
                                                     
1
Communications Act of 1934, as amended, § 230(b)(2).
2
The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet, 
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014).
2how the Internet works.  It’s an overreach that will let a Washington bureaucracy, and not the American 
people, decide the future of the online world.
One facet of that control is rate regulation.  For the first time, the FCC will regulate the rates that 
Internet service providers may charge and will set a price of zero for certain commercial agreements.
3
  
And the Order goes out of its way to reject calls to forbear from section 201’s authorization of rate 
regulation,
4
thus making clear that the FCC will have the authority to determine the appropriate rates and 
charges for service.
5
  The Order also expressly invites parties to file such complaints with the 
Commission.
6
  A government agency deciding whether a rate is lawful is the very definition of rate 
regulation.
As a consequence, if the FCC decides that it does not like how broadband is being priced, Internet 
service providers may soon face admonishments, citations,
7
notices of violation,
8
notices of apparent 
liability,
9
monetary forfeitures and refunds,
10
cease and desist orders,
11
revocations,
12
and even referrals 
for criminal prosecution.
13
  The only limit on the FCC’s discretion to regulate rates is its own 
determination of whether rates are “just and reasonable,” which isn’t much of a restriction at all.
Although the Order plainly regulates rates, the plan takes pains to claim that it is not imposing 
further “ex ante rate regulation.”
14
  Of course, that concedes that the new regulatory regime will involve 
ex post rate regulation.  But even the agency’s suggestion that it today “cannot . . . envision” ex ante rate 
regulations “in this context” says nothing of what a future Commission—perhaps this very Commission 
in a few months or years—could envision.
15
  Indeed, the FCC grants forbearance against ex ante rate 
regulation but then turns around and says there’s no apparent “incremental benefit” to doing so since the 
Commission could just reverse that decision in any future rulemaking.
16
Indeed, it’s actually quite easy to envision this same Commission deciding to discard the 
predictive judgment that ex ante rate regulation is unnecessary.  After all, the Commission in this very 
Order and without explanation junks the agency’s 2002 predictive judgment that intermodal broadband 
                                                     
3
The Order bans paid prioritization, and as the Verizon court put it:  “In requiring that all edge providers receive 
this minimum level of access for free, these rules would appear on their face to impose per se common carrier 
obligations with respect to that minimum level of service.”  Verizon v. FCC, 740 F.3d 623, 658 (D.C. Cir. 2014).  
Setting a prospective rate of zero for a service is the very definition of ex ante rate regulation.
4
Order at paras. 449–50.
5
Communications Act § 201(a), (b).
6
Order at para. 455.
7
See Communications Act § 503(b)(5).
8
See 47 C.F.R. § 1.89.
9
See Communications Act § 503(b)(4).
10
See Communications Act § 503(b).
11
See Communications Act § 312(b).
12
See 47 C.F.R. § 1.91.
13
See Communications Act § 501.
14
Order at paras. 441, 443, 447, 451, 452.
15
Order at para. 452; see Order at para. 451 (“[W]e do not and cannot envision adopting new ex ante rate regulation 
of broadband Internet access service in the future”).
16
Order at note 1352.
3competition would develop.
17
  The short shrift the Order gives to our past bodes poorly for our future—
for why should anyone trust these latest promises at all?
Just as pernicious is the FCC’s new “Internet conduct” standard, a standard that gives the FCC a 
roving mandate to review business models and upend pricing plans that benefit consumers.
18
  Usage-
based pricing plans and sponsored data plans are the current targets.  So if a company doesn’t want to 
offer an expensive, unlimited data plan, it could find itself in the FCC’s cross hairs.
19
Consider that activists promoting this rule had previously targeted neither AT&T nor Verizon 
with their first net-neutrality complaint but MetroPCS—an upstart competitor with a single-digit market 
share and not an ounce of market power.  Its crime?  Unlimited YouTube.  MetroPCS offered a $40-per-
month plan with unlimited talk, text, Web browsing and YouTube streaming.  The company’s strategy 
was to entice customers to switch from the four national carriers or to upgrade to its newly built 4G Long 
Term Evolution network.  Whatever the benefits of MetroPCS’s approach, activists have said “there can 
be no compromise.”
20
Or take T-Mobile’s Music Freedom program, which the Internet conduct rule puts on the 
chopping block.  The “Un-carrier” lets consumers stream as much online music as they want without 
charging it against their monthly data allowance.  Consumers love it, judging by T-Mobile’s rapid 
subscriber growth.  Yet Music Freedom too stands on the brink of a ban—with the FCC “mindful of the 
concerns raised in the record that sponsored data plans have the potential to distort competition by 
allowing service providers to pick and choose among content and application providers to feature on 
different service plans.”
21
Affordable, prepaid plans are now also suspect.  These plans have enabled millions of low-
income households to have mobile service.  And yet the Order plays up the “concern that such practices 
can potentially be used by broadband providers to disadvantage over-the-top providers.”
22
  In other 
words, these plans aren’t the all-you-can-eat plans endorsed by the FCC, and so they, too, may violate the 
Internet conduct standard.
Our standard should be simple:  If you like your current service plan, you should be able to keep 
your current service plan.  The FCC shouldn’t take it away from you.  Indeed, economists have long 
understood innovative business models like these are good for consumers because they give them more 
choices and lower prices.  To apply outmoded economic thinking to the Internet marketplace would just 
hurt consumers, especially the middle-class and low-income Americans who are the biggest beneficiaries 
of these plans.
                                                     
17
Order at para. 330.
18
Order at paras. 133–53.
19
Order at paras. 152–53.
20
See, e.g., Susan Crawford, Zero for Conduct, Medium (Jan. 7, 2015) (“Zero-rating . . . is absolutely 
inappropriate.  It makes certain kinds of traffic exempt from any data cap at all, or creates a synthetic ‘online’ 
experience for users that isn’t the Internet. . . . [Z]ero rating is not just a competition issue.  It’s also a human 
rights issue.  Saying that walled gardens are “good enough” for poorer people is clearly destructive. . . . All 
compromise is based on give and take.  But when it comes to fundamentals?—?including the earth-shaking idea of 
the Internet, which has made possible for the first time an open, global, interoperable platform for 
communications?—?there can be no compromise.”), available at http://bit.ly/14xVnUT.
21
Order at para. 152.
22
Order at para. 153.
4In all, the FCC will have almost unfettered discretion to decide what business practices clear the 
bureaucratic bar, so these won’t be the last business models targeted by the agency.  And though the FCC 
spends several paragraphs describing seven vaguely worded factors that it will consider when applying 
the Internet conduct standard—end-user control; competitive effects; consumer protection; effect on 
innovation, investment, or broadband deployment; free expression; application agnostic; and standard 
practices
23
—these factors lead to more questions than they answer.  As the Electronic Frontier Foundation 
wrote just this week:  This open-ended rule will be “anything but clear” and “suggests that the FCC 
believes it has broad authority to pursue any number of practices.”  And “multi-factor test gives the FCC 
an awful lot of discretion, potentially giving an unfair advantage to parties with insider influence.”  Or as 
they put it more bluntly, this rule is “hardly the narrow, light-touch approach we need to protect the open 
Internet.”
24
  Even FCC leadership conceded that, with respect to the sorts of activities the Internet conduct 
standard could regulate, “we don’t really know” and that “we don’t know where things go next,” other 
than that the “FCC will sit there as a referee and be able to throw the flag.”
25
And because this list is “non-exhaustive,” with “other considerations relevant to determining 
whether a particular practice violates” the standard,
26
Internet service providers are left to guess.  Will the 
rate of return on investment be a factor?  How about an operator’s margins?  What if the Internet service 
provider separately offers an interconnected VoIP service?
Net neutrality proponents are already bragging that it will turn the FCC into the “Department of 
the Internet”
27
—and it’s no wonder.  The FCC’s newfound control extends to the design of the Internet 
itself, from the last mile through the backbone.  Section 201(a) of the Communications Act gives the FCC 
authority to order “physical connections” and “through routes,”
28
meaning the FCC can decide where the 
Internet should be built and how it should be interconnected.  And with the broad Internet conduct 
standard, decisions about network architecture and design will no longer be in the hands of engineers but 
bureaucrats and lawyers.
So if one Internet service provider wants to follow in the footsteps of Google Fiber and enter the 
market incrementally, the FCC may say no.  If another wants to upgrade the bandwidth of its routers at 
the cost of some latency, the FCC may block it.  Every decision to invest in ports for interconnection may 
be second-guessed; every use of priority coding to enable latency-sensitive applications like Voice over 
LTE may be reviewed with a microscope.  How will this all be resolved?  No one knows.  81-year-old 
laws like this don’t self-execute, and even in 317 pages, there’s not enough room for the FCC to describe 
how it would decide whether this or that broadband business practice is just and reasonable.  So 
                                                     
23
Order at paras. 139, 140, 141, 142, 143, 144, 145.
24
Corynne McSherry, Electronic Frontier Foundation, Dear FCC: Rethink The Vague “General Conduct” Rule 
(Feb. 24, 2015), available at http://bit.ly/1AIJrKU; see also Letter from Corynne McSherry, Intellectual Property 
Director, Electronic Frontier Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-191, 14-28 
(Feb. 19, 2015) (“The Commission has an important role to play in promulgating ‘rules of the road’ for broadband, 
but that role should be narrow and firmly bounded.  We fear the proposed ‘general conduct rule’ may meet neither 
criteria.  Accordingly, if the Commission intends to adopt a ‘general conduct rule’ it should spell out, in advance, the 
contours and limits of that rule, and clarify that the rule shall be applied only in specific circumstances.”), available 
at http://go.usa.gov/3cP53.
25
February 2015 Open Meeting Press Conference of Chairman Tom Wheeler (Feb. 26, 2015), available at 
http://www.fcc.gov/events/open-commission-meeting-february-2015 (165:30-166:51).
26
Order at para. 138.
27
See, e.g., Nilay Patel, We won the internet back, The Verge (Feb. 4, 2015), available at http://bit.ly/1C17xB5.
28
Communications Act § 201(a).
5businesses will have to decide for themselves—with newly-necessary counsel from high-priced attorneys 
and accountants—whether to take a risk.
That’s just from some of the rules that the FCC is deciding to apply now.  Yet more rules are on 
the horizon.  The Commission commits “to commence in the near term a separate proceeding to revisit 
the data roaming obligations of [mobile broadband] providers in light of our reclassification decisions” 
and to determine whether full-fledged common-carriage wholesale obligations should apply.
29
  And it 
promises a new rulemaking to apply section 222’s customer-proprietary network information provisions 
to Internet service providers.
30
  Still more are sure to come.
And then there is the temporary forbearance.  Did I forget to mention that?  Although the Order
crows that its forbearance from Title II’s provisions and rules yields a “‘light-touch’ regulatory 
framework,”
31
in reality it isn’t light at all, coming as it does with the provisos, limitations, and 
qualifications that the public has come to expect from Washington, DC.  The plan is quite clear about the 
limited duration of its forbearance decisions, stating that the FCC will revisit them in the future and 
proceed in an incremental manner with respect to additional regulation.
32
  In discussing additional rate 
regulation, tariffs, last-mile unbundling, burdensome administrative filing requirements, accounting 
standards, and entry and exit regulation, the plan repeatedly states that it is only forbearing “at this 
time.”
33
  For others, the FCC will not impose rules “for now.”
34
To be sure, with respect to some rules, the agency says that it “cannot envision” going further.
35
  
But as the history of this proceeding makes clear, temporal statements like these don’t tend to last very 
long.  Ask people who have followed this proceeding closely, and they could tell you that as late as 
November 2014, reclassification was not under serious consideration by the FCC “at this time,” Title II 
was not going to be imposed “for now,” and the agency “could not envision” going further than either a 
706-based approach or the Mozilla-inspired hybrid proposal.  In other words, expect the forbearance to 
fade and the regulations to ratchet up as time marches on.
A.
Consumers will be worse off under President Obama’s plan to regulate the Internet.  Consumers 
should expect their bills to go up, and they should expect that broadband will be slower going forward 
than it otherwise would have been.  This isn’t what anyone was promised, and no one likes paying more 
for less.
1.  New Broadband Taxes.—One avenue for higher bills is the new taxes and fees that will be 
applied to broadband.  Here’s the background.  If you look at your phone bill, you’ll see a “Universal 
Service Fee,” or something like it.  These fees (what most Americans would call taxes) are paid by 
Americans on their telephone service and funnel about $9 billion each year through the FCC—all outside 
                                                     
29
Order at para. 526.
30
Order at para. 462.
31
Order at para. 5.
32
See, e.g., Order at note 1487.
33
Order at paras. 497 (additional rate regulation and tariffing), 500 (same), 501 (same), 502 (same), 508 
(administrative filing requirements and accounting standards), 510 (entry and exit regulation), 513 (last-mile 
unbundling and resale).
34
Order at paras. 470, 488.
35
Order at para. 451; see also Order at paras. 452, 508.
6the congressional appropriations process.  Consumers haven’t had to pay these taxes on their broadband 
bills because broadband Internet access service has never before been a Title II service.
But now it is.  And so the Order explicitly opens the door to billions of dollars in new taxes on 
broadband.  As the Order frankly acknowledges, Title II “authorizes the Commission to impose universal 
service contributions requirements on telecommunications carriers—and, indeed, goes even further to 
require ‘[e]very telecommunications carrier that provides interstate telecommunications services’ to 
contribute.”
36
  And so the FCC now has a statutory obligation to make sure that all Internet service 
providers (and in the end, their customers) contribute to the Universal Service Fund.
That’s why the Order repeatedly states that it is only deferring a decision on new broadband 
taxes—not prohibiting them.
37
  This is fig-leaf forbearance, a reprieve only “insofar as [the provisions] 
would immediately require new universal service contributions for broadband Internet access services 
sold to end users but not insofar as they authorize the Commission to require such contributions in a 
rulemaking in the future.”
38
That future is swiftly approaching; it may be just a few months.  The Order notes that the FCC 
has referred the question of assessing state and federal taxes on broadband to the Federal-State Joint 
Board on Universal Service and has “requested a recommended decision by April 7, 2015,” right before 
Tax Day—although a “a short extension of that deadline” may be in order.
39
  It’s no surprise that many 
have interpreted this referral as a question of how to tax broadband, not whether to do so, and states have 
already begun discussions on how they will spend the extra money.
40
And the agency’s preference is clear.  The Order argues that taxing broadband “potentially could 
spread the base of contributions” and could add “to the stability of the universal service fund.”
41
  For 
those not familiar with this Beltway argot, let me translate:  “Extending these taxes to broadband would 
make it easier to spend more without public oversight.”  But using plain English hardly makes for a 
compelling public message.
We’ve seen this game played before.  During reform of the E-Rate program in July 2014, the 
FCC secretly told lobbyists that it would raise USF taxes after the election to pay for the promises it was 
                                                     
36
Order at para. 488 (quoting Communications Act § 254(d)).
37
See, e.g., Order at para. 489 (“We therefore conclude that limited forbearance is warranted at the present time in 
order to allow the Commission to consider the issues presented based on a full record in that docket.”).
38
Order at para. 490.
39
Order at note 1471.
40
See, e.g., Vermont Public Radio, Under New FCC Standard, 30 Percent Of Vermonters Now Lack Broadband (Feb. 3, 
2015) (“One of the things that would come along with [reclassification] is the ability to assess a universal service 
fee on broadband services. . . . If that happens, the money might be there to fund these higher speeds.”), available 
at http://digital.vpr.net/post/under-new-fcc-standard-30-percent-vermonters-now-lack-broadband.
41
Order at para. 489.
7making.
42
  Sure enough, in December 2014, the agency did just that—increasing E-Rate spending (and 
with it telephone taxes) by $1.5 billion per year.
43
The federal government is sure to tap this new revenue stream soon to spend more of consumers’ 
hard-earned dollars.  Indeed, it’s been publicly reported that the FCC is itching to use the Universal 
Service Fund to extend the Lifeline program to broadband.  That won’t come cheap.  In order to provide 
discounted broadband service to millions of Americans, the FCC will have to find the money somewhere.  
With this Order, that somewhere is your wallet.  So when it comes to broadband, read my lips:  More new 
taxes are coming.  It’s just a matter of when.
44
The great irony of all of this?  The broadband tax increase enabled by reclassification is going to 
deter broadband adoption, especially among the low-income Americans for whom broadband (especially 
mobile broadband) is increasingly important for professional success, education, and more.
45
  The iron 
law of microeconomics still holds:  The more you tax something, the less you get of it.  In this case, the 
FCC’s decision today will mean fewer digital opportunities for hard-working Americans tomorrow.
2.  Slower Broadband.—These Internet regulations will work another serious harm on consumers.  
Their broadband speeds will be slower than they would have been without these regulations.
The record is replete with evidence that Title II regulations will slow investment and innovation 
in broadband networks.
46
  Remember:  Broadband networks don’t have to be built.  Capital doesn’t have 
                                                     
42
Modernizing the E-Rate Program for Schools and Libraries, WC Docket No. 13-184, Report and Order and 
Further Notice of Proposed Rulemaking, 29 FCC Rcd 8870, 9042 (2014) (Dissenting Statement of Commissioner 
Ajit Pai); see also E-Rate Statement of FCC Commissioner Ajit Pai at the July 11, 2014 Open Meeting,
http://youtu.be/6LDko49R9YM.
43
Modernizing the E-Rate Program for Schools and Libraries; Connect America Fund, WC Docket Nos. 13-184, 
10-90, Second Report and Order and Order on Reconsideration, FCC 14-189 (rel. Dec. 19, 2014) (Dissenting 
Statement of Commissioner Ajit Pai), available at http://go.usa.gov/3cpm4.
44
In fact, broadband taxes may go up even further than this should the FCC revisit its decision to forbear from 
requiring contributions to the Telecommunications Relay Service (TRS) Fund.  See Order at para. 470 (“[F]or now 
we do forbear in part from the application of TRS contribution obligations that otherwise would newly apply to 
broadband Internet access service”) (emphasis added).  There, too, the fix may be in.  See id. (“Applying new TRS 
contribution requirements on broadband Internet access potentially could spread the base of contributions to the TRS 
Fund, having the benefit of adding to the stability of the TRS Fund.  Nevertheless, before taking any steps that 
would depart from the status quo in this regard, the Commission would like to assess the need for such additional 
funding, and the appropriate contribution level.”).
45
Letter from Kim Keenan, President & Chief Executive Officer, MMTC, to the Honorable Tom Wheeler, 
Chairman, FCC, et al., GN Docket No. 14-28, at 3 (Feb. 18, 2015) (“Title II regulation, even when ostensibly 
administered with a lighter touch, will likely have unintended consequences on broadband adoption for people of 
color, the disabled, the economically disadvantaged, rural residents, and seniors.”), available at
http://apps.fcc.gov/ecfs/document/view?id=60001030899.
46
See, e.g., ACA Comments at 60–66; Alcatel-Lucent Comments at 2; AT&T Comments at 51–53; CenturyLink 
Comments at 5–6; Charter Comments at 13, 15–16; Cisco Comments at 27; Comcast Comments at 46–50; Cox 
Comments at 34–36; CTIA Comments at 46–48; Ericsson Comments at 12; Frontier Comments at 2–4; Qualcomm 
Comments at 4–7; Verizon Comments at 57; Letter from Matthew A. Brill, Counsel for National Cable & 
Telecommunications Association, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 3–5 
(Dec. 23, 2014); Letter from Patrick S. Brogan, USTelecom to Marlene Dortch, Secretary, FCC, GN Docket No. 14-
28 (Nov. 19, 2014) (attaching Kevin A. Hassett & Robert J. Shapiro, Sonecon, The Impact of Title II Regulation of 
Internet Providers on Their Capital Investment (Nov. 2014)); Letter from Laurence Brett Glass, d/b/a LARIAT to 
Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (Jan. 9, 2015); Letter from John Mayo, Exec. 
Director, Georgetown Center for Business and Public Policy to Marlene H. Dortch, Secretary, FCC, GN Docket No. 
14-28 (Jan. 16, 2015) (attaching Anna-Maria Kovacs, Regulatory Uncertainty: The FCC’s Open Internet Docket 
(continued…)
8to be invested here.  Risks don’t have to be taken.  The more difficult the FCC makes the business case 
for deployment—and micromanaging everything from interconnection to service plans makes it difficult 
indeed—the less likely it is that broadband providers big and small will connect Americans with digital 
opportunities.  And neither big nor small providers will bring rural and poor Americans online if it’s 
economically irrational for them to do so.  Utility-style regulation of the kind the FCC adopts here thus 
will simply broaden the digital divide.
The Old World offers a cautionary tale here.  Compare the broadband market in the United States 
to that in Europe, where broadband is generally regulated as a public utility.  Data show that 82% of 
Americans, and 48% of rural Americans, have access to 25 Mbps broadband speeds.  In Europe, those 
figures are only 54% and 12%, respectively.  Similarly, wireline broadband providers in the United States 
are investing more than twice as much as their European counterparts ($562 per household versus $244).  
The data for wireless broadband providers shows the same pattern ($110 per person versus $55).  In the 
United States, broadband providers deploy fiber to the premises about twice as often (23% versus 12%).  
And with respect to mobile broadband, 30% of subscribers in the United States have the fastest 
technology in wide deployment, 4G LTE, but in Europe that figure is only 4%.  Moreover, in the United 
States, average mobile speeds are about 30% faster than they are in Western Europe.
47
It’s no wonder that many Europeans are perplexed by what is taking place at the FCC.  Just days 
before the FCC adopted this Order, for example, the Secretary General of the European People’s Party, 
the largest party in the European Parliament, observed that the FCC, “at the behest of . . . [P]resident 
[Obama] himself,”, was about to impose the type of “[r]egulation which . . . has led Europe to fall behind 
the US in levels of investment.”
48
But the Order doesn’t just adopt utility-style regulation.  It goes even further and injects 
tremendous uncertainty into the market.  At least with easy-to-understand, bright-line rules, a business 
can plan.  But a thick regulatory haze—rules that are unclear with the overhang of more rules to come—
should make any rational businesses hold back on investment and start returning any free cash back to 
their shareholders.
Ironically enough, the Commission itself acknowledges at one point that “vague or unclear 
regulatory requirements could stymie rather than encourage innovation.”
49
  But those are precisely the 
kind of requirements the FCC is adopting.  Its predictive judgment that uncertainty is “likely to be short 
(Continued from previous page)                                                           
(Jan. 2015)); Martin H. Thelle & Dr. Bruno Basalisco, Copenhagen Economics, Europe Can Catch Up With the US: 
A Contrast of Two Contrary Broadband Models (June 2013), available at http://bit.ly/1zJritJ.
47
Christopher S. Yoo, U.S. vs. European Broadband Deployment: What Do the Data Say?  Penn Law Center for 
Technology, Innovation and Competition, at 4–5, 13, 23 (June 2014), available at
http://apps.fcc.gov/ecfs/document/view?id=7521285448; CISCO, VNI Mobile Forecast Highlights, 2014-2019 
(compare the average mobile connection speed in the United States of 2,619 kbps with the 2,037 kbps average 
mobile connection speed in Western Europe), available at 
http://www.cisco.com/assets/sol/sp/vni/forecast_highlights_mobile/index.html#~Country; see also Roger Entner, 
Spectrum Fuels Speed and Prosperity, Recon Analytics (Sep. 2014), available at 
http://apps.fcc.gov/ecfs/document/view?id=60000870483; Letter from Scott K. Bergmann, Vice President –
Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 (Feb. 10, 2015), 
available at http://apps.fcc.gov/ecfs/document/view?id=60001028379; Letter from Scott K. Bergmann, Vice 
President – Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 (Oct. 
2, 2014), available at http://apps.fcc.gov/ecfs/document/view?id=60000870404.
48
Letter from Antonio López Istúriz-White MEP, Secretary General, European People’s Party, to the Editor, 
Financial Times (Feb. 22, 2015), available at http://on.ft.com/1DViF4r.
49
Order at para. 138.
9term and will dissipate over time as the marketplace internalizes our Title II approach”
50
prioritizes faith 
above experience.
Making it all worse is the fact that the FCC cannot promise anything about how these new rules 
will be enforced because it is not the only adjudicator.  After this decision, “[a]ny person claiming to be 
damaged by any” Internet service provider “may bring suit for the recovery of the damages” in any 
federal district court.
51
  Although the Order hesitates to admit it,
52
the FCC has now condoned litigation—
from individual claims about the justness and reasonableness of ISP pricing to sprawling class actions for 
violations of the new Internet conduct rule—as an appropriate means of regulating the Internet economy.  
Is there any American who believes that administrative wrangling at the FCC and endless litigation in the 
federal courts will do anything for the American consumer?
The not-so-dirty secret, of course, is that this will be a boon for trial lawyers.  And the Order’s 
decisions will make their lives even easier.  Every edge provider, and thus every person online, is now 
swept up by FCC’s new and rather peculiar view of what constitutes broadband Internet access service.  
This means that a wayward plaintiff’s attorney could sue every single Internet service provider in the 
country from his hometown courtroom.  I’m sure such litigation will benefit our nation’s lawyers, but the 
American people—not so much.
And these are just the intended results of reclassification!
There are unintended consequences as well.  For one, the rate that broadband providers—ranging 
from small-town cable operators to new entrants like Google—pay to deploy broadband will go up by an 
estimated $150–200 million per year.
53
  And that’s because the Communications Act establishes a higher 
rate for telecommunications carriers to pay for access to poles, conduits, and rights of way than other 
Internet service providers.
While it may not be the “Commission’s intent to see any increase in the rates for pole 
attachments,”
54
the agency has no power to stop it.  The actual utilities that own these poles get to charge 
what they want up to the statutory maximum, and the FCC has just raised that maximum.  Or to use the 
FCC’s preferred parlance, utilities will have the “incentive and ability” to exploit this new maximum rate 
for Internet service providers.  The end result:  Reclassification would subject Internet service providers 
“to significantly higher attachment rates, inadvertently threatening the very broadband deployment the 
Commission seeks to facilitate.”
55
For another, reclassification will expose many small companies to higher state and local taxes.  
Tax rates on telecommunications companies are often significantly higher than those imposed on general 
businesses, and so reclassification threatens Internet service providers with property tax hikes, new 
                                                     
50
Order at para. 410.
51
Communications Act § 207.
52
Order at para. 455 (noting the importance of the “doctrine of primary jurisdiction” but declining to forbear from 
applying section 207 to Internet service providers).
53
See, e.g., Letter from Steven F. Morris, Vice President and Associate General Counsel, National Cable & 
Telecommunications Association, GN Docket No. 14-28, WC Docket No. 07-245, at 2 (Jan. 22, 2015), available at
http://go.usa.gov/3cppB.
54
Order at para. 482.
55
Letter from Thomas Cohen & Edward A. Yorkgitis, Jr., Counsel for American Cable Association, to Marlene H. 
Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, 09-51, WC Docket No. 07-245, at 2 (Jan. 20, 2015), 
available at http://apps.fcc.gov/ecfs/document/view?id=60001014745.
10
transaction-based taxes and fees, and greater income, franchising, and gross receipts taxes.
56
  And these 
tax hikes won’t necessarily be de minimis.  In the District of Columbia, for instance, companies will face 
an instant 11% increase in taxes on their gross receipts.
57
  That big bite will leave a welt on Washington 
consumers’ wallets.
The Order trots out Congress’s recent (temporary) extension of the Internet Tax Freedom Act to 
claim that states and localities cannot impose new “[t]axes on Internet access.”
58
  And that’s true (and a 
victory for consumers).  But broadband taxes like those imposed by the Order have evaded the scope of 
the Internet Tax Freedom Act so far—because they are “fees,” not “taxes,” and because they’re not 
exclusively about “Internet access” but more generally applied.
59
  And since Congress has not entrusted 
the Commission with interpreting the Internet Tax Freedom Act, even our most fervent pronouncements 
for it to be broader will not make it so.
All of these new fees and costs add up.  One estimate puts the total at $11 billion a year.
60
  And 
every dollar spent on fees and new costs like lawyers and accountants has to come from somewhere: 
either the pockets of the American consumer or projects to deploy faster broadband.  And so these higher 
costs will lead to slower speeds and higher prices—in short, less value—for the American consumer.
B.
So do American consumers want slower speeds at higher prices?  I don’t think so.
That’s certainly not what I heard when I hosted the Texas Forum on Internet Regulation in 
College Station, the FCC’s only field hearing on net neutrality where audience members were allowed to 
speak.  There, I heard from Internet innovators, from students, from everyday people who wanted 
something else from the FCC—something that I thought had a familiar ring to it.  The consumers I spoke 
with wanted competition, competition, competition.
And yet, literally nothing in this Order will promote competition among Internet service 
providers.  To the contrary, reclassifying broadband, applying the bulk of Title II rules, and half-heartedly 
forbearing from the rest “for now” will drive smaller competitors out of business and leave the rest in 
regulatory vassalage.  Monopoly rules designed for the monopoly era will inevitably move us in the 
direction of a monopoly.  President Obama’s plan to regulate the Internet is nothing more than a 
                                                     
56
Letter from James Assey, Executive Vice President, National Cable & Telecommunications Association, to 
Jonathan Sallet, General Counsel, FCC, GN Docket Nos. 14-28, 10-127, at 2 (Dec. 2, 2014), available at 
http://apps.fcc.gov/ecfs/document/view?id=60000989301.
57
Id. at 3–4.
58
Order at para. 430 (quoting Internet Tax Freedom Act § 1101(a)(1), Pub. L. 105-277, 112 Stat. 2681, 2719 
(1998), and citing Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 624, 128 
Stat. 2130, 2377 (2014)).
59
Letter from James Assey, Executive Vice President, National Cable & Telecommunications Association, to 
Jonathan Sallet, General Counsel, FCC, GN Docket Nos. 14-28, 10-127, at 3 (Dec. 2, 2014).
60
Hal Singer & Robert Litan, No Guarantees When It Comes to Telecom Fees, Progressive Policy Institute Blog, at 
FN5 (Dec. 16, 2014) (estimating annual taxes and fees of $11 billion assuming the Internet Tax Freedom Act is 
made permanent), available at http://bit.ly/1AcraGq; Robert Litan & Hal Singer, Outdated Regulations Will Make 
Consumers Pay More for Broadband, Progressive Policy Institute Policy Brief, at 1 (Dec. 1, 2014) (estimating 
annual taxes and fees of $15 billion assuming the Internet Tax Freedom Act expires), available at
http://bit.ly/1wcR7VX.
11
Kingsbury Commitment for the digital age.
61
  If you liked the Ma Bell monopoly in the 20
th
century, 
you’ll love Pa Broadband in the 21
st
.
Today there are thousands of smaller Internet service providers—wireless Internet service 
providers (WISPs), small-town cable operators, municipal broadband providers, electric cooperatives, and 
others—that don’t have the means or the margins to withstand a regulatory onslaught.  Imposing on 
competitive broadband companies the rules designed to constrain Cornelius Vanderbilt’s railroad empire 
or the continent-spanning Bell telephone monopoly will do nothing but raise the costs of doing business.  
Smaller, rural competitors will be disproportionately affected, and the FCC’s decision will diminish 
competition—the best guarantor of consumer welfare.
This isn’t just my view.  The President’s own Small Business Administration—apparently acting 
independently—admonished the FCC that its proposed rules would unduly burden small businesses.  The 
SBA urged the FCC to “address[] the concerns raised by small businesses in comments” and “exercise 
appropriate caution in tailoring its final rules to mitigate any anti-competitive pressure on small 
broadband providers as well.”
62
  Following the President’s lead, the FCC ignores this admonition by 
applying heavy-handed Title II regulations to each and every small broadband provider as if it were an 
industrial giant.  As a result, small providers will be squeezed—perhaps out of business altogether.  If 
they go dark, consumers they serve (including my parents, who are WISP subscribers in rural Kansas) 
will be thrown offline.
Unsurprisingly, small Internet service providers are worried.  I heard this for myself at the Texas 
Forum on Internet Regulation.  One of the panelists, Joe Portman, runs Alamo Broadband, a WISP that 
serves 700 people across 500 square miles south of San Antonio.  As he put it, his customers “had very 
limited choices for internet service before we came along.  The big names, the telcos and cable 
companies, when it comes to rural areas such as the areas we serve don’t see the value and won’t invest 
the capital (at least if it’s their money) to build infrastructure and bring service to the people that live 
there.  We, and thousands others like us, have found a way to do it.”
63
What does Joe think of Title II?  He thinks it’s “pretty much a terrible idea.”
64
  His staff “is pretty 
busy just dealing with the loads we already carry.  More staff to cover regulations means less funds to run 
the network and provide the very service our customers depend on.”  Bottom line?  Title II will just 
impede broadband deployment—especially from WISPs like his.
Other WISPs feel the same way.  Take Galen Manners, in my hometown of Parsons, Kansas.  He 
runs Wave Wireless, a WISP that delivers Internet access to residents of rural Labette County
65
—
including my parents.  I can tell you from personal knowledge that folks back home have few options.  
Google Fiber isn’t building there; other major ISPs wouldn’t bother either.
                                                     
61
Remarks of FCC Commissioner Ajit Pai at TechFreedom’s Forum on the 100th Anniversary of the Kingsbury 
Commitment (Dec. 19, 2013), available at http://go.usa.gov/3cKdk.
62
Small Business Administration Office of Advocacy, Fact Sheet: Advocacy Submits Comments to the Federal 
Communications Commission regarding Small Business Engagement and Regulatory Flexibility Act Compliance, 
http://go.usa.gov/3cKdP (Sept. 25, 2014); Letter from Winslow L. Sargeant, Ph.D., Chief Counsel, Office of 
Advocacy, U.S. Small Business Administration, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 13-
5, 12-353, WC Docket Nos. 05-25, 10-90, RM-10593 (Sept. 25, 2014), available at http://go.usa.gov/3cKsm.
63
Testimony of Joe Portman, President and Founder, Alamo Broadband Inc., Elmendorf, Texas, at the Texas Forum 
on Internet Regulation, at 1 (Oct. 21, 2014), available at http://go.usa.gov/3cpPe.
64
Id. at 2.
65
See Wave Wireless, About Us, http://www.wavewls.com/about-us.html.
12
Manners said that Wave Wireless “will feel the sting of the [Title II] regulations,” which “will 
complicate and increase the cost of providing service.  The result is the consumer will pay more for [his] 
service.”  Manners hopes he can weather the regulatory storm, unlike WISPs that he thinks may go out of 
business.  But he summed up his situation in a way that applies to companies and customers nationwide:  
“It’s not a good thing for business.  It’s not a good thing for the consumer. . . . It’s going to be a game-
changer.”
66
Just last week, 142 WISPs joined the chorus.  Whether it’s Aerux.com in Castle Rock, Colorado, 
or Aristotle.Net in Little Rock, Arkansas, whether it’s STE Wireless in Utica, Nebraska, or Cyber 
Broadcasting in Coal City, Illinois, these WISPs have deployed wireless broadband to customers who 
often have no alternatives.  They rely heavily on unlicensed spectrum, take no federal subsidies, and often 
run on a shoestring budget with just a few people to run the business, install equipment, and handle 
service calls.  They have no incentive and no ability to take on commercial giants like Netflix.  And they 
say the FCC’s new “regulatory intrusion into our businesses . . . would likely force us to raise prices, 
delay deployment expansion, or both.”
67
Or consider the views of 24 of the country’s smallest Internet service providers, each with fewer 
than 1,000 residential broadband customers.  The largest, FamilyView Cablevision, has just 900 
customers in Pendleton, South Carolina.  The smallest, Main Street Broadband, has just 4 residential 
customers in Cannon Falls, Minnesota.  They wrote us that Title II “will badly strain our limited 
resources” because these Internet service providers “have no in-house attorneys and no budget line items 
for outside counsel” and the “rules of the road . . . could change anytime the issues an advisory, rules on a 
complaint, or adopts new rules.  To subject small and medium-sized ISPs to such a regime, no less the 
very smallest of ISPs, is simply unreasonable.”
68
Or how about the 43 municipal broadband providers that flatly told the FCC that “there is no
basis for the Commission to reclassify our Internet service for the purpose of imposing any Title II
common carrier obligations.”
69
  They continued, “Title II regulation will undermine the business model
that supports our network, raises our costs and hinders our ability to further deploy broadband.”
70
  Their 
closing is a stinging rebuke to those who argue that Title II is harmless to those providers who don’t harm 
consumers:
[W]e ask that you not fall prey to the facile argument that if smaller ISPs are not blocking,
throttling, or discriminating amongst Internet traffic on their networks today, they have nothing to
fear because they will experience no harm under Title II regulation.  The economic harm will
flow not from following net neutrality principles, which we do today because we think it is
                                                     
66
Ray Nolting, Proposed regulations concern business, FCC commissioner, Parsons Sun (Feb. 21, 2015), available 
at http://bit.ly/1JOoplx.
67
Letter from Dustin Surran, Aerux.com, Castle Rock, Colorado, Bryan Robinson, Affordable Internet Solutions, 
Waverly, Nebraska, and 140 other WISPs to the Honorable Thomas Wheeler, Chairman, FCC, GN Docket No. 14-
28 (Feb. 19, 2015), available at http://go.usa.gov/3c8rH.
68
Letter from Robert J. Dunker, Owner/President, Atwood Cable Systems, Inc., Atwood, Kansas, Richard A. 
Nowak, Owner/President, Bellaire TV Cable Company, Bellaire, Ohio, and 22 other small ISPs to the Honorable 
Thomas Wheeler, Chairman, FCC, GN Docket Nos. 14-28, 10-127 (Feb. 17, 2015), available at
http://go.usa.gov/3cpPw.
69
Letter from Randy Darwin Tilk, Utility Manager, Alta Municipal Broadband Communications, Alta, Iowa, Loras 
Herrig, City Administrator, Bellevue Municipal Cable, Bellevue, Iowa, and 41 other municipal ISPs to the 
Honorable Thomas Wheeler, Chairman, FCC, GN Docket Nos. 14-28, 10-127, at 1 (Feb. 10, 2015), available at 
http://apps.fcc.gov/ecfs/document/view?id=60001028442.
70
Id. at 1.
13
beneficial to all, but from the collateral effects of a change in regulatory status that will trigger
consequences beyond the Commission’s control and risk serious harm to our ability to fund and
deploy broadband without bringing any concrete benefit for consumers or edge providers that the
market is not already proving today without the aid of any additional regulation.
71
There’s a special irony given that right before this vote, the FCC voted to preempt state laws 
regarding city-owned broadband projects.  This is an initiative President Obama announced just one 
month before this Order was adopted while he was in Cedar Falls, Iowa, and the FCC is now dutifully 
implementing that initiative too.  But I’m not sure the President realized that Cedar Falls Utilities, the 
very municipal broadband provider he touted, thinks that Title II is a tremendous mistake.
72
  Well, now 
he—and we—know better.
It’s for these reasons that the Small Business & Entrepreneurship Council, a nonprofit 
organization representing nearly 100,000 small businesses nationwide, wrote to us that Title II “will 
deeply erode investment and innovation, which will dramatically harm entrepreneurs and small 
businesses.”
73
It’s for these reasons that the National Black Chamber of Commerce, the National Gay & Lesbian 
Chamber of Commerce, the U.S. Hispanic Chamber of Commerce, and the U.S. Pan Asian American 
Chamber of Commerce wrote us that “Forcing the Internet into a Title II classification can only make it 
more difficult for individuals to make the highest and best use of this important tool . . . . The last thing 
small businesses in America need are more forms to fill out; more regulations to track; and more rules to 
follow.”
74
And it’s for these reasons that the trade associations for our nation’s smallest Internet service 
providers asked the FCC last month to “conduct an en banc hearing to examine the significant economic 
impact of its proposals on small broadband providers.”
75
  I would have welcomed such an en banc
hearing.  But like all other calls for greater transparency in this proceeding, this request was denied.
So what does the Order tell the Americans whose Internet service provider isn’t a Comcast, an 
AT&T, a Google, or a Sprint?  What does it tell those whose service will be more expensive as a direct 
result of reclassification?  What does it tell those who may lose their Internet service if their small 
operator goes out of business?  What does it tell those who worked for years to serve their community and 
build a business, one that’s finally in the black?  There’s no explanation.  There’s not even an 
acknowledgement.  There’s just the smug assurance that it won’t be that bad.
C.
So while the FCC is abandoning a 20-year-old, bipartisan framework for keeping the Internet free 
and open in favor of Great Depression-era legislation designed to regulate Ma Bell, at least the American 
                                                     
71
Id. at 2.
72
See Editorial, Obama’s Favorite Internet Company, The Wall Street Journal (Feb. 5, 2015), available at 
http://on.wsj.com/1KnkoBh; Matthew Patane, Obama-touted Iowa utility balks at FCC Internet plan, Des Moines 
Register (Feb. 5, 2015), available at http://dmreg.co/1zg2VCS.
73
Small Business & Entrepreneurship Council Comments at 2.
74
National Black Chamber of Commerce et al. Comments at 2.
75
Letter from Ross J. Lieberman, Senior Vice President of Government Affairs, American Cable Association, Lisa 
Schoenthaler, Vice President for Association Affairs Office of Rural/Small Systems, and Stephen E. Coran, Counsel 
for the Wireless Internet Service Providers Association, to the Honorable Tom Wheeler, Chairman, FCC, GN 
Docket No. 14-28, at 1 (Jan. 9, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001012562.
14
public is getting something in return, right?  Wrong.  The Internet is not broken.  There is no problem for 
the government to solve.
That the Internet works—that Internet freedom works—should be obvious to anyone with a Dell 
laptop or an HP Desktop, an Apple iPhone or Microsoft Surface, a Samsung Smart TV or a Roku, a Nest 
Thermostat or a Fitbit.  We live in a time where you can buy a movie from iTunes, watch a music video 
on YouTube, post a photo of your daughter on Facebook, listen to a personalized playlist on Pandora, 
watch your favorite Philip K. Dick novel come to life on Amazon Streaming Video, help someone make 
potato salad on KickStarter, check out the latest comic at XKCD, see what Seinfeld’s been up to on 
Crackle, manage your fantasy football team on ESPN, get almost any question answered on Quora, 
navigate bad traffic with Waze, and do literally hundreds of other things all with an online connection.  At 
the start of the millennium, we didn’t have any of this Internet innovation.
And no, the federal government didn’t build that.  It didn’t trench the fiber.  It didn’t erect the 
towers.  It didn’t string the cable from one pole to the next, and it didn’t design the routers that direct 
terabits of data across the Internet each and every second.  It didn’t invest in startups at the angel or seed 
stage or Series A rounds.  It didn’t code the webpages, the software, the applications, or the databases that 
make the online world useful.  And it didn’t create the content that makes going online so worthwhile.
For all intents and purposes, the Internet didn’t exist until the private sector took it over in the 
1990s, and it’s been the commercial Internet that has led to the innovation, the creativity, the engineering 
genius that we see today.
Nevertheless, the Order ominously claims that “[t]hreats to Internet openness remain today,” that 
broadband providers “hold all the tools necessary to deceive consumers, degrade content or disfavor the 
content that they don’t like,” and that the FCC continues “to hear concerns about other broadband 
provider practices involving blocking or degrading third-party applications.”
76
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.
But the Order trots out other horribles:  “[B]roadband providers have both the incentive and the 
ability to act as gatekeepers,”
77
“the potential to cause a variety of other negative externalities that hurt the 
open nature of the Internet,”
78
and “the incentive and ability to engage in paid prioritization”
79
or other 
“consumer harms.”
80
  The common thread linking these and countless other exhibits is that they simply do 
not exist.  One could read the entire document—and I did—without finding anything more than 
hypothesized harms.  One would think that a broken Internet marketplace would be rife with 
anticompetitive examples.  But the agency doesn’t list them.  And it’s not for a lack of effort.
So what is there to fear?  A sober reader might borrow from the father of Title II:  “The only 
thing we have to fear is fear itself.”  But the FCC instead intones the nine scariest words for any friend of 
Internet freedom:  “I’m from the government, and I’m here to help.”
                                                     
76
Order at para. 8.
77
Order at para. 20.
78
Order at para. 83.
79
Order at para. 127.
80
Order at para. 200.
15
To put it another way, Title II is not just a solution in search of a problem—it’s a government 
solution that creates a real-world problem.  This is not what the Internet needs, and it’s not what the 
American people want.
D.
So—that’s substance.  A few words on process.  When the Commission launched this 
rulemaking, I said that we needed to “give the American people a full and fair opportunity to participate 
in this process.”
81
  Unfortunately, over the course of the past nine months, we have fallen woefully short 
of that standard.
Most importantly, the plan in front of us today was not formulated within this building through a 
transparent notice-and-comment rulemaking process.  Rather, The Wall Street Journal reports that it was 
developed through “an unusual, secretive effort inside the White House.”
82
  Indeed, White House 
officials, according to the Journal, functioned as a “parallel version of the FCC.”
83
  Their work led to the 
President’s announcement in November of his plan for Internet regulation, a plan which “blindsided” the 
FCC and “swept aside . . . months of work by [Chairman] Wheeler toward a compromise.”
84
Therefore, all of the action at the Commission was just for show.  Those filing comments, holding 
publicly disclosed meetings with FCC officials, or participating in FCC roundtables were being led to 
believe that their input would matter.  But the joke was on them.  While the media and the public were 
focusing on events at the FCC, the real action was occurring behind closed doors at the White House.
Of course, a few insiders were clued in about what was transpiring.  Just listen to what a leader 
for the
85
group Fight for the Future had to say:  “We’ve been hearing for weeks from our allies in DC that 
the only thing that could stop FCC Chairman Tom Wheeler from moving ahead with his sham proposal to 
gut net neutrality was if we could get the President to step in.  So we did everything in our power to make 
that happen.  We took the gloves off and played hard, and now we get to celebrate a sweet victory.”
86
What the press has called the “parallel FCC” at the White House opened its doors to a plethora of 
special-interest activists: Daily Kos, Demand Progress, Fight for the Future, Free Press, and Public 
Knowledge, just to name a few.
87
  Indeed, even before activists were blocking Chairman Wheeler’s 
driveway late last year, some of them had met with White House officials.
88
  But what about the rest of 
the American people?  They certainly couldn’t get White House meetings.  They were shut out of the 
process.  They were being played for fools.
                                                     
81
Protecting & Promoting the Open Internet, GN Docket No. 14-28, Notice of Proposed Rulemaking, 29 FCC Rcd 
5561, 5656 (2014) (Notice) (Dissenting Statement of Commissioner Ajit Pai), available at http://go.usa.gov/3cpEj.
82
Gautham Nagesh & Brody Mullins, Net Neutrality: How White House Thwarted FCC Chief, Wall Street Journal, 
(Feb. 4, 2015), available at http://on.wsj.com/16FXTcH.
83
Id.
84
Id.; see also Gautham Nagesh, FCC ‘Net Neutrality’ Plan Calls for More Power Broadband:  Chairman Tom 
Wheeler Considers Hybrid Approach to Internet Access, Wall Street Journal (Oct. 30, 2014) (“Mr. Wheeler is close 
to settling on a hybrid approach, people close to the chairman say.”), available at http://on.wsj.com/1ES0YkT.
85
[[Intentionally omitted]]. 
86
Kerry Picket, Obama’s Move to Regulate Internet Has Activists’ “Fingerprints All Over It,” The Daily Caller, 
(Feb. 23, 2015), available at http://bit.ly/1zg6pFj.
87
Id.
88
Id.
16
And the situation didn’t improve once the White House announced President Obama’s plan and 
“ask[ed]” the FCC to “implement” it.
89
  The document in front of us today differs dramatically from the 
proposal that the FCC put out for comment last May.  It differs so dramatically that even net neutrality 
advocates frantically rushed in recent days to make last-minute filings registering their concerns that the
FCC might be going too far.
90
  Yet the American people to this day have not been allowed to see 
President Obama’s plan.  It has remained secret.
Especially given the unique importance of the Internet, Commissioner O’Rielly and I asked for 
the plan to be released to the public.  Senate Commerce Committee Chairman John Thune and House of 
Representatives Energy and Commerce Chairman Fred Upton requested this as well.  And according to a 
survey last week by a respected Democratic polling firm, 79% of the American people favored making 
the document public.
91
  But still the FCC’s leadership has insisted on keeping it hidden.  We have to pass 
President Obama’s 317-page plan so that the American people can find out what is in it.
This isn’t how the FCC should operate.  We should be an independent agency making decisions 
in a transparent manner based on the law and the facts in the record.  We shouldn’t be a rubber stamp for 
political decisions made by the White House.
And we should have released this plan to the public, solicited their feedback, incorporated that 
input into the plan, and then proceeded to a vote.  There was no need for us to resolve this matter today.  
There is no immediate crisis in the Internet marketplace that demands immediate action.
The backers of the President’s plan know this.  But they also know that the details of this plan 
cannot stand up to the light of day.  They know that the more the American people learn about this plan, 
the less they like it.  That is why this plan was developed behind closed doors at the White House.  And 
that is why the plan has remained hidden from public view.
II.
There’s another reason the public does not know what rules the Order adopts.  The Commission 
never proposed them.
A.
Recall that last year’s Notice came on the heels of the D.C. Circuit’s Verizon decision, which 
“struck down the ‘anti-blocking’ and ‘anti-discrimination’ rules,” holding that “the Commission had 
imposed per se common carriage requirements on providers of Internet access services.”
92
  The purpose 
of the Notice was to “respond directly to that remand and propose to adopt enforceable rules of the road, 
consistent with the court’s opinion, to protect and promote the open Internet.”
93
  Or, as Chairman Wheeler 
put it:  “In response [to the Verizon decision], I promptly stated that we would reinstate rules that achieve 
                                                     
89
See The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet, 
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014).
90
See, e.g., Letter from Austin C. Schlick, Director, Communications Law, Google Inc., to Marlene H. Dortch, 
Secretary, FCC, GN Docket Nos. 14-28, 10-127 (Feb. 20, 2015), available at 
http://apps.fcc.gov/ecfs/document/view?id=60001032150; Letter from Corynne McSherry, Intellectual Property 
Director, Electronic Frontier Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-191, 14-28 
(Feb. 19, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001031536.
91
The Progressive Policy Institute, Press Release, New Survey Finds Americans Skeptical that FCC Regulation of 
the Internet Will Be Helpful; Favor More Disclosure (Feb. 19, 2015), available at http://bit.ly/1FyPKoO.
92
Notice, 29 FCC Rcd at 5569, para. 23 (citing Verizon v. FCC, 740 F.3d 623, 656–59 (D.C. Cir. 2014)).
93
Notice, 29 FCC Rcd at 5569, para. 24.
17
the goals of the 2010 Order using the Section 706-based roadmap laid out by the court.  That is what we 
are proposing today.”
94
And it was.  Every single proposal and every single tentative conclusion in the Notice was 
tailored to avoid reclassification and to comply with the limits the Verizon court put on the Commission’s 
authority under section 706 of the Telecommunications Act.
For example, the Notice proposed to define “blocking” as failing “to provide an edge provider 
with a minimum level of access that is sufficiently robust, fast, and dynamic for effective use by end users 
and edge providers.”
95
  It did so “to make clear that the no-blocking rule would allow individualized 
bargaining above a minimum level of access,” which was “the revised rationale the court suggested would 
be permissible rather than per se common carriage.”
96
  The Notice then devoted an entire section to 
“establishing the minimum level of access under the no-blocking rule,”
97
because “the [Verizon] court 
suggested [such a rule] would be permissible rather than per se common carriage”
98
and would be 
“[c]onsistent with the court’s ruling.”
99
The Notice was even more forthright that its proposed rule barring commercially unreasonable 
practices was tied to the limits of the Verizon decision.  Under that rule, the Commission would, 
“consistent with the court’s decision, . . . permit broadband providers to engage in individualized 
practices”—indeed, the “encouragement of individualized negotiation” was one of its “essential 
elements.”
100
  The Notice tentatively concluded that such a rule was appropriate because the “court 
underscored the validity of the ‘commercially reasonable’ legal standard”
101
and “explained that such an 
approach distinguished the data roaming rules at issue in Cellco from common carrier obligations.”
102
  Or 
as the Notice put it:  “The core purpose of the legal standard that we wish to adopt . . . is to effectively 
employ the authority that the Verizon court held was within the Commission’s power under section 
706.”
103
  Or as the title of that subpart put it even more bluntly:  The goal of the FCC was “codifying an 
enforceable rule to protect the open Internet that is not common carriage per se.”
104
If this weren’t enough, the FCC “propose[d] that the Commission exercise its authority under 
section 706, consistent with the D.C. Circuit’s opinion in Verizon v. FCC, to adopt our proposed rules”
105
and then cited section 706 of the Telecommunications Act—but not a single provision of Title II—in the 
                                                     
94
Notice, 29 FCC Rcd at 5647 (Statement of Chairman Tom Wheeler).
95
Notice, 29 FCC Rcd at 5627 (Proposed Rule § 8.11(a)).
96
Notice, 29 FCC Rcd at 5595, para. 95.
97
Notice, 29 FCC Rcd at 5596, Section III.D.3 (capitalizations omitted); see Notice 29 FCC Rcd at 5596–98, paras. 
97–104 (discussing the proposed minimum-level-of-access requirement).
98
Notice, 29 FCC Rcd at 5595, para. 95.
99
Notice, 29 FCC Rcd at 5596, para. 97.
100
Notice, 29 FCC Rcd at 5599–5600, para. 111.
101
Notice, 29 FCC Rcd at 5599, para. 110.
102
Notice, 29 FCC Rcd at 5602, para. 116.
103
Notice, 29 FCC Rcd at 5602, para. 118.
104
Notice, 29 FCC Rcd at 5599, Subpart III.E (capitalizations omitted); see also Notice, 29 FCC Rcd at 5602–10, 
paras. 116–41 (discussing the proposed no-commercially-unreasonable-practices rule).
105
Notice, 29 FCC Rcd at 5610, para. 142.
18
Notice’s ordering clauses.
106
  And it affirmatively proposed to remove several legal provisions from the 
“authority” section of our Part 8 “Open Internet” rules—including all references to Title II—and leave 
section 706 of the Telecommunications Act as the prime authority for the proposed rules.
107
In all, the Notice cited or quoted the Verizon decision 52 separate times,
108
proposed two pages of 
rules that would be consistent with that decision and within the Commission’s section 706 authority,
109
and reiterated in tentative conclusion after tentative conclusion that the FCC should tread no further than 
the limits the Verizon court set on the FCC’s authority under section 706.
Contrast that with today’s decision.  The entire Order is premised on the reclassification of 
broadband Internet access service as a Title II, telecommunications service.  Accordingly, none of these 
rules follow the section 706-based roadmap laid out by the Verizon court, and none of them purport to do 
so.
110
  As a result, instead of a minimum-level-of-access rule (that would follow the roadmap), the Order
adopts the flat no-blocking rule that the Verizon court overturned.
111
  Instead of the rule against 
commercially unreasonable practices, which was intended to encourage “individualized negotiation,” the 
Order adopts a flat ban on individual negotiations through a no-paid-prioritization rule.
112
  And rather 
than limiting the new rules to those proposed in the Notice, the Order also adopts a never-before-
proposed no-throttling rule
113
and a wholly new no-unreasonable-interference-or-unreasonable-
disadvantage standard for Internet conduct.
114
Given this new legal justification, it’s no wonder that the FCC now feels compelled to cite nine 
new sources of legal authority for adopting the Order, invoking sections 201 and 202 of Title II along 
with sections 3, 10, 301, 332, 403, 501, and 503 of the Communications Act.
115
  Nor that the final rules 
                                                     
106
Notice, 29 FCC Rcd at 5625, para. 183 (“Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i)–(j), 303 
and 316 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, 
as amended, 47 U.S.C. §§ 151, 152, 154(i)–(j), 303, 316, 1302, that this Notice of Proposed Rulemaking IS 
ADOPTED.”).  Title II of the Act consists of sections 201 through 276, 47 U.S.C. §§ 201–276.
107
Compare 47 C.F.R. Part 8 (“Authority: 47 U.S.C. secs. 151, 152, 153, 154, 201, 218, 230, 251, 254, 256, 257, 
301, 303, 304, 307, 309, 316, 332, 403, 503, 522, 536, 548, 1302.”), with Notice, 29 FCC Rcd at 5626 (“Part 8 of 
Title 47 of the Code of Federal Regulations is amended to read as follows: . . . AUTHORITY: 47 U.S.C. §§ 151, 
152, 154(i)–(j), 303, 316, 1302.”).  Note that section 706 of the Telecommunications Act has been unofficially 
codified at 47 U.S.C. § 1302.
108
See Notice, 29 FCC Rcd at 5564, n.11; 5569, nn.42–48; 5571, nn.58–59; 5574, n.88; 5576, nn.97–100; 5577, 
n.101; 5579, nn. 111, 114; 5580, n.122; 5581, n.125; 5585, n.153; 5593, n.200; 5594, nn.206–12; 5595, n.213; 5596, 
nn.219, 221, 223; 5599, n.231; 5600, nn.236–37; 5601, nn.238–39, 241–42; 5602, nn.244–47; 5608, n.270; 5610, 
n.282; 5612, nn.291–94; 5613, n.296; 5615, n.309.
109
Notice, 29 FCC Rcd at 5626–27 (Appendix A: Proposed Rules).
110
Although the general Internet conduct rule does claim that it should not be read to constitute common carriage 
per se, the Order concedes that the rule “represents our interpretation of these 201 and 202 obligations in the open 
Internet context,” Order at para. 295—which is to say that it too is premised on reclassification.
111
Order at paras. 113–15.
112
Order at para. 125.
113
Order at para. 119.
114
Order at paras. 133, 136.
115
Order at para. 583.
19
purport to rely on 20 sections of the Communications Act that were not included in the original proposal, 
including several sections not discussed even once in the Notice.
116
In sum, the Notice proposed “the terms . . . of the proposed rule” and a “reference to the legal 
authority under which the rule is proposed.”
117
  But the Order adopts something completely different.  
That’s not what the Administrative Procedure Act envisions.
B.
None of this is to say that the Commission had to adopt the exact same rules under the precise 
rationale proposed in the Notice.  Of course, the adopted rules may be the “logical outgrowth” of the 
original proposal.
118
  But the Order’s decision to reclassify, to forbear, and to adopt rules grounded in 
Title II is a reversal of the proposals and tentative conclusions in the Notice, not a natural evolution.
The standard is whether all interested parties “should have anticipated” the final rule.
119
  The 
question “is one of fair notice”
120
: whether “persons are sufficiently alerted to likely alternatives so that 
they know whether their interests are at stake.”
121
  In other words, “general notice that a new standard will 
be adopted affords the parties scant opportunity for comment”—the “agency’s obligation is more 
demanding.”
122
Although the agency dutifully recites that standard,
123
at points it seems to apply a different one: 
something akin to asking whether parties could have anticipated the final rule.
124
  In essence, the Order
suggests an agency may adopt any rule unless it was impossible for anyone to anticipate that rule.  No 
court, to my knowledge, has ever endorsed such a standard.  And it’s easy to see why:  Such a standard 
would give an agency a tremendous incentive to outline its proposals in broad and vague terms to expand 
                                                     
116
Compare Notice, 29 FCC Rcd at 5626 (“Part 8 of Title 47 of the Code of Federal Regulations is amended to read 
as follows: . . . AUTHORITY: 47 U.S.C. §§ 151, 152, 154(i)–(j), 303, 316, 1302”), with Order at Appendix A (“The 
authority citation for part 8 is amended to read as follows: AUTHORITY: 47 U.S.C. §§ 151, 152, 153, 154, 201, 
202, 208, 218, 230, 251, 254, 256, 257, 301, 303, 304, 307, 309, 316, 332, 403, 503, 522, 536, 548, 1302.”).  The 
Notice made no mention whatsoever of sections 218, 251, 256, 257, 301, 304, 307, 403, 503, 522, and 536.
117
5 U.S.C. § 553(b)(2)–(3).
118
See, e.g., Crawford v. FCC, 417 F.3d 1289, 1295 (D.C. Cir. 2005).
119
Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004) (per curiam) 
(emphasis added) (internal quotation marks omitted); see also Council Tree Communications v. FCC, 619 F.3d 235, 
256 (3d Cir. 2010) (“[E]ven if some sophisticated observers would have seen the connection between the stricter 
compliance that had been noticed and the lower standards eventually announced, the proper question under the APA 
was whether the agency had provided notice to all ‘interested parties.’ . . . [T]he inferential notice purportedly 
provided . . . did not satisfy that standard.”  (quoting Wagner Electric Corp. v. Volpe, 466 F.2d 1013, 1019 (3d Cir. 
1972))).
120
Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007).
121
Time Warner Cable Inc. v. FCC, 729 F.3d 137, 170 (2d Cir. 2013) (internal quotation marks omitted).
122
Horsehead Resource Development Co., Inc. v. Browner, 16 F.3d 1246, 1268 (D.C. Cir. 1994).
123
Order at para. 539.
124
Compare, e.g., Order at para. 37 (“[O]ur forbearance approach results in over 700 codified rules being 
inapplicable . . . .”), with Order at para. 540 (claiming notice for such a result based on two sentences seeking 
general comment “on the extent to which forbearance from certain provisions of the Act or our rules would be 
justified”); see also Order at note 1671 (arguing that the FCC used “slightly different wording to the same effect” 
when it had previously endorsed a “could have anticipated” standard).
20
the realm of possibility.  Notices of proposed rulemaking could be nothing more than a single sentence:  
“We propose to regulate XYZ.”
Here’s an illustration of how those standards differ.  Say you and a friend are in Kansas.  The two 
of you have been talking every day for months about how wonderful it would be to visit San Francisco.  
One day, your friend brings up San Francisco yet again and says “Say, we’ve talked enough about this.  I 
propose we go on a cross-country drive.  Do you want to come?”  Eager to go west, you say yes.  You get 
in the car, fall asleep for a few hours, and wake up to find that . . . you’re heading east toward Boston!  
“Wait,” you protest, “I thought we were heading to San Francisco!”  Your friend replies: “Well, I 
proposed merely that we go on a cross-country drive.  I know we’d been talking every day for months 
about San Francisco, but you could have realized that I had Boston in mind.”  Deflated, you retort: “But 
should I have?  Shouldn’t you have told me we were heading to Boston and given me a chance to say yes 
or no before we hit the road?”
Here’s another one.  Say a government agency seeks competitive bids to build a suspension 
bridge.  The request for proposals details how the suspension bridge should be built but reserves the right 
to build another type of bridge instead.  Could a bidder anticipate that the government will hire someone 
to build an arch bridge through this RFP?  Perhaps.  But what should bidders expect?  That if the agency 
decides not to build the proposed suspension bridge, it will issue a new RFP.  Otherwise, a serious bidder 
would be obligated to draw plans and submit a proposal for each and every type of bridge feasible—thus 
reducing the quality of each response since every bidder would need to spread its resources anticipating 
possibilities rather than focusing on the proposal at hand.
Indeed, courts have repeatedly held that “if the final rule deviates too sharply from the proposal, 
affected parties will be deprived of notice and an opportunity to respond to the proposal.”
125
  And so when 
a notice of proposed rulemaking has “clearly stated that the FCC intended to adopt [a proposed rule]” and 
“even recited the rationale for the proposed rule,” the courts have reversed the Commission when “the 
final rule took a contrary position.”
126
The Order’s primary retort appears to be that—alongside its section 706-based proposals and 
tentative conclusions—the Notice sought comment on alternatives.
127
  As the Order puts it, the Notice
“proposed to rely on section 706 of the Telecommunications Act of 1996, but at the same time stated that 
it would ‘seriously consider the use of Title II of the Communications Act as the basis for legal authority.’  
The [Notice] sought comment on the benefits of both section 706 and Title II, and emphasized its 
recognition that ‘both section 706 and Title II are viable solutions.’”
128
It’s true that the Notice sought comment on reclassification.  Here is that entire discussion:
Title II—Revisiting the Classification of Broadband Internet Access Service.  In a series 
of decisions beginning in 2002, the Commission has classified broadband Internet access 
                                                     
125
Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983).
126
National Black Media Coalition v. FCC, 791 F.2d 1016, 1022 (2d. Cir. 1986).
127
As the Order points out, almost every section of the Notice included a generic paragraph seeking comment on 
alternatives.  For example, the Order points to paragraph 96 of the Notice, which spends six sentences discussing 
possible alternatives for how to define a no-blocking rule and then one sentence asking commenters to “address the 
legal bases and theories, including Title II, that the Commission could rely on for such a no-blocking rule, and how 
different sources of authority might lead to different formulations of the no-blocking rule.”  Notice, 29 FCC Rcd at 
5595–96, para. 96 (cited by Order at note 1100).  Such back-of-the-hand mentions are hardly sufficient to apprise 
commenters on the hows, the whats, and the whys of reclassification, and so I focus on the Notice’s most fulsome 
discussion instead.
128
Order at para. 327 (quoting Notice, 29 FCC Rcd at 5563, para. 4) (footnotes omitted).
21
service offered over cable modem, DSL and other wireline facilities, wireless facilities, 
and power lines as an information service, which is not subject to Title II and cannot be 
regulated as common carrier service.  In 2010, following the D.C. Circuit’s Comcast
decision, the Commission issued a Notice of Inquiry (2010 NOI) that, among other 
things, asked whether the Commission should revisit these decisions and classify a 
telecommunications component service of wired broadband Internet access service as a 
“telecommunications service.”  The Commission also asked whether it should similarly 
alter its approach to wireless broadband Internet access service, noting that section 332 
requires that wireless services that meet the definition of “commercial mobile service” be 
regulated as common carriers under Title II.  In response, the Commission received 
substantial comments on these issues.  We now seek further and updated comment on 
whether the Commission should revisit its prior classification decisions and apply Title II 
to broadband Internet access service (or components thereof).  How would such a 
reclassification approach serve our goal to protect and promote Internet openness?  What 
would be the legal bases and theories for particular open Internet rules adopted pursuant 
to such an approach?  Would reclassification and applying Title II for the purpose of 
protecting and promoting Internet openness impact the Commission’s overall policy 
goals and, if so, how?
What factors should the Commission keep in mind as it considers whether to revisit its 
prior decisions?  Have there been changes to the broadband marketplace that should lead 
us to reconsider our prior classification decisions?  To what extent is any 
telecommunications component of that service integrated with applications and other 
offerings, such that they are “inextricably intertwined” with the underlying connectivity 
service?  Is broadband Internet access service (or any telecommunications component 
thereof) held out “for a fee directly to the public, or to such classes of users as to be 
effectively available directly to the public?”  If not, should the Commission compel the 
offering of such functionality on a common carrier basis even if not offered as such?  For 
mobile broadband Internet access service, does that service fit within the definition of 
“commercial mobile service”?  We also note that on May 14, 2014, Representative Henry 
Waxman, Ranking Member of the Committee on Energy and Commerce of the U.S. 
House of Representatives, sent a letter to Chairman Wheeler proposing an approach to 
protecting the open Internet whereby the Commission would proceed under section 706 
but use Title II as a “backstop authority.”  We seek comment on the viability of that 
approach.
129
If these two paragraphs, tucked into an 85-page document, are sufficient notice to discard the 
regulatory framework for Internet access services that the Commission has relied on for almost two 
decades—a framework the FCC has affirmed time
130
and again
131
and again
132
and again
133
and again
134
—
                                                     
129
Notice, 29 FCC Rcd at 5613–14, paras. 149–50 (footnotes omitted).
130
See Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd 
11501 (1998) (Stevens Report) (classifying Internet access service).
131
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, 
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).
132
See Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket 
Nos. 02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed 
(continued…)
22
and the myriad of related precedents and agency rules, then the FCC (and likely every federal agency) has 
been doing notice-and-comment rulemaking wrong for decades.  I am not aware of, and the Order does 
not cite, one single notice of proposed rulemaking that the Commission has issued that is so abbreviated.  
Nor one that would reverse so much precedent with so little analysis.  Nor one whose consequences 
would be so far reaching (and collateral impacts so many) with so little discussion.  Just look at the 
Notice’s detailed discussion of the FCC’s section 706 authority to see how we normally tee up a 
proposal.
135
  Or look at the 83-paragraph notice of proposed rulemaking that preceded the classification of 
wireline broadband Internet access service as an information service to see how we normally tee up a new 
regulatory framework.
136
  The contrast could not be starker.
137
The failure of the Notice to properly frame the Title II proposal matters.  Indeed, “[a]n agency 
adopting final rules that differ from its proposed rules is required to renotice when the changes are so 
major that the original notice did not adequately frame the subjects for discussion.  The purpose of the 
new notice is to allow interested parties a fair opportunity to comment upon the final rules in their altered 
form.”
138
And given the Notice’s framing, I simply cannot understand how any commenter could have 
anticipated—let alone should have anticipated—the 128 paragraphs of the Order that explain the 
Commission’s rationale for reclassification and the ramifications of that decision.
139
  Search the Notice’s
two paragraphs as I might, I cannot ferret out any discussion of the three factual changes that have led to 
the Commission’s determination today—namely, “(1) consumer conduct, . . . (2) broadband providers’ 
marketing and pricing strategies . . . and (3) the technical characteristics of broadband Internet access 
service.”
140
  Nor can I find any discussion of how Domain Name System (DNS) service, caching, or any 
other feature of broadband Internet access service falls into the telecommunications system management 
exception to the definition of information service (or even any discussion of the meaning of that 
exception).
141
  Nor can I find any discussion of the benefits reclassification would have for broadband 
(Continued from previous page)                                                           
Rulemaking, 20 FCC Rcd 14853 (2005) (Wireline Broadband Internet Access Services Order) (classifying 
broadband Internet access service over wireline facilities).
133
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, WC Docket No. 06-10, Memorandum Opinion 
and Order, 21 FCC Rcd 13281 (2006) (classifying broadband Internet access service over power lines).
134
See Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT 
Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901 (2007) (Wireless Broadband Internet Access Order) 
(classifying broadband Internet access service over wireless networks).
135
Notice, 29 FCC Rcd at 5610–12, paras. 143–47.
136
Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Universal Service 
Obligations of Broadband Providers, CC Docket Nos. 02-33, 95-20, 98-10, Notice of Proposed Rulemaking, 17 
FCC Rcd 3019 (2002).
137
Accord Council Tree Communications v. FCC, 619 F.3d 235, 254 (3d Cir. 2010) (holding that the FCC failed to 
provide APA notice for a rule after “find[ing] it instructive that the FCC had previously solicited broader comment 
on” the point covered by the rule “and in much more specific terms than it did here” and observing that “[t]he 
contrast could not be more stark”).
138
Connecticut Light & Power Co. v. Nuclear Regulatory Commission, 673 F.2d 525, 533 (D.C. Cir. 1982).
139
Order at paras. 306–433.  Note that I exclude from this discussion any mention of forbearance, which I address 
below.
140
Order at para. 330; see also Order at paras. 346–54.
141
Order at paras. 366–75.
23
investment.
142
  Nor can I find any discussion of what reclassification means for state or local regulation of 
broadband services.
143
  Nor can I find any mention that the FCC’s past “predictive judgments . . .
anticipating vibrant intermodal competition” were wrong.
144
To get to the point:  Could someone reading the Notice have anticipated the FCC might reject its 
past proposals and tentative conclusions and instead pursue reclassification?  Perhaps.  Anything is 
possible.  But should the public have anticipated the FCC would move forward with reclassification 
without issuing a Further Notice of Proposed Rulemaking?  Surely not.  The Notice itself left just too 
many questions unanswered—and too many questions unasked for that matter.
To be clear, the deficiencies in the Notice were not the product of incompetence.  Rather, they 
reflect the fact that the agency was headed in a different direction until political pressure was applied to 
the Commission last November.  Specifically, President Obama’s endorsement of Title II forced a change 
in the FCC’s approach.
145
  Indeed, the agency was publicly considering a so-called “hybrid” approach on 
the day of the President’s announcement
146
and was reportedly pursuing such an approach even in the 
days after that announcement
147
—only to succumb to executive branch entreaties when pen was put to
paper.
148
                                                     
142
Order at paras. 409–25.
143
Order at paras. 430–33.
144
Order at para. 330.  To be sure, that last omission is understandable.  The FCC could not have mentioned that 
point until just 22 days before this vote, when the agency decided to hike the standard for what qualifies as 
broadband Internet access service from 4 Mbps to 25 Mbps, excluding in one fell swoop all wireless and most 
wireline operators from the market.  Inquiry Concerning the Deployment of Advanced Telecommunications 
Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such 
Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as Amended by the Broadband Data 
Improvement Act, GN Docket No. 14-126, 2015 Broadband Progress Report and Notice of Inquiry on Immediate 
Action to Accelerate Deployment, FCC 15-10 (rel. Feb. 4, 2015) (2015 Broadband Progress Report), available at 
http://go.usa.gov/3ay5d.  Indeed, the agency still has not published that decision in the Federal Register and the 
public still has more than a month before the comment period closes on the accompanying notice of inquiry.  Id.
(establishing a deadline for initial comments of March 6, 2015, and a deadline for replies for April 6, 2015).
145
Gautham Nagesh and Brody Mullins, Net Neutrality: How White House Thwarted FCC Chief, The Wall Street 
Journal (Feb. 4, 2015) (“In November, the White House’s top economic adviser dropped by the Federal 
Communications Commission with a heads-up for the agency’s chairman, Tom Wheeler.  President Barack Obama 
was ready to unveil his vision for regulating high-speed Internet traffic. The specifics came four days later in an 
announcement that blindsided officials at the FCC.”), available at http://on.wsj.com/16FXTcH.  It strains credulity 
to think otherwise; had the agency been on track to adopt the President’s plan all along, there would have been no 
need for him to “la[y] out a plan to do [Title II]” and (critically) “ask[] the FCC to implement it.”  The White House, 
Net Neutrality: President Obama’s Plan for a Free and Open Internet, 
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014).
146
FCC Chairman Tom Wheeler’s Statement on President Barack Obama’s Statement Regarding Open Internet 
(Nov. 10, 2014), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-330414A1.pdf.
147
See Brian Fung, How Obama’s net neutrality comments undid weeks of FCC work, Washington Post (Nov. 14, 
2014) (“Three people who met with [FCC Chairman Tom] Wheeler in the days after the president’s statement say he 
was ‘adamant’ that all options remain on the table—but they also walked away with the impression that the 
chairman is still not ready to give up on the agency’s hybrid proposal.  ‘He certainly referred to the hybrid 
glowingly,’ said one official, who met with Wheeler late this week and spoke on condition of anonymity to speak 
freely about the gathering.  ‘If we had to bet where he’s heading, it’s still the hybrid.’”), available at
http://wapo.st/1alNQed.
148
Indeed, the agency did not think it could prohibit paid prioritization—the bête noire of net neutrality 
proponents—under Title II before the President’s announcement.  As the Chairman testified to Congress less than a 
(continued…)
24
But the Commission cannot credibly claim APA notice from the White House’s November 10 
YouTube announcement of “President Obama’s Plan for a Free and Open Internet.”
149
  Although that 
announcement did (unlike the Notice) propose reclassification under Title II
150
and did (again unlike the 
Notice) propose “bright-line” no-blocking, no-throttling, and no-paid-prioritization rules,
151
I can find no 
record of the FCC voting on that proposal, publishing it in the Federal Register, nor soliciting the public 
for comment.
Nor, for that matter, can the Order point to Chairman Wheeler’s February 4 editorial on 
Wired.com explaining “This Is How We Will Ensure Net Neutrality.”
152
  Although that announcement 
did (unlike the Notice) propose reclassification under Title II
153
and did (again unlike the Notice) propose 
“bright-line” no-blocking, no-throttling, and no-paid-prioritization rules,
154
I again can find no record of 
the FCC voting on that proposal, publishing it in the Federal Register, nor soliciting the public for 
comment.
(Continued from previous page)                                                           
week after the Commission adopted the Notice, “[t]here is nothing in Title II that prohibits paid prioritization.”  
Hearing before the Subcommittee on Communications and Technology of the United States House of 
Representatives Committee on Energy and Commerce, “Oversight of the Federal Communications Commission,” 
Video at 44:56 (May 20, 2014), available at http://go.usa.gov/3aUmY.  And he was right:  Title II makes clear that 
“different charges may be made for the different classes of communications.”  Communications Act § 201(b). And 
there’s more than a century of precedent that common carriers may charge different rates for different services.  See, 
e.g., Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local 
Public Safety Agency Communication Requirements Through the Year 2010; Establishment of Rules and 
Requirements for Priority Access Service, WT Docket No. 96-86, Second Report and Order, 15 FCC Rcd 16720 
(2000) (finding Priority Access Service, a wireless priority service for both governmental and non-government 
public safety personnel, “prima facie lawful” under section 202); Access Charge Reform; Price Cap Performance 
Review for Local Exchange Carriers; Interexchange Carrier Purchases Of Switched Access Services Offered By 
Competitive Local Exchange Carriers; Petition of US West Communications, Inc. for Forbearance from Regulation 
as a Dominant Carrier in the Phoenix, Arizona MSA, CC Docket Nos. 96-262, 94-1, 98-157, CCB/CPD File No. 98-
63, 14 FCC Rcd 14221 (1999) (granting dominant carriers pricing flexibility or special access services, allowing 
both higher charges for faster connections as well as individualized pricing and customers discounts); GTE 
Telephone Operating Companies Tariff F.C.C. No. 1 et al., Transmittal Nos. 900, 102, 519, 621, 9 FCC Rcd 5758 
(Common Carrier Bur. 1994) (approving tariffs for Government Emergency Telephone Service(GETS), a prioritized 
telephone service, and additional charges therefor); see also, e.g., Interstate Commerce Commission v. Baltimore & 
O.R. Co., 145 U.S. 263, 283–84 (1892) (noting that common carriers are “only bound to give the same terms to all 
persons alike under the same conditions and circumstances” and that “any fact which produces an inequality of 
condition and a change of circumstances justifies an inequality of charge”).
149
The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet, 
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014).
150
Id. (“I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications 
Act . . . .”).
151
Id. (“The rules I am asking for are simple, common-sense steps that reflect the Internet you and I use every day, 
and that some ISPs already observe.  These bright-line rules include: No blocking. . . . No throttling. . . . No paid 
prioritization.”).
152
Tom Wheeler, FCC Chairman Tom Wheeler: This Is How We Will Ensure Net Neutrality, Wired, 
http://wrd.cm/1EGifR4 (Feb. 4, 2015) (“[T]he time to settle the Net Neutrality question has arrived.  This week, I 
will circulate to the members of the Federal Communications Commission (FCC) proposed new rules to preserve 
the internet as an open platform for innovation and free expression.”).
153
Id. (“I am proposing that the FCC use its Title II authority to implement and enforce open internet protections.”).
154
Id. (“These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful 
content and services.”).
25
Some of us at the FCC have seen this movie before.  About one month before concluding the 
FCC’s 2006 media ownership proceeding, then-FCC Chairman Kevin Martin published an editorial in 
The New York Times unveiling his own proposal for revising the newspaper/broadcast cross-ownership 
rule.  In its Prometheus decision, the Third Circuit explained that the editorial “did not satisfy the APA’s 
notice requirements.  The proposal was not published in the Federal Register, the views expressed were 
those of one person and not the Commission, and the Commission voted days after substantive responses 
were filed, allowing little opportunity for meaningful consideration of the responses before the final rule 
was adopted.”
155
  It then went on:  “Although it was clear from [several Commission notices], taken 
together, that the Commission was planning to overhaul its approach to newspaper/broadcast cross-
ownership, they did not contain enough information about what it was planning to do, or the options it 
was considering, to provide the public with a meaningful opportunity to comment.  Until Chairman 
Martin’s November 2007 personal Op-Ed/Press Release, the public did not know even what options he 
was considering, let alone the Commission.”
156
  If anything, Chairman Martin provided more notice than 
has been offered in this proceeding.  There, he made public the exact text of his proposed 
newspaper/broadcast cross-ownership rule.  Here, the details of the Chairman’s complex proposal have 
remained shrouded in mystery.
Indeed, it was widely reported that the Commission strongly considered seeking additional 
comment because of the notice problems.
157
  In an email sent to the press, a “commission spokeswoman” 
described a blog post that Chairman Wheeler published just hours after President Obama called for 
reclassification and said:  “The Chairman said in his statement last Monday that there is more work to do 
and substantive legal questions to answer.”  She then added that “[t]he Commission is considering the 
best way to invite additional comments on those questions.”
158
  But ultimately, after even more political 
pressure was put on the agency to move forward without seeking comment,
159
the agency decided to plow 
ahead.  
So here we are.  We are moving forward with an Order the contours of which no one could have 
or should have anticipated, considering how drastically different the Notice’s proposals were.  The FCC 
                                                     
155
Prometheus Radio Project v. FCC, 652 F.3d 431, 450 (3d Cir. 2011).
156
Id. at 451.
157
See, e.g., Jesse Jackson Urges Wheeler Against Title II, Communications Daily (Nov. 19, 2014) (“Several 
involved in the net neutrality debate have said in recent days that they expect the agency, in light of Wheeler’s 
statement last week, to seek additional comments in the proceeding.”); Lydia Beyoud, Obama’s Call for Title II 
Reclassification Forces Rulemaking Delay, Bloomberg BNA (Nov. 12, 2014) (“Several sources said that [figuring 
out a way forward] could involve an additional public comment period, whether from a further notice of proposed 
rulemaking or through a public notice at the bureau level.”), available at http://bit.ly/17zHLcC; Laura Ryan, 
Brendan Sasso and Dustin Volz, What’s Next in the Never-Ending Net Neutrality Fight, National Journal (Nov. 11, 
2014) (“An FCC official said the chairman hasn’t decided yet whether he’ll need to issue a further notice of 
proposed rule-making before moving on to final rules.”), available at http://bit.ly/1AsB4EA; No December Vote:  
Obama Wants Title II; Wheeler Says There are Issues to Be Resolved, Communications Daily (Nov. 12, 2014) 
(“[S]ome industry attorneys said the agency may seek even more comments.”); id. (“Some industry attorneys said 
the commission may open up . . . [the] proceeding . . . to another round of comments to bolster the record for 
classification.”).
158
Jesse Jackson Urges Wheeler Against Title II, Communications Daily (Nov. 19, 2014).
159
See, e.g., Mario Trujillo, Dems to FCC: ‘Time for action’ on Web reclassification, The Hill (Dec. 18, 2014), 
available at http://bit.ly/1GwPOTF; see also No December Vote:  Obama Wants Title II; Wheeler Says There are 
Issues to Be Resolved, Communications Daily (Nov. 12, 2014) (“Heartened by Obama’s statement, Title II 
advocates pressed the agency to quickly move ahead with approving net neutrality rules involving 
reclassification.”).
26
proposed to the public a cross-country trip to San Francisco.  Only after the car was on the road did the 
public realize the agency was taking it to Boston.
C.
The failure of notice extends beyond the rules and rationale to discrete decisions littered 
throughout the Order.  Rather than cataloging each and every failure, I’ll give three examples to illustrate 
just how far afield the Order has strayed from the Notice: (1) its application of forbearance to broadband 
Internet access service; (2) the treatment of Internet traffic exchange (or IP interconnection); and (3) the 
new definition of the statutory term “the public switched network.”
1.  Forbearance Applied to Broadband Internet Access Service.—Consider the application of 
forbearance to broadband Internet access service.  To be sure, the Notice included three paragraphs 
seeking comment on “the extent to which forbearance from certain provisions of the Act or our rules 
would be justified in order to strike the right balance between minimizing the regulatory burden on 
providers and ensuring that the public interest is served,”
160
asked whether forbearance should differ for 
mobile broadband services,
161
and identified six sections of Title II that might be “excluded from 
forbearance.”
162
  But as the courts have told us before, even if it was “clear from those sources, taken 
together, that the Commission was” considering forbearance, “they did not contain enough information 
about what it was planning to do, or the options it was considering, to provide the public with a 
meaningful opportunity to comment.”
163
For one, the Order’s forbearance decisions are expansive, encompassing at least 49 separate 
decisions.  The Order decides, for example, that sections 201 (in part), 202 (in part), 206, 207, 208, 209, 
214(e), 216, 217, 222, 224 (including subsection (e)), 225 (but not subparagraph (d)(3)(B)), 229, 230, 
251(a)(2), 254 (but not the first sentence of subsection (d) nor subsections (g) or (k)), 255, 257, 276, and 
309(b) & (d)(1) of the Communications Act will apply to broadband Internet access service.
164
  That’s 20 
separate sections that will apply in whole or part, 14 more than mentioned in the Notice.  The Order then 
goes on to temporarily forbear, in whole or part, from applying 15 sections
165
and to permanently forbear, 
in whole or part, from 14 more.
166
  And that’s just the provisions of the Act!  The Order also forbears 
from some of the Commission’s rules,
167
applies others,
168
forbears from conducting certain further 
                                                     
160
Notice, 29 FCC Rcd at 5615–16, para. 153.
161
Notice, 29 FCC Rcd at 5616, para. 155.
162
Notice, 29 FCC Rcd at 5616, para. 154.
163
Prometheus Radio Project v. FCC, 652 F.3d 431, 451 (3d Cir. 2011).
164
See Order at paras. 441 (sections 201 and 202); 453 (sections 206, 207, 208, 209, 216, and 217); 463 (section 
222); 469 (section 225); 472 (sections 251(a)(2) and 255); 478 (section 224); 481 (section 224(e)); 486 (sections 
214(e) and 254); 521 (section 276); 531 (section 257); 532 (section 230(c)); 533 (section 229); 535–36 (sections 
309(b) and (d)(1)).
165
See Order at paras. 470 (section 225(d)(3)(B)); 488 (section 254(d)’s first sentence); 497 (section 203); 505 
(section 204); 506 (section 205); 508 (sections 211, 213, 215, 218, 219, 220); 509–12 (section 214 except for 
subsection (e)); 513 (section 251 except for subsection (a)(2), section 256); 515 (section 258).  The Order makes 
clear that forbearance from each of these provisions is only appropriate “at this time,” “for now,” or “on this 
record.”
166
See Order at paras. 492 (sections 254(g), (k)); 507 (section 212); 517–18 (sections 271, 272, 273, 274, 275); 519 
(sections 221, 259); 520 (sections 226, 227(c)(3), 227(e), 228, 260).
167
See Order at para. 522 (forbearing from applying the Commission’s truth-in-billing rules).
27
rulemakings,
169
and commits to commencing still others.
170
  To suggest that any party could have or 
should have anticipated the byzantine dictates that the Order takes 103 paragraphs over 62 pages to 
explain,
171
based on three high-level paragraphs in the Notice, is simply implausible.
For another, no party could have anticipated the Commission’s rationale for forbearing from 
some provisions but not others based on the Notice.
172
  The Notice gave no rationale for when forbearance 
might be appropriate under these particular circumstances.  Instead, it asked commenters to provide a 
“justification for the forbearance” and told commenters to “define the relevant geographic and product 
markets in which the services or providers should receive forbearance.”
173
  In other words, this isn’t even 
a case where the agency has “simply propose[d] a rule and state[d] that it might change that rule without 
alerting any of the affected parties to the scope of the contemplated change, or its potential impact and 
rationale, or any other alternatives under consideration.”
174
  Here, the Notice proposed nothing at all and 
asked commenters for forbearance proposals—and the Order now adopts some but not all of those 
proposals using a rationale never before explained.
175
  The “‘logical outgrowth’ doctrine does not extend 
to a final rule that finds no roots in the agency’s proposal because ‘[s]omething is not a logical outgrowth 
of nothing.’”
176
And to put it lightly, this isn’t how forbearance usually works.  When the Commission has 
previously forborne as part of a rulemaking, the underlying notice has sought specific comment on 
whether the FCC should forbear from applying a particular statutory provision to a particular class of 
carriers and has specified why such forbearance may be appropriate.
177
  Indeed, when the FCC first 
applied forbearance to commercial mobile services, it commenced that proceeding with a detailed notice 
of proposed rulemaking that examined its new forbearance authority under section 332(c)(1)(A).  It 
(Continued from previous page)                                                           
168
See Order at paras. 472–74 (declining to forbear from the Commission’s rules implementing section 255 except 
“insofar as there is any conflict” with “sections 716–718 and our implementing rules”).
169
See Order at para. 451 (forbearing from applying sections 201 and 202 to the extent they would enable the 
Commission to “adopt[] new ex ante rate regulation . . . in the future”).
170
See Order at para. 526 (committing “to commence in the near term a separate proceeding to revisit the data 
roaming obligations of MBIAS providers in light of our reclassification decisions today”).
171
Order at paras. 434–536.
172
To be fair, the Order really doesn’t make the rationale clearer for many of its decisions.  At most, it claims in a 
footnote that the rationale for forbearance is to “protect and promote Internet openness.”  Order at note 1673.  But 
like beauty or a public interest standard, what that means is in the eye of the beholder.  If notice and comment is to 
mean anything, commenters must be able to wrestle with a concrete rationale for action, not one so vague that no 
one could anticipate how it might be applied in any particular circumstance.
173
Notice, 29 FCC Rcd at 5616, para. 154.
174
National Black Media Coalition v. FCC, 791 F.2d 1016, 1023 (2d Cir. 1986).
175
For more on this novel rationale, see infra Section III.D.
176
See Environmental Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (alteration in original) (quoting 
Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994)).
177
See, e.g., Lifeline and Link Up Reform and Modernization et al., WC Docket Nos. 11-42, 03-109, CC Docket No. 
96-45, Notice of Proposed Rulemaking, 26 FCC Rcd 2770, 2862–64, paras. 303–09 (2011) (seeking comment on 
forbearing from the Act’s facilities requirement for resellers that want to participate in the FCC’s Lifeline program 
since that requirement appeared only relevant to participants in the FCC’s high-cost program).
28
explained how the Commission’s view of competition affected its forbearance analysis.  And it offered 
rationales for forbearing or not forbearing from each statutory provision.
178
The standard for petitioners seeking forbearance is equally high:  Petitions must identify “[e]ach 
statutory provision, rule, or requirement for which forbearance is sought” and “[e]ach geographic 
location, zone, or area from which forbearance is sought,” must “contain facts and argument which, if true
and persuasive, are sufficient to meet each of the statutory criteria,” and must offer a “full statement of the 
petitioner’s prima facie case for relief.”
179
  The FCC itself never seriously attempted to meet these 
standards in the Notice, thus “present[ing] interested parties with a moving target, which frustrates their 
efforts to respond fully and early in the process.”
180
  Or as one party to this proceeding put it:  “In essence 
the Commission is asking the public to shadowbox with itself.”
181
2.  Internet Traffic Exchange (also Known as IP Interconnection).—The Notice discussed Internet 
traffic exchange in a single paragraph, tentatively concluding that the FCC should maintain the approach 
it had previously taken so that the Part 8 “Open Internet” rules would not apply “to the exchange of traffic 
between networks, whether peering, paid peering, content delivery network (CDN) connection, or any 
other form of inter-network transmission of data, as well as provider-owned facilities that are dedicated 
solely to such interconnection.”
182
  Today, the Order follows through on that tentative conclusion and 
concludes that application of the Part 8 rules to Internet traffic exchanged “is not warranted.”
183
But the Order then goes quite a bit further and adopts a “regulatory backstop prohibiting common 
carriers from engaging in unjust and unreasonable practices,”
184
subjecting Internet traffic exchange 
arrangements like those mentioned immediately above to “sections 201 and 202 on a case-by-case 
basis.”
185
  With this authority, the Commission can order an Internet service provider “to establish 
physical connections with other carriers, to establish through routes and charges applicable thereto . . . , 
and to establish and provide facilities and regulations for operating such through routes.”
186
  In other 
words, the Order classifies Internet traffic exchange as a Title II telecommunications service in 
everything but name.
The Notice proposed nothing like this.  As one commenter has observed:  “Nowhere did the 
Commission remotely indicate that it was considering classifying the distinct wholesale Internet traffic-
exchange services that ISPs provide to other network owners as Title II telecommunications services.”
187
  
                                                     
178
Implementation of Sections 3(n) and 332 of the Communications Act Regulatory Treatment of Mobile Services, 
GN Docket No. 93-252, Notice of Proposed Rulemaking, 8 FCC Rcd 7988, 7998–8001, paras. 49–68 (1993).
179
See 47 C.F.R. § 1.54(a), (b), (e).
180
Petition to Establish Procedural Requirements to Govern Proceedings for Forbearance under Section 10 of the 
Communications Act of 1934, as Amended, WC Docket No. 07-267, Report and Order, 24 FCC Rcd 9543, 9550, 
para. 12 (2009).
181
Letter from Earl Comstock et al., Counsel for Full Service Network and TruConnect, to Marlene H. Dortch, 
Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 10 (Feb. 3, 2015), available at http://go.usa.gov/3aUDR.
182
Notice, 29 FCC Rcd at 5582, para. 59.
183
Order at para. 195; see Order at para. 206 (“To be clear, we are not applying the open Internet rules we adopt 
today to Internet traffic exchange.”).
184
Order at para. 203.
185
Order at para. 205.
186
Communications Act § 201(a).
187
Letter from Matthew A. Brill, Counsel for the National Cable & Telecommunications Association, to Marlene H. 
Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 8 (Jan. 14, 2015), available at http://go.usa.gov/3aUDF; 
(continued…)
29
To add to the list, nowhere did the Notice propose applying sections 201 or 202 of the Act to Internet 
traffic exchange, and nowhere did the Notice suggest that the FCC might order physical connections, 
through routes, or appropriate charges in response to an IP interconnection dispute.
And when the Commission adopted the Notice, the Chairman himself disclaimed that Internet 
traffic exchange would be part of this proceeding: “Separate and apart from this connectivity is the 
question of interconnection (‘peering’) between the consumer’s network provider and the various 
networks that deliver to that ISP.  That is a different matter that is better addressed separately.  Today’s 
proposal is all about what happens on the broadband provider’s network and how the consumer’s 
connection to the Internet may not be interfered with or otherwise compromised.”
188
  When the Chairman 
of the Commission—the agency’s “chief executive officer”
189
—says that the proposal is “all about” 
something other than interconnection, why should parties have anticipated the opposite?
To claim, as the Order does, that these are just “regulatory consequences” flowing from other 
decisions in the Order is no defense.
190
  Not once in the Notice did the Commission suggest that Internet 
traffic exchange was a “component” of broadband Internet access service (as the Order now claims).
191
  If 
anything, the Notice disclaimed that notion, tentatively concluding to “retain” the definition of broadband 
Internet access service from the 2010 Open Internet Order “without modification.”
192
  As the Notice
stated, the rules based on that definition were “not intended ‘to affect existing arrangements for network 
interconnection’” and “did not apply beyond ‘the limits of a broadband provider’s control over the 
transmission of data to or from its broadband customers.’”
193
  The Notice then confirmed that any edge-
provider-facing service it recognized would “include the flow of Internet traffic on the broadband 
providers’ own network[s], and not how it gets to the broadband providers’ networks.”
194
Nor can the Order plausibly claim that “numerous submissions in the record . . . illustrate that the 
Commission . . . gave interested parties adequate notice” of the Title II-based backstop adopted here.
195
  
Although many parties discussed Internet traffic exchange during the comment period, they did so 
because the Notice asked if the FCC should change course and apply the Part 8 rules to IP 
interconnection, a proposal the Order squarely rejects today.  The submissions during the comment period 
say nothing about a Title II-based backstop—and even a cursory review of those filings shows that no 
party anticipated the approach the Order now adopts.
(Continued from previous page)                                                           
see id. (“[T]he portions of the NPRM seeking comment on the application of Title II are focused on the potential 
reclassification of retail broadband Internet access service as a telecommunications service.”).
188
Notice, 29 FCC Rcd at 5647 (Statement of Chairman Tom Wheeler).
189
Communications Act § 5(a).
190
Order at para. 206 (“[C]ertain regulatory consequences flow from the Commission’s classification of BIAS, 
including the traffic exchange component, as falling within the ‘telecommunications services’ definition in the 
Act.”).
191
See Order at note 521 (“Internet traffic exchange is a component of broadband Internet access service, both of 
which meets the definition of ‘telecommunications service.’”).
192
Notice, 29 FCC Rcd at 5581, para. 55.
193
Notice, 29 FCC Rcd at 5582, para. 59 (quoting Preserving the Open Internet; Broadband Industry Practices, GN 
Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC Rcd 17905, 17944, n.209 (2010); id. at 
17933, n.150).
194
Notice, 29 FCC Rcd at 5615, para. 151 (emphasis added).
195
Order at para. 206.
30
3.  Redefining the Public Switched Network.—Consider the Order’s new definition for the 
statutory term “the public switched network.”
196
  As background, section 332 of the Communications Act 
bars the FCC from treating any mobile service—such as mobile broadband Internet access service—as a 
telecommunications service unless that mobile service is interconnected with the public switched 
network.
197
  By redefining the term “the public switched network” to include services that use “public IP 
addresses,”
198
the Order argues that mobile broadband Internet access service now meets the definition 
for commercial mobile service and thus can be treated as a telecommunications service.
199
But the Notice never proposed a new definition for the public switched network.  Appendix A of 
the Notice did not include such a definition in the list of “proposed rules.”
200
  The text of the Notice did 
not seek comment on redefining the term.
201
  Indeed, the Notice never even mentioned the term “the 
public switched network” or the portion of the FCC rule that currently defines it.  Instead, the new 
definition came from Vonage Holdings Corp. in its comments two full months after the Commission 
adopted the Notice.
202
  Although the Commission can address comments in the record (and must respond 
to significant ones), an agency “must itself provide notice of a regulatory proposal.  Having failed to do 
so, it cannot bootstrap notice from a comment.”
203
The Order attempts to establish notice for this new definition by pointing to several other 
questions asked in the Notice,
204
such as “whether the Commission should revisit its prior classification 
decisions and apply Title II to broadband Internet access service”
205
and “the extent to which forbearance 
should apply, if the Commission were to classify mobile broadband Internet access service as a CMRS 
                                                     
196
Order at para. 391; see also Order at Appendix A (amending the definition of “public switched network” in rule 
20.3).
197
Communications Act § 332(c)(2) (“A person engaged in the provision of a service that is a private mobile service 
shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this Act . . . .”); 
Communications Act § 332(d)(3) (“[T]he term ‘private mobile service’ means any mobile service . . . that is not a 
commercial mobile service or the functional equivalent of a commercial mobile service . . . .”); Communications Act 
§ 332(d)(1) (“[T]he term ‘commercial mobile service’ means any mobile service . . . that is provided for profit and 
makes interconnected service available”); Communications Act § 332(d)(2) (“[T]he term ‘interconnected service’ 
means service that is interconnected with the public switched network . . . .”).
198
Order at para. 391.
199
Order at paras. 391–99, 402 (applying the new definition).
200
See Notice, 29 FCC Rcd at 5626–27 (Appendix A: Proposed Rules).
201
See Notice, 29 FCC Rcd at 5614, para. 150.
202
Vonage Comments at 43–44.
203
Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) (emphasis in original); 
see also Prometheus Radio Project v. FCC, 652 F.3d 431, 450 (3d Cir. 2011) (explaining that a proposal “not 
published in the Federal Register” expressing the views of a party but “not the Commission” does not satisfy the 
APA’s requirements).
204
See Order at para. 391.  The Order also points to various questions in the 2010 NOI—but even that item did not 
propose a new definition for the public switched network and used the term only once in an utterly unrelated 
context.  See 2010 NOI, 25 FCC Rcd at 7871, n.24.  What is more, I do not see how the Order can credibly point to 
the 2010 NOI for APA notice when it does not incorporate the record produced by that notice into this proceeding.  
See Order at page 1 (listing GN Docket No. 14-28 (the docket of the Notice) but not GN 10-127 (the docket of the 
2010 NOI)).  The Commission cannot have it both ways:  Either the 2010 NOI and its associated record is part of 
this proceeding (and the agency must address the full record against reclassification compiled therein) or it is not 
(and the agency cannot claim notice based on the 2010 NOI).
205
See Notice, 29 FCC Rcd at 5614, para. 149.
31
service subject to Title II.”
206
  But even the most specific question the Order points to—“does [mobile 
broadband Internet access] service fit within the definition of ‘commercial mobile service’?”
207
—falls 
short of putting the public on notice, since that question takes the definition of commercial mobile service 
(and hence public switched network) as a given.  As the courts have told us before, “[e]ven if this was the 
FCC’s intent, ‘an unexpressed intention cannot convert a final rule into a ‘logical outgrowth’ that the 
public should have anticipated.’”
208
Notably, the Order relies on these same passages as providing notice that the FCC would amend 
its rules to define mobile broadband Internet access service as the “functional equivalent of a commercial 
mobile service.”
209
  But, again, the Notice never proposed to amend this rule.  Appendix A of the Notice
did not include any change to this rule in the list of “proposed rules.”
210
  And the text of the Notice did not 
mention the term “functional equivalent” even once in the context of classifying mobile broadband 
Internet access service.
211
  Nor does the Notice anywhere mention the FCC rule that delineates the 
framework that the agency has long used to determine whether a service is a “functional equivalent” of a 
commercial mobile service.
212
  Yet today’s Order fashions and applies a novel and entirely different 
framework for doing so.
With the Notice silent on all of these points, the first filing to address “functional equivalency” 
came 32 days after the comment period had closed on the Notice, following a private meeting between 
FCC officials and CTIA.
213
  Just as the Commission cannot “bootstrap notice from a comment,”
214
it 
cannot use ex parte meetings to inform select members of the public of the Commission’s thinking and 
then claim notice from such meetings.
215
  The Administrative Procedure Act’s notice-and-comment 
provisions were intended to ensure a robust debate among all parties, not just those invited to participate.
What is more, the lack of notice for these rule amendments prejudices even those who are not 
party to this proceeding.  After all, the statutory bar on common carrier treatment applies to any mobile 
                                                     
206
See Notice, 29 FCC Rcd at 5616, para. 155.
207
See Notice, 29 FCC Rcd at 5614, para. 150.
208
Council Tree Communications v. FCC, 619 F.3d 235, 254 (3d Cir. 2010) (quoting Shell Oil Co. v. EPA, 950 F.2d 
741, 751 (D.C. Cir.1991)).
209
See Order at paras. 404, 406; see also Order at Appendix A (amending the definition of “commercial mobile 
radio service” to include mobile broadband Internet access service as a “functional equivalent” in rule 20.3).
210
See Notice, 29 FCC Rcd at 5626–27 (Appendix A: Proposed Rules).
211
See Notice, 29 FCC Rcd at 5614, para. 150.
212
See 47 C.F.R. § 20.9(a)(14).
213
Compare Letter from Scott Bergmann, Vice President – Regulatory Affairs, CTIA – The Wireless Association, to 
Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-137 (Oct. 17, 2014), available at 
http://go.usa.gov/3aUW9, with Wireline Competition Bureau Extends Deadline for Filing Reply Comments in the 
Open Internet and Framework for Broadband Internet Service Proceedings, GN Docket Nos. 14-28, 10-127, Public 
Notice, 29 FCC Rcd 9714 (Wireline Comp. Bur. 2014) (extending the close of the comment cycle to September 15, 
2014).
214
Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983).
215
The Order specifically relies on a conversation the FCC’s general counsel had with Public Knowledge for its 
contention that “Interested parties should have reasonably foreseen and in fact were aware that the Commission 
would analyze the functional equivalence of mobile broadband . . . .  Indeed, several parties have submitted 
comments on this question.”  Order at para. 406.
32
service not interconnected with the public switched network.
216
  Thus, before today, online innovators 
could be sure that mobile applications that did not interconnect with the public switched telephone 
network could not be regulated as telecommunications services.  That statutory safe harbor is now gone, 
even though the FCC never alerted those innovators that such a change could be coming.
D.
In sum, the Commission issued the Notice in May when it was heading in one direction (a section 
706 solution).  It shifted course in November after the President urged the agency to implement a very 
different plan (a reclassification regime).  Rather than following the proper procedure and issuing a 
further notice, the FCC charged ahead at the behest of activists who were suspicious of the Commission’s 
commitment to their cause and thus demanded that agency adopt rules without delay.  That is not what the 
Administrative Procedure Act demands nor what the American people deserve.
III.
The legal flaws with this Order are not limited to improper procedures; they extend into 
substance as well.
A.
One of the most basic of those flaws is the FCC’s determination that it can reclassify broadband 
Internet access service as a Title II telecommunications service.  Neither the text of the Communications 
Act nor our precedent condones such a decision.  And while the Order invokes changed circumstances to 
justify its reversal of course, the cited circumstances are neither changed nor otherwise adequate to justify 
applying Title II to broadband Internet access services.  In short, this decision is unlawful.
Start with the text of the Communications Act, and specifically the term “information service,” 
which was added through the Telecommunications Act of 1996.  Congress defined the term to mean:
[T]he offering of a capability for generating, acquiring, storing, transforming, processing, 
retrieving, utilizing, or making available information via telecommunications, and 
includes electronic publishing, but does not include any use of any such capability for the 
management, control, or operation of a telecommunications system or the management of 
a telecommunications service.
217
Internet access service comfortably fits within this framework.  Can an ISP’s subscriber generate, 
store, and make available information via telecommunications?  Of course—Internet users do that every 
day on Facebook.  Can such a subscriber acquire, retrieve, and process information via 
telecommunications?  Yes—just check out Google Translate.  Can such a subscriber transform and utilize 
information via telecommunications?  Absolutely—just try one of the Internet’s hundreds of video editing 
sites.  Would such a subscriber have these capabilities without Internet access service?  Obviously not.
Indeed, Congress itself called on the Commission to treat Internet access service as an 
unregulated, information service elsewhere in the Communications Act.
218
  Section 230 established the 
“policy of the United States . . . to preserve the vibrant and competitive free market that presently exists 
                                                     
216
Communications Act § 332(c)(2) (“A person engaged in the provision of a service that is a private mobile service 
shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this Act . . . .”).
217
Communications Act § 3(24).
218
Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2442 (2014) (“Thus, an agency interpretation that is 
inconsistent with the design and structure of the statute as a whole . . . does not merit deference.”  (internal quotation 
marks and brackets omitted)).
33
for the Internet and other interactive computer services, unfettered by Federal or State regulation.”
219
  
That section went on to define “interactive computer service” as “any information service . . . provider 
that provides or enables computer access by multiple users to a computer server, including specifically a 
service or system that provides access to the Internet.”
220
  In other words, Congress directly addressed the 
question of whether an ISP offered an information service—and answered with a resounding “Yes.”
So it’s no wonder that every time the Commission has previously confronted the question of 
whether an Internet access service is an information service, it has answered yes.
221
  And it’s no wonder 
that when the Supreme Court reviewed the FCC’s determination that broadband Internet access service 
over cable facilities was an information service, that decision went “unchallenged.”
222
1.  The Stevens Report.—The Commission’s first major decision in this regard—1998’s Stevens 
Report—is particularly instructive regarding why.
223
  That report came at the behest of Congress to 
review “the definitions of ‘information service’ . . . [and] ‘telecommunications service,’” along with “the 
application of those definitions to mixed or hybrid services . . . including with respect to Internet 
access.”
224
  The Stevens Report then exhaustively reviewed the text and legislative history of the 
Telecommunications Act, along with the agency’s own administrative precedent and the courts’ 
administration of antitrust law, to answer these questions.  Here are the highlights:
First, the Stevens Report found that Congress intended to incorporate judicial precedent into the 
term “information service”—specifically, the Modification of Final Judgment breaking up the Bell 
system.
225
  The court had prohibited the Bell operating companies from providing any “information 
service,”
226
and the Telecommunications Act’s definition paralleled the court’s definition almost word for 
                                                     
219
Communications Act § 230(b)(2) (emphasis added); see also Communications Act § 230(a)(1), (a)(3), (a)(4), 
(b)(1), (b)(3) (all using the phrase “Internet and other interactive computer services”).
220
Communications Act § 230(f)(2) (emphasis added).  To respond, as the Commission does, that section 230 does 
not “classify broadband Internet access service, as we define that term herein, as an information service” misses the 
point.  Order at para. 386.  When Congress adopted section 230 as part of the Telecommunications Act of 1996, of 
course it did not anticipate the precise definition the FCC would adopt almost 20 years later—but it could and did 
broadly define “interactive computer service” to envelop “any” information service provider, and “specifically a 
service or system that provides access to the Internet.”  Communications Act § 230(f)(2) (emphasis added).  The 
Order cannot and does not dispute that Internet service providers squarely fall within the definition.  At most, it 
argues that other services also fall within that definition, Order at note 1097, which seems rather obvious given how 
broadly the statute is written.
221
See Stevens Report, 13 FCC Rcd at 11501; Cable Modem Order, 17 FCC Rcd at 4798; Wireline Broadband 
Internet Access Services Order, 20 FCC Rcd at 14853; BPL Internet Access Order, 21 FCC Rcd at 13281; Wireless 
Broadband Internet Access Order, 22 FCC Rcd at 5901.
222
National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 987 (2005).
223
Although the Order now claims the Stevens Report was “not a binding Commission order,” Order at para. 315, 
our precedent has repeatedly treated it as such.  See, e.g., Communications Assistance for Law Enforcement Act, CC 
Docket No. 97-213, Second Report and Order, 15 FCC Rcd 7105, 7120, n.70 (1999); Cable Modem Order, 17 FCC 
Rcd at 4799, n.2; Wireline Broadband Internet Access Services Order, 20 FCC Rcd at 14862, para. 12.  Nor does the 
Order offer any reason to dismiss the considered views of five Commissioners reporting to Congress about how to 
construe the classification provisions of the Telecommunications Act.
224
Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. 
No. 105-119, 111 Stat. 2440, 2521, § 623 (1998).
225
Stevens Report, 13 FCC Rcd at 11520, para. 39.
226
United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 227 (D.D.C. 1982).
34
word.
227
  Most relevant here, the court explained that the term covered “two distinctly different types” of 
services: both “data processing and other computer-related services” and “electronic publishing services,” 
such as news and entertainment.
228
Second, the Stevens Report found that Congress intended to incorporate administrative precedent 
into the term “information service”—specifically, the Commission’s development of the concept of 
“enhanced service” in its Computer Inquiries proceeding.
229
  Under that precedent, the Commission had 
eschewed the idea that it could divide up an integrated service into its component parts: “[N]o regulatory 
scheme could ‘rationally distinguish and classify enhanced services as either communications or data 
processing,’ and any dividing line the Commission drew would at best ‘result in an unpredictable or 
inconsistent scheme of regulation’ as technology moved forward.”
230
  In other words, even though 
enhanced services were “offered ‘over common carrier transmission facilities,’ [they] were themselves 
not to be regulated under Title II of the Act, no matter how extensive their communications 
components.”
231
Third, the Stevens Report found that the “functions and services associated with Internet access,” 
such as “the provision of gateways (involving address translation, protocol conversion, billing 
management, and the provision of introductory information content) to information services” and 
“[e]lectronic mail, like other store-and-forward services,” were all “classed as ‘information services’ 
under the [Modified Final Judgment].”
232
  Similarly, the “Commission has consistently classed such 
services as ‘enhanced services.’”
233
Fourth, the Stevens Report concluded that “address[ing] the classification of Internet access 
service de novo” led to the same conclusion:  Internet access service is an information service according 
to the statute.  The question was “whether Internet access providers merely offer transmission . . . or 
whether they go beyond the provision of a transparent transmission path.”
234
  And the report concluded 
that “the latter more accurately describes Internet access service”
235
since Internet access services 
“combine computer processing, information provision, and other computer-mediated offerings with data 
                                                     
227
Compare Communications Act § 3(24), with United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 229 
(D.D.C. 1982).  The only difference?  The Telecommunications Act added the phrase “and includes electronic 
publishing.”
228
United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 179–80 (D.D.C. 1982) (capitalizations omitted).
229
Stevens Report, 13 FCC Rcd at 11520, para. 39.
230
Id. at 11513, para. 27 (citations omitted) (quoting Amendment of Section 64.702 of the Commission’s Rules and 
Regulations (Computer II), Final Decision, 77 FCC 2d 384, 425, 428, paras. 107–08, 113 (1980)).
231
Id. at 11514, para. 27 (emphasis added) (quoting Amendment of Section 64.702 of the Commission’s Rules and 
Regulations (Computer II), Final Decision, 77 FCC 2d 384, 428, paras. 114 (1980)).
232
Id. at 11536–37, para. 75.
233
Id. (citing Amendment of Section 64.702 of the Commission’s Rules and Regulations (Computer II), Final 
Decision, 77 FCC 2d 384, 420–21, paras. 97–98 (1980)).
234
Id. at 11536, para. 74; id. at 11520, para. 39 (finding a service to be a telecommunications service only if it offers 
“a simple, transparent transmission path, without the capability of providing enhanced functionality”); id. at 11520–
21, para. 40 (“[A]n entity is not deemed to be providing ‘telecommunications,’ notwithstanding its transmission of 
user information, in cases in which the entity is altering the form or content of that information.”); id. at 11511, para. 
21 (“Congress intended to maintain a regime in which information service providers are not subject to regulation as 
common carriers merely because they provide their services ‘via telecommunications.’”).
235
Id. at 11536, para. 74.
35
transport.”
236
  The fact that data transport was a component of the service was irrelevant
237
—what 
mattered was that “[s]ubscribers can retrieve files from the World Wide Web, and browse their contents, 
because their service provider offers the ‘capability for . . . acquiring, . . . retrieving [and] utilizing . . . 
information.”
238
In other words, the Stevens Report endorsed the view of a bipartisan group of Senators—John 
Ashcroft, Wendell Ford, John F. Kerry, Spencer Abraham, and Ron Wyden—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.”
239
  And it essentially agreed with Senator John McCain that “[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.”
240
Indeed, the Stevens Report noted that while the 1996 Telecommunications Act’s “explicit 
endorsement of the goals of competition and deregulation represents a significant break from the prior 
statutory framework,”
241
the Commission’s review of the statute and its legislative history revealed no 
similar intent to effect a “major change” with respect to the regulatory treatment of enhanced services like 
Internet access service.
242
  And if anything, it found the goals of the Telecommunications Act to “promote 
competition and reduce regulation”
243
supported the Commission’s classification decisions, since making 
Internet access and other enhanced services “presumptively subject to the broad range of Title II 
constraints[] could seriously curtail the regulatory freedom that the Commission concluded in Computer 
II was important to the healthy and competitive development of the enhanced-services industry.”
244
  
Indeed, in passing the 1996 Telecommunications Act, Congress made this clear by declaring it the policy 
of the United States “to preserve the vibrant and competitive free market that presently exists for the 
Internet and other interactive computer services, unfettered by Federal or State regulation.”
245
2.  Recent Developments.—Developments in the marketplace since the Stevens Report make it 
even more clear that ISPs do not “merely offer transmission” between points of the user’s choosing but 
instead offer a highly complex information service.
                                                     
236
Id. at 11536, para. 73.
237
Id. at 11539–40, para. 80.
238
Id. at 11538, para. 76 (emphasis added); id. at 11537, para. 76 (“Internet access providers typically provide their 
subscribers with the ability to run a variety of applications, including World Wide Web browsers, FTP clients, 
Usenet newsreaders, electronic mail clients, Telnet applications, and others.”  (footnotes omitted)).
239
Id. at 11520, para. 38 (quoting Letter from Senators John Ashcroft, Wendell Ford, John Kerry, Spencer Abraham, 
and Ron Wyden to the Honorable William E. Kennard, Chairman, FCC (Mar. 23, 1998) (Five Senators Letter), 
available at http://apps.fcc.gov/ecfs/document/view?id=2038710001); see also Five Senators Letter (“[W]ere the 
FCC to reverse its prior conclusions and suddenly subject some or all information service providers to telephone 
regulation, it seriously would chill the growth and development of advanced services to the detriment of our 
economic and educational well-being.”).
240
Stevens Report, 13 FCC Rcd at 11519, para. 37 (quoting Letter from Senator John McCain to the Honorable 
William E. Kennard, Chairman, FCC).
241
Id. at 11511, para. 21.
242
Id. at 11524, para. 45.
243
Telecommunications Act of 1996, as amended, preamble.
244
Stevens Report, 13 FCC Rcd at 1524, para. 46.
245
Communications Act § 230(b)(2).
36
Take the most basic example of visiting a webpage via a browser.  When the user types a domain 
name into a browser, the browser typically queries the ISP’s Domain Name System (DNS) service for the 
proper IP address to send that information.  The DNS service determines whether that information is 
stored on the local server; if so, it returns that IP address to the user, and if not, it queries another DNS 
server.  Such DNS servers are typically arranged in a hierarchy and searched recursively; once the URL is 
found, the appropriate information is forwarded and stored by each DNS server in the chain.  These 
functionalities—caching information and storing and forwarding information—are classic enhanced 
services.
246
It gets even more complicated.  For one, there is no necessary one-to-one correlation between 
domain names and IP addresses.
247
  So if an Internet user in California and a user in New York City both 
seek the IP address for www.yahoo.com, an ISP could return different IP addresses to each user.  The 
assignment could be random (to balance the load the server at each IP address must handle).  Or the ISP 
could make the decision based on any number of factors, such as the physical proximity of the servers to 
the user (to reduce the latency of the connection).
For another, even with an IP address, an ISP may not connect a user with a particular end point.  
Instead, ISPs regularly cache popular content—anything from simple text to streaming video—so that 
when a subscriber requests such content it can be retrieved more quickly (and with less load on the 
network) than would occur if the request were sent to its specified destination.
248
  And it’s not just an 
ISP’s own servers that cache content; an entire industry of content delivery networks have sprung up to 
move content closer to Internet users to improve performance.
249
And there’s still more:  ISPs are eliminating viruses and other malicious attacks on their 
networks, including by (1) implementing DNS Security Extensions to verify the integrity of the DNS 
information retrieved for subscribers, (2) erecting firewalls and other screening mechanisms to prevent 
denial-of-service attacks and the effectiveness of botnets, and (3) monitoring network traffic patterns to 
ensure early detection of security threats.
250
  They are using network address translation to establish non-
public IP addresses for their subscribers.
251
  And they are processing protocols to bridge the gap between 
IPv4 and IPv6.
252
                                                     
246
Amendment of Section 64.702 of the Commission’s Rules and Regulations (Computer II), Final Decision, 77 FCC 
2d 384, 421, para. 97 & n.35 (1980).
247
To rebut this point, the Order notes that it “is not uncommon in the toll-free arena for a single number to route to 
multiple locations.”  Order at para. 361.  But the FCC expressly found that the management of toll-free numbers is 
“not a common carrier service” in 1996 and that “Resporgs” that manage toll-free numbers “do not need to be 
carriers.”  800 Data Base Access Tariffs and the 800 Service Management System Tariff; Provision of 800 Services, 
CC Docket Nos. 93-129, 86-10, Report and Order, 11 FCC Rcd 15227, 15248–49, paras. 44–45 (1996) (emphasis 
added).
248
AT&T Reply at 54; Bright House Reply at 6–7.
249
Akamai Comments at 3; see also Netflix, Netflix Open Connect Content Delivery for ISPs (“Unlike traditional 
content caches which retrieve new content when a user requests an object that is not currently present in the cache, 
new and popular content is pushed from Netflix to the [Netflix-supplied Open Caching Appliances at 
interconnection points] on a nightly basis over peering or IP transit.”), available at http://nflx.it/1wpo0jw.
250
ACA Comments at 54–60; AT&T Comments at 48–49; CenturyLink Comments at 44–45; Charter Comments at 
14–15; Comcast Comments at 57; NCTA Comments at 34–35; T-Mobile Comments at 20; Time Warner Cable 
Comments at 12; USTelecom Comments at 26–27; USTelecom Reply at 29; Verizon Comments at 59–60.
251
See, e.g., Broadband Internet Technical Advisory Group, Report on Port Blocking at 6 (Aug. 2013), available at
http://www.bitag.org/documents/Port-Blocking.pdf.
252
Comcast Reply at 22; Verizon Comments at 60–61.
37
The end result of all this?  Even for the most basic web browsing functions, an ISP is doing more 
than merely offering transmission between points of the user’s choosing.  Indeed, as one commenter put 
it, “it is literally impossible for a broadband user to specify the ‘points’ of an Internet ‘transmission’ on 
the web” since the user is really just “specifying the original source of the information the user wants to 
retrieve” and the ISP then uses that information to choose the endpoint among several alternatives.
253
  Or 
as the Stevens Report put it, Internet access service enables subscribers “to access information with no 
knowledge of the physical location of the server where that information resides,”
254
not “between or 
among points specified by the user.”
255
The contrary conclusion—that Internet access service is a telecommunications service and that 
DNS service, caching, and “a variety of new network-oriented, security-related computer processing 
capabilities”
256
all fall within the telecommunications system management exception
257
—is in error.  
These capabilities serve the interests of subscribers, not ISPs.  For instance, DNS service doesn’t facilitate 
an ISP’s “management . . . of a telecommunications system or . . . service”; it allows a subscriber’s 
request for access to particular content to be translated into an IP address.  And in any case, these 
capabilities are not telecommunications services unless the underlying service itself is a 
telecommunications service—which, as explained above, it is not.
Moreover, the notion that these capabilities might fall within the management exception to the 
definition of information services would have been unthinkable to the Congress that enacted the 
Telecommunications Act.  Had Internet access service been a basic service, dominant carriers could have 
offered it (and all related computer-processing functionality) outside the parameters of the Computer 
Inquiries.  Had Internet access service been a telecommunications service, Bell operating companies 
could have offered it themselves under the Modified Final Judgment.  But I cannot find a single 
suggestion that anyone in Congress, anyone at the FCC, anyone in the courts, or anyone at all thought this 
was the law during the passage of the Telecommunications Act.
258
  Statutory interpretation “must be 
guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy 
decision of such economic and political magnitude to an administrative agency.”
259
  And it is highly 
unlikely that Congress drew upon historical sources to define a statutory term, but then intended to give 
the FCC the discretion to reach the exact opposite result.
260
                                                     
253
Fred B. Campbell, Center for Boundless Innovation in Technology, Broadband Transmissions Are Not 
“Telecommunications,” GN Docket No. 14-28, at 30 (Feb. 18, 2014), available at http://go.usa.gov/3aUWA.
254
Stevens Report, 13 FCC Rcd at 11532, para. 64.
255
Communications Act § 3(50) (defining “telecommunications”).
256
Order at para. 373.
257
Communications Act § 3(24) (defining the term “information service” and noting that it “does not include any 
use of any such capability for the management, control, or operation of a telecommunications system or the 
management of a telecommunications service”).
258
Despite the Order’s claim to the contrary, Order at note 975, this line of reasoning does not contradict the 
Court’s holding in Brand X, since the last-mile transmission service discussed there (and which I discuss below) is 
just not the same service as the Internet access service that the Order claims is a telecommunications service here.  
And one need look no further than section 230 of the Communications Act along with the legislative history 
reviewed in the Stevens Report—all described above—to find compelling evidence that Congress did in fact think 
that Internet access service was an information service.
259
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000).
260
Cf. MCI Telecomms. Corp. v. Am. Tel. & Tel. 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.”).
38
Furthermore, given the increasing use of computer processing in the networking, I do not see how 
“[c]hanged factual circumstances” could lead the FCC to revisit the classification of Internet access 
service.
261
  Although the FCC’s prior determinations rested on “a factual record compiled over a decade 
ago,”
262
the Order does not identify any actual change.
First, the Order points to “consumer conduct”
263
to show that consumers use the Internet “today 
primarily as a conduit for reaching modular content, applications, and services that are provided by 
unaffiliated third parties.”
264
  Examples include 350–400 million visits a day to Google and Yahoo!’s 
“popular alternatives to the email services provided” by ISPs, Go Daddy providing “website hosting,” and 
Apple, Dropbox, and Carbonite operating “‘cloud-based’ storage.”
265
But the availability and popularity of third-party content is hardly new.  Yahoo! Mail went online 
in 1997.
266
  HoTMaiL (the original web-based email) launched in 1996.
267
  GeoCities, a website-hosting 
service, launched in 1995 and was the third most-visited site on the web in 1999.
268
  And Amazon.com 
was selling books, music, and videos before the turn of the century, and began offering cloud-based 
Amazon Web Services in 2002.
269
  Were the most successful sites back then as large as the most 
successful sites today?  Of course not.  The number of broadband Internet connections has skyrocketed 
from 4.3 million in 2000 (at speeds of 200 kbps) to 122 million (at speeds of 10 Mbps)
270
—and a rising 
tide lifts all ships (or most, alas for GeoCities).
And the FCC was certainly aware that consumers were visiting third-party sites and using third-
party applications in its previous classification decisions.  The Cable Modem Order itself noted that 
“cable modem service subscribers, by ‘click-through’ access, may obtain many functions from companies 
with whom the cable operator has not even a contractual relationship.  For example, a subscriber to 
Comcast’s cable modem service may bypass that company’s web browser, proprietary content, and e-
mail.  The subscriber is free to download and use instead, for example, a web browser from Netscape, 
content from Fox News, and e-mail in the form of Microsoft’s ‘Hotmail.’”
271
  So what has changed?  
Nothing legally relevant.  New automotive makes, models, and functions have arrived since 2005; that 
doesn’t change the fact that what we are doing is driving.  LED bulbs are replacing incandescent bulbs by 
the millions; that doesn’t change the fact that we’re using something to light up a room.  We access and 
use the capabilities that Internet access service provides in new and novel ways; that doesn’t change the 
fact that we’re accessing and using the Internet.
                                                     
261
Order at para. 330.
262
Order at para. 330.
263
Order at para. 330.
264
Order at para. 350.
265
Order at para. 348.
266
Internet Archive Wayback Machine: Yahoo!, http://bit.ly/18xSlB5 (Oct. 15, 1997).
267
Internet Archive Wayback Machine: HoTMaiL, http://bit.ly/1887bOB (Dec. 20, 1996).
268
Rosalie Marshall, Yahoo closing GeoCities web hosting service, vnunet.com (Apr. 24, 2009), available at
http://bit.ly/198SoVg; see also Internet Archive Wayback Machine: GeoCities, http://bit.ly/1B0pV9E (Feb. 22, 
1997).
269
Internet Archive Wayback Machine: Amazon.com, http://bit.ly/198StZ0 (Oct. 13, 1999).
270
Compare FCC, High-Speed Services for Internet Access: Subscribership as of June 30, 2000, at 2 (Oct. 2000),
available at http://go.usa.gov/3aUZe, with FCC, Internet Access Services: Status as of December 31, 2013, at 4 
(Oct. 2014), available at http://go.usa.gov/3aUBH.
271
Cable Modem Order, 17 FCC Rcd at 4816, para. 25.
39
Next, the Order points to “broadband providers’ marketing and pricing strategies.”
272
  Some 
“advertisements . . . emphasize transmission speed as the predominant feature that characterizes 
broadband Internet access service offerings,” such as AT&T’s claim that it offers the “[n]ation’s most 
reliable 4G LTE network” with “speeds up to 10x faster than 3G.”
273
  Others “link higher transmission 
speeds and service reliability with enhanced access to the Internet at large,” such as RCN’s claim that its 
“110 Mbps High-Speed Internet” offering is “ideal for watching Netflix.”
274
  And ISPs “price and 
differentiate their service offerings on the basis of the quality and quantity of data transmission” with 
higher prices for faster speeds.
275
But again, this is nothing new.  In 1999, Qwest asked customers “Could your business use the 
bandwidth to change everything?” and advertised service fast enough to access “every movie ever made 
in any language anytime, day or night.”
276
  In 2001, Charter was offering “Internet Light” (256 kbps 
service for $24.95 per month) and “Residential Classic” (1024 kbps for $39.95 per month) as part of its 
“Charter Pipeline” service.
277
  Even America Online in 1999 was advertising how it “spent over $1 billion 
to build the world’s largest high-speed network—now with 56k, connections are faster than ever!”
278
And again, the FCC knew this when it decided the Cable Modem Order.  In the Commission’s 
Second Broadband Deployment Report in 2000, the FCC noted the prices for broadband Internet access 
service, from “low-end ADSL service” priced at $39.95 to $49.95 per month, to “[f]aster ADSL services” 
at $99.95 to $179.95 per month, and “symmetric DSL . . . well-suited to applications . . . such as 
videoconferencing” and priced at $150 to $450 per month.
279
But more to the point, contemporary marketing doesn’t suggest that a wheel’s been invented.  
Deploying last-mile facilities generally has long been the biggest cost of broadband.  As a result, the way 
in which broadband providers have competed is product/service differentiation.  So of course broadband 
providers today advertise their speeds and their prices—that’s a large part of what makes each distinct.  
But it doesn’t mean that their last-mile transmission service by itself is what they’re selling—I don’t know 
many consumers lining up for fast transmission to a cable headend or central office but not actual access 
to the Internet.
Lastly, the Order argues that “the predictive judgments on which the Commission relied in the 
Cable Modem Declaratory Ruling anticipating vibrant intermodal competition for fixed broadband cannot 
be reconciled with current marketplace realities.”
280
  One problem is that this argument doesn’t address 
the reclassification question at all.  The statute doesn’t classify a service based on the quantity of 
providers, so it doesn’t matter whether there are 4,462 (like there are for Internet access service) or just 
one (like there is for telegraph service).
                                                     
272
Order at para. 330.
273
Order at para. 351 (citing Public Knowledge Comments Appendix at A-2).
274
Order at para. 352 (citing Public Knowledge Comments Appendix at A-3).
275
Order at para. 353 (citing Public Knowledge Comments Appendix at A-1).
276
Qwest, Qwest Commercial 1999 – Every Movie, https://www.youtube.com/watch?v=xAxtxPAUcwQ.
277
Charter, Charter Pipeline (2001), http://bit.ly/1EQV19H.
278
America Online, AOL Commercial from 1999, https://www.youtube.com/watch?v=MQcCnPWHlLk.
279
Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a 
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the 
Telecommunications Act of 1996, CC Docket No. 98-146, Second Report, 15 FCC Rcd 20913, 20931, paras. 36–37 
(2000).
280
Order at para. 330.
40
The greater problem is this assertion comes up empty too.
281
  Alongside the high-speed 
broadband Internet access service offered by cable operators and telephone companies, 98% of Americans 
now live in areas covered by 4G LTE networks (i.e., networks capable of delivering 12 Mbps mobile 
Internet access),
282
wireless ISPs are using unlicensed spectrum to offer new, cheaper services, and new 
entrants like Google are bringing 1 Gbps service to areas around the country.  Indeed, it’s no wonder that 
the Order offers no factual support for this assertion.  To the contrary, the Commission itself has 
repeatedly recognized that “current marketplace realities” reflect intermodal competition
283
—including in 
this very Order!
284
In short, all the facts point in the same direction:  Broadband Internet access service is an 
information service.
3.  Broadband Internet Access Transmission Services.—Nor can the Commission seek refuge in 
the Commission’s past identification of a transmission service as a component of broadband Internet 
access service.  Even if a broadband Internet access service provider could be said to offer a separable 
transmission service (and it can’t), the transmission service discussed in our precedent is very different 
from the broadband Internet access service that the FCC classifies today.
Start with the precedent.  In the Advanced Services Order, the Commission examined 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.”
285
  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.”
286
  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.
287
Similarly, the Commission identified “broadband Internet access transmission service” as a 
possible telecommunications service in the Wireline Broadband Internet Access Services Order.
288
  
Again, however, that service was the last-mile transmission service between the end user and the ISP, and 
one the carrier could choose to offer as common carriage or private carriage.
289
  And it is these last-mile 
                                                     
281
Despite the Order’s suggestion to the contrary, the Cable Modem Order did not limit its prediction to “fixed 
broadband.”
282
2015 Broadband Progress Report at para. 109.
283
See 2015 Broadband Progress Report at paras. 15–16 (observing that “[p]rivate industry continues to invest 
billions of dollars to expand America’s broadband networks” and explicitly comparing cable, telco, wireless, Google 
Fiber, and municipal broadband investments).
284
Order at para. 76 & note 114 (noting “the remarkable increases in investment and innovation seen in recent 
years” and citing as evidence of robust broadband infrastructure investment cable, telco, wireless incumbent 
investment and new entrants like Google Fiber).
285
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).
286
Id. at 24027, paras. 30–31.
287
Id. at 24030, para. 36.
288
Wireline Broadband Internet Access Services Order, 20 FCC Rcd at 14899, para. 86.
289
Id. at 14899–900, paras. 86–88 (describing this as a service that both end users and ISPs would purchase).
41
transmission services that many rural carriers still offer as a telecommunications service (in large part in 
order to receive subsidies from our legacy universal service program, which funds the regulated costs of 
high-cost loops used to provide telecommunications services).
290
It was this potential last-mile transmission service that was at issue in the Brand X case. As the 
Commission reasoned, this service was not a separable telecommunications service because the 
“consumer uses the high-speed wire always in connection with the information-processing capabilities 
provided by Internet access, and because the transmission is a necessary component of Internet access.”
291
And it was this last-mile transmission service that Justice Scalia identified in his dissent as being 
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.”
292
  He 
analogized to a pizzeria, arguing that a delivery service was being offered after the pie was baked:
If, for example, I call up a pizzeria and ask whether they offer delivery, both common 
sense and common “usage,” would prevent them from answering: “No, we do not offer 
delivery—but if you order a pizza from us, we’ll bake it for you and then bring it to your 
house.”  The logical response to this would be something on the order of, “so, you do
offer delivery.”
293
In contrast, consider the broadband Internet access service at issue in this proceeding.  It is not 
limited to the last-mile transmission service between a customer and an ISP’s point of presence.  It 
extends into the ISP’s network all the way to “the exchange of traffic between a last-mile broadband 
provider and connecting networks”
294
—a scope that necessarily extends onto the Internet’s backbone, 
since that’s where many networks interconnect.  And the Order reclassifies Internet access service for “all 
providers of broadband Internet access service . . . regardless of whether they lease or own the facilities 
used to provide the service.”
295
To extend the pizzeria analogy, this Order does not only cover the delivery of a baked pie.  
Instead, the Order reaches the exchange of ingredients between a pizzeria and its suppliers, since all those 
ingredients must be “delivered” to the pizzeria.  To the extent a pizzeria stores popular ingredients, that’s 
just an adjunct to the delivery services that came before and afterwards.  To the extent a pizzeria 
processes the ingredients, that’s just an adjunct too.
296
                                                     
290
Id. at 14900–03, paras. 89–95; NTCA Comments at 9.  Notably, rural carriers exercising this option do not treat 
the Internet access service itself as a Title II telecommunications service and generally offer that service through a 
separate, affiliated ISP that purchases the last-mile transmission service from the carrier.  To the extent the Order
suggests otherwise, see Order at para. 422, it is incorrect.
291
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 988 (2005).
292
Id. at 1010 (Scalia, J., dissenting).
293
Id. at 1007 (Scalia, J., dissenting).
294
Order at para. 204.
295
Order at para. 337.
296
Order at paras. 366–75.  The Order misunderstands the analogy when it supposes that “the pizzeria owners 
discovered that other nearby restaurants did not deliver their food and thus concluded that the pizza-delivery drivers 
could generate more revenue by delivering from any neighborhood restaurant (including their own pizza some of the 
time).  Consumers would clearly understand that they are being offered a delivery service.”  Order at para. 45.  Of
course they would.  And if someone offered a last-mile transmission service available to any ISP, of course that 
(continued…)
42
In other words, when the Order claims that “[t]here is no disputing that until 2005, Title II 
applied to the transmission component of DSL service,”
297
it is being intentionally misleading.  The 
service being reclassified today is different in kind from the last-mile transmission services that were at 
issue in prior FCC orders.  And so the Order’s claim that it is just returning things to how they were ten 
years ago is just wrong. In fact, the Order overturns three decades of precedent—indeed, all the 
precedent we’ve ever had on the subject.
298
4.  Heightened Scrutiny.—Not only does the FCC lack the authority to classify broadband 
Internet access service as a Title II telecommunications service; it also, in any event, fails to supply a 
reasoned basis for departing from decades of agency precedent that determined it is an information 
service.
299
The agency faces one further obstacle in its quest to reclassify broadband Internet access service:  
heightened judicial scrutiny.  When an agency’s “new policy rests upon factual findings that contradict 
those which underlay its prior policy; or when its prior policy has engendered serious reliance interests 
that must be taken into account,”
300
an agency decision to reverse course is subject to heightened or more 
searching review.
301
  Both circumstances are present here.
First, as discussed above, the Commission’s decision to reclassify broadband Internet access 
service rests upon a series of factual findings that run directly contrary to those it made in all prior 
classification decisions.
Second, if there ever could be a case where an agency has engendered serious reliance interests, 
this is it.  After the passage of the 1996 Telecommunications Act and the confirmation that Internet access 
service was an information service in the Stevens Report, the FCC trumpeted the multi-billion 
investments that AT&T, MCI, Qwest, Level 3, UUNet Technologies, Sprint, and others were making in 
(Continued from previous page)                                                           
would be a telecommunications service.  But that’s not what any broadband Internet access service provider is 
offering, and so the analogy utterly fails.
297
Order at para. 313.
298
The Order objects in a footnote that “the service we define and classify today is the same transmission service as 
that discussed in prior Commission orders.”  Order at note 1257.  But it undermines that argument just one sentence 
before, when it describes the service as one with “the capability to send and receive packets to all or substantially all 
Internet endpoints.”  Id.  The transmission service the FCC previously recognized was not and is not so expansive—
it’s a last-mile transmission service connecting customers to computer-processing facilities for Internet access.  
That’s why the Wireline Broadband Internet Access Services Order recognized that ISPs would be customers of 
such service.  See 20 FCC Rcd at 14902, para. 92 (describing the transmission service offered to “end user and ISP 
customers”).  And that’s why even today the tariffs of the National Exchange Carrier Association describe Digital 
Subscriber Line (DSL) as a local point-to-point service.  See, e.g., NECA Tariff FCC No. 5, 20th Revised Page 8-1 
http://bit.ly/1wkvPH8 (effective through Mar. 1, 2015) (describing DSL Access service as a transmission service 
“over local exchange service facilities . . . between customer designated premises and designated Telephone 
Company Serving Wire Centers”).  To return to the pizzeria analogy:  Before, the Commission regulated the 
delivery from the pizzeria to the customer; now, the Commission wants to regulate that delivery plus the delivery of 
all or substantially all of the ingredients to the pizzeria.  The one thing is not like the other.
299
See, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 
(1983).
300
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (citing Smiley v. Citibank (South Dakota), N. A., 
517 U.S. 735, 742 (1996)).
301
Id. at 513–16.
43
the Internet backbone, noting that bandwidth on the backbone was doubling every four to six months.
302
  
Starting the year after the Stevens Report, broadband providers have invested over $1.125 trillion in their 
networks.
303
  To suggest these providers did not rely on the FCC’s decision not to subject Internet access 
services—broadband or otherwise—to Title II is absurd.
Indeed, look just at the wireless industry as an example.  In 2007, when the Commission 
classified wireless broadband Internet access service as an information service, FCC Chairman Kevin 
Martin stated that “[t]oday’s classification eliminates unnecessary regulatory barriers for wireless 
broadband Internet access service providers and will further encourage investment and promote 
competition in the broadband market.”
304
  It certainly did.  Between that decision and now, wireless 
providers alone have invested over $175 billion.
Regardless of whether the heightened or more traditional standard applies, the Order fails to offer 
an adequate basis for changing course.  Indeed, given that neither the material facts nor relevant laws 
have changed, it is quite plain that the only reason the FCC is departing from prior precedent is because 
the President told the agency to do so.
305
  But courts have been quite clear that this is not a lawful basis 
for shifting course, with the D.C. Circuit stating that “an agency may not repudiate precedent simply to 
conform with a shifting political mood.”
306
  As a result, the FCC’s attempt to offer a reasoned basis for 
turning heel on decades of agency precedent falls far short of meeting APA requirements.
B.
Section 332 of the Communications Act independently bars the FCC from reclassifying mobile 
broadband Internet access service as a Title II telecommunications service.
In section 332, Congress added a mobile gloss onto the definition of telecommunications service 
originally formulated for wireline carriers.  Pursuant to the statute, providers of “commercial mobile 
service” are common carriers, and thus telecommunications carriers.
307
  By contrast, providers of “private 
mobile service” are not.
308
In order to understand why mobile broadband Internet access service is a private mobile service 
and thus cannot be classified as a Title II service, it is necessary to begin by running through a number of 
definitions.  First, a “commercial mobile service,” in relevant part, is any mobile service that “makes 
                                                     
302
Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a 
Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the 
Telecommunications Act of 1996, CC Docket No. 98-146, Report, 14 FCC Rcd 2398, para. 38 (1999).
303
See, e.g., USTelecom, Broadband Investment, Historical Broadband Provider Capex (2015) (data through 2013), 
available at http://www.ustelecom.org/broadband-industry-stats/investment/historical-broadband-provider-capex. 
304
Wireless Broadband Internet Access Order, 22 FCC Rcd at 5926 (Statement of Chairman Kevin J. Martin).
305
See supra Part I.
306
National Black Media Coalition v. FCC, 775 F.2d 342, 356 n.17 (D.C. Cir. 1985); see also Fox, 556 U.S. at 537 
(Kennedy, J., concurring in part and concurring in the judgment) (“Congress passed the Administrative Procedure 
Act (APA) to ensure that agencies follow constraints even as they exercise their powers.  One of these constraints is 
the duty of agencies to find and formulate policies that can be justified by neutral principles and a reasoned 
explanation.”).
307
Communications Act § 332(c)(1)(A) (“A person engaged in the provision of a service that is a commercial 
mobile service shall, insofar as such person is so engaged, be treated as a common carrier.”).
308
Communications Act § 332(c)(2) (“A person engaged in the provision of a service that is a private mobile service 
shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose.”).
44
interconnected service available.”
309
  “[I]nterconnected service,” in turn, means a “service that is 
interconnected with the public switched network”
310
and “gives subscribers the capability to communicate 
to or receive communication from all other users on the public switched network.”
311
  “[P]ublic switched 
network,” for its part, means the public switched telephone network, i.e., the “common carrier switched 
network . . . that use[s] the North American Numbering Plan in connection with the provision of switched 
services.”
312
  And “private mobile service” is the reverse of commercial mobile service: “any mobile 
service . . . that is not a commercial mobile service or the functional equivalent of a commercial mobile 
service.”
313
Given these definitions, it’s no surprise that the FCC back in 2007 classified mobile broadband 
Internet access service as a private mobile service—and hence recognized that it could not be treated as a 
common-carriage, telecommunications service.
314
  As the Commission put it:  “[M]obile wireless 
broadband Internet access service does not fit within the definition of ‘commercial mobile service’ 
because it is not an ‘interconnected service.’”
315
  That’s because it does not interconnect with the public 
switched telephone network but instead a different network—the Internet.
316
  The Commission reaffirmed 
that finding four years later when it held that “commercial mobile data service,” which, as relevant here, 
is the equivalent of retail mobile Internet access service, “is not interconnected with the public switched 
network.”
317
Courts have repeatedly confirmed this view.  The D.C. Circuit in Cellco explained that, 
“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.”
318
  The 
court recognized what it described as Section 332’s “statutory exclusion of mobile-internet providers 
from common carrier status.”
319
  And it noted that, when read in conjunction with the Communications 
Act’s separate prohibition on treating information services providers as common carriers, mobile 
broadband Internet access service providers are “statutorily immune, perhaps twice over, from treatment 
as common carriers.”
320
  The D.C. Circuit in Verizon put it even more bluntly:  The “treatment of mobile 
broadband providers as common carriers would violate section 332.”
321
This regulatory framework creates major problems for the task that President Obama specifically 
assigned the Commission: reclassifying mobile broadband Internet access service as a Title II 
                                                     
309
Communications Act § 332(d)(1).
310
Communications Act § 332(d)(2).
311
47 C.F.R. § 20.3.
312
47 C.F.R. § 20.3.
313
Communications Act § 332(d)(3).
314
Wireless Broadband Internet Access Order, 22 FCC Rcd at 5901.
315
Id. at 5916, para. 41.
316
Id. at 5916, 5917, paras. 41, 45 & n.118.
317
Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of 
Mobile Data Services, WT Docket No. 05-265, 26 FCC Rcd 5411, 5431, para. 41 (2011).
318
Cellco Partnership v. FCC, 700 F.3d 534, 538 (D.C. Cir. 2012).
319
Id. at 548.
320
Id. at 538; see also id. (recognizing that the Communications Act’s definition of the term “common carrier” has 
been “interpreted . . . to exclude providers of ‘information services’”).
321
Verizon v. FCC, 740 F.3d 623, 650 (D.C. Cir. 2014).
45
telecommunications service.
322
  And so the Commission only makes a half-hearted attempt to work within 
it.  In two short paragraphs, the Order claims that because mobile broadband Internet access service 
enables the use of VoIP and similar applications, it “gives subscribers the capability to communicate with 
all NANP endpoints”
323
and is thus an interconnected service, a commercial mobile service, and a 
telecommunications service.
But this isn’t a new argument—the Commission squarely addressed it and rejected it seven years 
ago.
324
  A service is classified based on its own functions and properties,
325
and there is no question that a 
subscriber to mobile broadband Internet access service, without interconnected VoIP service, cannot
reach the public switched telephone network.  In other words, interconnected VoIP service and mobile 
broadband are distinct services,
326
so while VoIP might be an interconnected service, mobile broadband is 
not.
327
Today’s Order offers no reasoned basis for departing from these precedents, nor for concluding 
that VoIP service and mobile broadband Internet access service are now a single, unified service.  Yes, 
mobile users can now communicate with different types of networks; but they could do that in 2007.  Yes, 
there are more subscribers to mobile broadband Internet access service now than in 2007; but that has 
nothing at all to do with whether VoIP and mobile broadband are distinct services.  And while the FCC 
may assert that “changes in the marketplace have increasingly blurred the distinction between services 
using NANP numbers and those using public IP addresses,”
328
that’s just an ipse dixit; no consumer that I 
know types a phone number into a web browser to make a call, and no one tries to dial a URL into their 
phone.
What is more, the Order’s attempted conflation makes no sense.  If mobile broadband Internet 
access service could lose its status as a distinct service and blend into another merely because it enables 
access to interconnected VoIP service, then it truly is a regulatory chameleon.  Is it a cable service 
because consumers can use apps to watch cable programming?  Is it a radio service because people can 
use apps to listen to an FM station?  Is it food delivery service because some apps let you order pizza 
from your phone?  Obviously not.
Implicitly recognizing these problems with its approach, the Order next attempts to jettison the 
whole regulatory framework and replace it with one far more amenable to the outcome it desires—first by 
redefining the meaning of public switched network, next by redefining the meaning of functional 
                                                     
322
The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet 
https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014) (“I believe 
the FCC should make these rules fully applicable to mobile broadband as well.”).
323
Order at paras. 400–01.
324
Wireless Broadband Internet Access Order, 22 FCC Rcd at 5917–18, para. 45.
325
See, e.g., Time Warner Cable Request for Declaratory Ruling that Competitive Local Exchange Carriers May 
Obtain Interconnection under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale 
Telecommunications Services to VoIP Providers, WC Docket No. 06-55, Memorandum Opinion and Order, 22 FCC 
Rcd 3513, 3521–22, paras. 15–16 (Wireline Comp. Bur. 2007) (noting the “regulatory classification of the [VoIP] 
service provided to the ultimate end user has no bearing on” the regulatory status of the entities “transmitting [the 
VoIP] traffic”).
326
Wireless Broadband Internet Access Order, 22 FCC Rcd at 5918, para. 45 (stating that “users of a mobile 
wireless broadband Internet access service need to rely on another service or application, such as certain voice over 
Internet Protocol (VoIP) services . . . to make calls”).
327
Id. at 5917–18, paras. 45–46.
328
See Order at para. 401.
46
equivalence, and finally by summoning a “statutory contradiction” into being.  None of these attempts 
withstands scrutiny.
1.  Redefining the Meaning of the Public Switched Network.—The Commission’s first move is to 
broaden the definition of the public switched network to include not only services that use the North 
American Numbering Plan but also those that use “public IP addresses.”
329
  In other words, the public 
switched network would now encompass the Internet in addition to the traditional public switched 
telephone network.
But that’s not what the statute allows.  A “fundamental canon of statutory construction is that, 
unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common 
meaning.”
330
  In the case of a term of art, that ordinary meaning is determined based on common usage 
among those practiced in the art.
And in the years preceding the passage of section 332(d)(2), the FCC and the courts repeatedly 
used the term “the public switched network” to refer to the traditional, circuit-switched network that 
AT&T and local exchange carriers had built to offer telephone service, i.e., the public switched telephone 
network.  In 1981, the Commission noted that “the public switched network interconnects all telephones 
in the country.”
331
  In 1982, the D.C. Circuit noted that wide area telecommunications service “calls are 
switched onto the interstate long distance telephone network, known as the public switched network, the 
same network over which regular long distance calls travel.”
332
  In 1985, the Federal-State Joint Board on 
Separations noted that the “costs involved in the provision of access to the public switched network[] are 
assigned . . . on the same basis as . . . [t]he local loop used by subscribers to access the switched telephone 
network.”
333
  And in 1992, the FCC characterized its cellular service policy as “encourag[ing] the creation 
of a nationwide, seamless system, interconnected with the public switched network so that cellular and 
landline telephone customers can communicate with each other on a universal basis.”
334
So it’s no wonder that when the FCC first defined “the public switched network,” it expressly 
rejected calls to decouple that concept from the traditional public switched telephone network.  
                                                     
329
Order at para. 391.
330
Perrin v. United States, 444 U.S. 37, 42 (1979); see also Evans v. United States, 504 U.S. 255, 260 n.3 (1992) 
(Where a “‘word is obviously transplanted from another legal source, whether common law or other legislation, it 
brings the old soil with it.’”  (quoting Justice Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 
COLUM. L. REV. 527, 537 (1947)).
331
Applications of Winter Park Tel. Co., Memorandum Opinion and Order, 84 FCC.2d 689, 690, para. 2, n.3 (1981).
332
Ad Hoc Telecommunications Users Committee v. FCC, 680 F.2d 790, 793 (D.C. Cir. 1982).
333
MTS and WATS Market Structure; Amendment of Part 67 of the Commission’s Rules and Establishment of a 
Joint Board, CC Docket Nos. 78-72, 80-286, Order Inviting Further Comments, 50 Fed. Reg. 31749, 41749 (Fed.-
State Jt. Bd. 1985).
334
Amendment of Part 22 of the Commission’s Rules Relating to License Renewals in the Domestic Public Cellular 
Radio Telecommunications Service, CC Docket No. 90-358, Report and Order, 7 FCC Rcd 719, 720, para. 9 (1992); 
see also Provision of Access for 800 Service, CC Docket No. 86-10, Memorandum Opinion and Order on 
Reconsideration and Second Supplemental Notice of Proposed Rulemaking, 6 FCC Rcd 5421, 5421, n.3 (1991) 
(“800 numbers generally must be translated into [plain old telephone service] numbers before 800 calls can be 
transmitted over the public switched network.”); Telecommunications Services for Hearing-Impaired and Speech-
Impaired Individuals, and the Americans with Disabilities Act of 1990, CC Docket No. 90-571, Notice of Proposed 
Rulemaking, 5 FCC Rcd 7187, 7190, para. 20 (1990) (noting that “subscribers to every telephone common carriers’ 
interstate service, including private line, public switched network services, and other common carrier services, will 
contribute”); Letter from Scott Bergmann, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-
137, at 7 n.2 (Dec. 22, 2014) (collecting authorities).
47
Commenters had asked the Commission to broaden the scope of the term to include the then-emerging 
“network of networks.”
335
  Still others teed up defining the term to “include all networks.”
336
  But the 
Commission said no, and tied its definition of the public switched network to “the traditional local 
exchange or interexchange switched network.”
337
  In other words, the agency recognized that “Congress 
intended [the term] to have its established meaning,”
338
which in this case means the public switched 
telephone network—not the Internet.
339
In the 20 years since the FCC defined the term, Congress has amended the Communications 
Act—and section 332—numerous times.
340
  On every occasion, it has chosen not to disturb the 
Commission’s interpretation.  As the Supreme Court has explained, this “congressional failure to revise 
or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by 
Congress.”
341
And Congress itself has distinguished between “the public switched network” on the one hand 
and the “public Internet” on the other.  In the Spectrum Act of 2012, for example, Congress assigned the 
First Responder Network Authority certain responsibilities, including developing for public safety users a 
“core network” that “provides connectivity” to “the public Internet or the public switched network, or 
both.”
342
  This provision makes clear that Congress knows the difference between “the public switched 
network” and the “public Internet.”  The Commission must respect that distinction.
343
There’s another problem with the Commission’s attempt to expand the definition of “the public 
switched network” to include the Internet:  Congress used the definite article “the” and the singular term 
                                                     
335
Implementation of Sections 3(n) and 332 of the Communications Act; Regulatory Treatment of Mobile Services, 
GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411, 1434, para. 53 (1994) (CMRS Second Report 
and Order).
336
Id.
337
Id. at 1436–37, para. 59.  To support its action here, the Commission cites commenters that called on the FCC in 
1994 to broaden the scope of the term “the public switched network” to include the “network of networks,” or 
otherwise separate the term entirely from the traditional public switched telephone network.  See Order at note 1145.  
Again, this ignores that the Commission rejected those commenters’ calls to so fundamentally alter the term “the 
public switched network” and made clear that, consistent with section 332, it was limiting the term to covering 
services that are “interconnected with the traditional local exchange or interexchange switched network.”  CMRS 
Second Report and Order, 9 FCC Rcd at 1436–37, para. 59.
338
McDermott Intern., Inc. v. Wilander, 498 U.S. 337, 342 (1991).
339
Indeed, section 332’s legislative history confirms that Congress used the terms interchangeably.  Although both 
the House and Senate versions of the legislation used the term “the public switched network,” the Conference 
Report characterized the House version as requiring interconnection with “the Public switched telephone network.”  
H.R. Rep. 103-213, 103d Cong., 1st Sess. 495 (1993) (emphasis added).
340
See, e.g., Telecommunications Act § 704(b) (amending section 332 of the Communications Act).
341
Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 
416 U.S. 267, 274–275 (1974)); see also Cottage Sav. Ass’n v. C.I.R. 499 U.S. 554, 561 (1991) (“‘[I]nterpretations 
long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to 
have received congressional approval and have the effect of law.’”  (quoting U.S. v. Correll, 389 U.S. 299, 305–06 
(1967))); City of Pleasant Grove v. U.S., 479 U.S. 462, 468 (1987) (Where Congress is aware of an administrative 
interpretation when it revises a statute, it “implicitly approve[s] it.”).
342
47 U.S.C. § 1422(b)(1).
343
See, e.g., Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (applying the “normal rule of statutory construction that 
identical words used in different parts of the same act are intended to have the same meaning” to a single term used 
in two separate, but related, statutes (internal quotation marks omitted)).
48
“network” in section 332(d)(2)—suggesting Congress was referring to a single, integrated network.  And 
the Commission followed that lead when it defined interconnected service as giving “subscribers the 
capability to communicate to or receive communication from all other users on the public switched 
network.”
344
  Here, the Order impermissibly attempts to define “the public switched network” to be two 
networks.  Furthermore, expanding the definition of the public switched network to encompass two 
distinct networks—the public switched telephone network and the public Internet—means that no mobile 
service would be interconnected since no service offers interconnection with substantially all of each 
network.  For example, mobile voice service would no longer be an interconnected service nor a 
commercial mobile service nor a telecommunications service since it unquestionably does not give 
consumers a way of dialing up websites.  And so the one service that everyone agrees Congress intended 
to be a commercial mobile service would not be one.
345
In light of all this evidence that the term “the public switched network” in section 332(d)(2) does 
not include the Internet, the Commission’s contrary interpretation is neither reasonable nor credible.
How does the Commission respond?  The Order’s primary argument is that Congress “expressly 
delegated authority to the Commission to define the term ‘public switched network,’” and that, in doing 
so, “Congress expected the notion to evolve and therefore charged the Commission with the continuing 
obligation to define it.”
346
  But that’s just wishful thinking.  Nothing in the text of section 332 nor in its 
legislative history supports the view that Congress intended the term “the public switched network” to be 
capable of such an amazing feat of mutation that it could swallow today’s Internet.
The actual text makes that clear.  The referenced delegation appears in section 332’s definition of 
the term “interconnected service.”
347
  It states:  “the term ‘interconnected service’ means service that is 
                                                     
344
47 C.F.R. § 20.3 (emphasis added).
345
In an effort to try to avoid this absurdity, the Order says in a footnote that it is making a “conforming change to 
the definition of Interconnected Service in section 20.3 of the Commission’s rules.”  Order at note 1175; see also 47 
C.F.R. § 20.3 (defining interconnected service as one “[t]hat is interconnected with the public switched network, or 
interconnected with the public switched network through an interconnected service provider, that gives subscribers 
the capability to communicate to or receive communication from all other users on the public switched network”) 
(emphasis added).  That change?  Deleting the word “all” from the definition of interconnected service!  Order at 
Appendix A.  There are many words one could use to describe this amendment.  “Conforming” (or “minor”) is not 
one of them.  Under this change, every user of Network A (say, the public switched telephone network) could lack 
the capability to communicate with any user of Network B (say, the Internet) and vice-versa, but, because of the 
FCC’s definitional change, Network A and Network B would now be a single, interconnected network.  That is 
plainly at odds with the entire structure of section 332 and any reasonable understanding of the concept of an 
interconnected network and interconnected services.
Indeed, the FCC never proposed such a change, has no record on which to do so, and nowhere explains how the 
change can be squared with the text, purpose, or history of section 332, including the Commission’s own view that 
the purpose of the interconnected services definition is to ensure that those services are “broadly available.”  See 
Order at para. 402.  Although the Order tries to bolster its approach by contending that the definition of 
“interconnected service” and the CMRS Second Report and Order recognize that a service can be interconnected 
even if access is limited in some ways, Order at para. 402 & note 1172, this effort fails because the FCC there was
focusing on phenomena such as service providers intentionally limiting users’ access to the public switched network 
to certain hours each day, for the sole purpose of avoiding classification as a commercial mobile service.  See, e.g., 
CMRS Second Report and Order, 9 FCC Rcd at 1435, para. 55.  That is the apple to the Order’s orange, given that 
the Commission here is attempting to deem two networks and services “interconnected” even though they never 
interconnect.
346
Order at para. 396.
347
Communications Act § 332(d)(2).
49
interconnected with the public switched network (as such terms are defined by regulation by the 
Commission) or service for which a request for interconnection is pending.”
348
This language simply cannot bear the weight the Commission places on it.  The idea that this 
limited interpretative authority means that the Commission has the authority to redefine the traditional 
public switched network as incorporating today’s Internet simply proves too much.  Surely, the FCC 
could not define the public switched network as something that is not the public switched network, 
whether it be an apple or a turnip.  Even when Congress delegates interpretive authority to an agency, that 
agency must abide by traditional norms of statutory interpretation.  So “[w]here Congress has established 
a clear line, the agency cannot go beyond it; and where Congress has established an ambiguous line, the 
agency can go no further than the ambiguity will fairly allow.”
349
All this delegation recognizes is the uncontroversial notion that the Commission has some 
authority to interpret the relevant terms.  Indeed, the Commission previously exercised that limited 
interpretive authority, and that precedent undermines the Commission’s position here.  In the CMRS 
Second Report and Order, for example, the Commission defined “the public switched network” as 
including those switched common carrier services and networks that themselves interconnect with and are 
thus part of the traditional public switched telephone network.
350
  In doing so, the Commission rejected all 
calls to define the terms so expansively as to include the Internet or otherwise fundamentally alter 
them.
351
Relatedly, the Order suggests that the Commission’s decision in the CMRS Second Report and 
Order to codify the term “the public switched network,” rather than the “‘technologically based term 
‘public switched telephone network,’” supports the agency’s position today.
352
  But this claim also misses 
the mark.  The FCC in 1994 was not broadening the scope of “the public switched network” beyond the 
traditional local exchange or interexchange switched network.  Instead, it was making clear that when a 
provider offers a switched common carrier—yet, non-telephone—service that nonetheless interconnects 
with the public switched telephone network, that service cannot avoid treatment as a commercial mobile 
service simply because it is not offering “telephone” service.
353
  The Commission could have had any 
                                                     
348
Communications Act § 332(d)(2).  Compare, too, the parenthetical language in section 332(d)(2) with the parallel 
statutory provisions that nest around the definition of “interconnected service.”  In both section 332(d)(1), which 
defines “commercial mobile service,” and section 332(d)(3), which defines “private mobile service,” the parallel 
parentheticals state “(as defined in section 153 of this title).”  So rather than providing evidence that the phrases are 
not terms of art or that Congress was delegating the FCC unbounded discretion to define the relevant terms, it is 
both a far more modest delegation, as explained above, and one that simply recognizes that Congress itself had not 
codified the relevant terms.
349
City of Arlington, Tex. v. FCC, 133 S.Ct. 1863, 1874 (2013); see also Chevron, U.S.A., Inc. v. Natural Resources 
Defense Council, Inc., 467 U.S. 837, 842 (1984).
350
CMRS Second Report and Order, 9 FCC Rcd at 1436, para. 59.
351
See id. at 1433–34, para. 53.
352
Order at paras. 391, 396, & note 1145 (citing CMRS Second Report and Order, 9 FCC Rcd at 1436, para. 59).
353
See CMRS Second Report and Order, 9 FCC Rcd at 1431–37, paras. 50–60; id. at 1434, para. 54 (“The purpose 
underlying the congressional approach, we conclude, is to ensure that a mobile service that gives its customers the 
capability to communicate to or receive communication from other users of the public switched network should be 
treated as a common carriage offering (if the other elements of the definition of commercial mobile radio service are 
also present[.)]”); id. at 1433, para. 52 (“Several parties caution that making distinctions based on technologies 
could encourage mobile service providers to design their systems to avoid commercial mobile radio service 
regulation.”); see also Wireless Broadband Internet Access Order, 22 FCC Rcd at 5918, para. 45 n.119 (describing 
the Second CMRS Report and Order and stating that, “[i]n fact, the Commission found that ‘commercial mobile 
service’ must still be interconnected with the local exchange or interexchange switched network as it evolves”).
50
number of non-“telephone” switched common carrier services or networks in mind.  This becomes quite 
plain when one reads this portion of the CMRS Second Report and Order in context, including its 
statement that it was adopting an “approach to interconnection with the public switched network [that] is 
analogous to the one” it used previously.
354
  Thus, this precedent undermines, rather than supports, the 
Commission’s view that it can define the term “the public switched network” in a way that includes 
services or networks that are not interconnected with the traditional public switched telephone network.
Indeed, the Commission does not really dispute this point.
355
  The FCC’s discretion to define non-
telephone switched common carrier services as part of the public switched network, when those services 
are interconnected with the network, is of no relevance here because mobile broadband Internet access is 
not such a service.  As explained above—and as the Order never seriously argues otherwise—mobile 
broadband Internet access service itself is not a switched offering that interconnects with the traditional 
public switched network.
356
In sum, it is clear that the Commission lacks authority to define the public switched network as 
including the Internet.
2.  Redefining the Meaning of Functional Equivalent.—Alternatively, the Commission claims that 
it can classify mobile broadband Internet access as a commercial mobile service by finding that it is the 
“functional equivalent” of that service.
357
  But as the Commission’s own decisions make clear, section 
332(d)(3)’s functional equivalency standard does not give the Commission nearly enough leeway to make 
that determination.  Indeed, the Commission does not even attempt to satisfy the relevant standard.  
Instead, it invents an entirely new method of determining functional equivalency that turns the statutory 
framework on its head.
The Commission has an established framework for determining whether a service is the 
functional equivalent of a commercial mobile service.
358
  What is the first tenet of that framework?  A 
                                                     
354
See CMRS Second Report and Order, 9 FCC Rcd at 1432, 1435, paras. 52, 57 (discussing Establishment of 
Satellite Systems Providing International Communications, CC Docket No. 84-1299, Report and Order, 101 FCC 2d 
1046, 1101, para. 114 (1985) (discussing various “switched message services such as MTS, telex, TWX, telegraph, 
teletext, facsimile and high speed switched data services”); see also id.at 1454–59, paras. 100–15 (identifying then-
existing common carrier services).
355
See Order at note 1145 (noting that the Second CMRS Report and Order recognized that non-telephone common 
carrier switched services and networks that themselves interconnect with the traditional public switched network are 
considered part of that network for purposes of section 332).
356
The Order attempts to evade this argument when it contrasts the “millions of subscribers” to mobile broadband 
Internet access service with the fact that private mobile service “includes services not ‘effectively available to a 
substantial portion of the public.’”  Order at para. 398.  But the statute poses a three-part test:  To be a commercial 
mobile service, a service must be provided for a fee, available to the public, and an interconnected service.  So a 
service is a private mobile service if it isn’t interconnected with the public switched network—even if it’s provided 
for a fee and made available to a substantial portion of the public (or even every single American).  Any other 
reading of the statute would render one part of the statutory test surplusage.  Indeed, the Commission has made this 
very point.  See CMRS Second Report and Order, 9 FCC Rcd at 1450–51, paras. 88–93 (concluding that most 
specialized mobile radio services meet the first two parts of the test so that the classification of any particular 
specialized mobile radio service thus “turns on whether they do, in fact, provide interconnected service as defined by 
the statute”).  Again, the problem for the Order is that mobile broadband Internet access service falls squarely into 
the non-interconnected camp and thus cannot be classified as a commercial mobile service.
357
See Order at paras. 404–05.
358
See 47 C.F.R. § 20.9(14); see also CMRS Second Report and Order, 9 FCC Rcd at 1442–48, paras. 71–80 
(adopting the current framework for determining whether a service may be deemed the functional equivalent of a 
commercial mobile service).
51
mobile service that does not meet the literal definition of a commercial mobile service “is presumed to be 
a private mobile service.”
359
What is the one way that this presumption can be overcome?  By showing, through a petition-
based process and specific allegations of fact supported by affidavits, that the mobile service in question 
is the functional equivalent of a commercial mobile radio service based on an evaluation of a variety of 
factors, expressly including:  “consumer demand for the service to determine whether the service is 
closely substitutable for a commercial mobile radio service; whether changes in price for the service
under examination, or for the comparable commercial mobile radio service would prompt customers to 
change from one service to the other; and market research information identifying the targeted market for 
the service under review.”
360
So does the Order apply the required presumption when determining whether mobile broadband 
Internet access service is the functional equivalent of commercial mobile service?  No.  Does the Order 
evaluate the required factors?  No.  Did the Commission provide APA notice before jettisoning this 
required framework?  Of course not.
And why does the Commission fail to do any of this?  The answer to that is clear.  Because there 
are no facts in the record—let alone ones supported by affidavit—that could overcome the presumption or 
otherwise show that the two services are close substitutes.  The Commission doesn’t apply the law 
because the law prevents it from reaching the outcome demanded by the White House.
While not disputing any of this directly, the Order suggests that the two services are useful as 
substitutes because consumers of mobile broadband Internet access service can use VoIP services to place 
calls to the public switched telephone network.
361
  But at most, that observation goes to whether VoIP 
services are the functional equivalent of commercial mobile services.  It has nothing to do with whether 
the separate mobile broadband Internet access service is.
362
The fact that mobile broadband Internet access service does not meet the functional equivalency 
test is not just some quirk in the law.  The FCC has been clear that, in light of Congress’s determinations 
in section 332, “very few mobile services that do not meet the definition of CMRS will be a close 
substitute for a commercial mobile radio service.”
363
  But the Commission’s new test for determining 
functional equivalency, which consist of just one question—namely, whether the new service “enables 
ubiquitous access to the vast majority of the public”—completely eviscerates the statutory scheme.
364
  
Sure, it’s more efficient to ask just one question, rather than applying the required framework.  And it 
does make it easier to reach predetermined outcomes.  But it upends the statutory scheme Congress put in 
                                                     
359
See 47 C.F.R. § 20.9(14)(i).
360
See 47 C.F.R. § 20.9(14)(ii)(B).
361
See Order at paras. 400–01, 405, 407.
362
That the FCC classifies a service based on the nature of the service itself is well established.  The Commission 
has found as much in this very context.  See, e.g., Wireless Broadband Internet Access Order, 22 FCC Rcd at 5917–
18, paras. 45–46 (recognizing that the regulatory classification of VoIP services is irrelevant to the regulatory 
classification of the separate mobile broadband Internet access service); see also Time Warner Cable Request for 
Declaratory Ruling that Competitive Local Exchange Carriers May Obtain Interconnection under Section 251 of the 
Communications Act of 1934, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers, 
WC Docket No. 06-55, Memorandum Opinion and Order, 22 FCC Rcd 3513, 3520–21, paras. 15–16 (Wireline 
Comp. Bur. 2007) (noting the “regulatory classification of the [VoIP] service provided to the ultimate end user has 
no bearing on” the regulatory status of the entities “transmitting [the VoIP] traffic”).
363
CMRS Second Report and Order, 9 FCC Rcd at 1447, para. 79.
364
See Order at para. 407.
52
place.  And it’s also impermissible here because the Commission did not provide notice that it might 
abandon that framework.
3.  Statutory Contradiction.—Finally, the Commission trots out what it says is an independent 
basis for reclassifying mobile broadband Internet access as a section 332 commercial mobile service.
365
The Commission says that it must be able to reclassify the service because, if it were otherwise, there 
would be a “statutory contradiction” between section 332(d)(2), which prohibits the Commission from 
applying common carrier requirements to private mobile services, and the Commission’s decision today 
to treat mobile broadband Internet access service as a telecommunications service subject to common 
carriage requirements.
366
But this argument is just silly.  The Commission is simply complaining that it must be able to 
interpret a statutory provision one way because otherwise it will not able to interpret a second statutory 
provision as it would like.  It is like saying that we must call all dogs “cats” because, if we did not, we 
could not declare dogs to be feline.  Any contradiction here does not lie with the statute.  Rather, it is the 
product of the Commission’s attempt to twist the statutory language into a pretzel in order to advance a 
preferred policy outcome.  But no matter how the Commission tries to manipulate the statute, one fact 
remains:  Section 332 prevents the Commission from treating providers of mobile broadband Internet 
access service as providers of telecommunications services subject to common carriage requirements.
367
C.
The Commission also relies on section 706 of the Telecommunications Act, claiming that 
Congress expressly delegated authority to the FCC through this provision.
368
  This is simply wrong.  The 
text, statutory structure, and legislative history all make clear that Congress intended section 706 to be 
hortatory—not delegatory—in nature.
In pertinent part, subsections (a) and (b) of section 706 read:
(a) . . . The Commission and each State commission with regulatory jurisdiction over 
telecommunications services shall encourage the deployment on a reasonable and timely 
basis of advanced telecommunications capability to all Americans . . . by utilizing . . . 
price cap regulation, regulatory forbearance, measures that promote competition in the 
local telecommunications market, or other regulating methods that remove barriers to 
infrastructure investment.
(b) . . . If the Commission’s determination [of whether advanced telecommunications 
capability is being deployed to all Americans in a reasonable and timely fashion] 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.
369
                                                     
365
See Order at para. 403.
366
See Order at para. 403 (citing Communications Act § 332 (prohibiting the common carrier treatment of private 
mobile service providers) and Communications Act § 3 (requiring the common carrier treatment of providers of 
telecommunications services)).
367
Recall, too, that a provider of private mobile service “shall not . . . be treated as a common carrier for any 
purpose.”  Communications Act § 332(c)(2).  One of those purposes is certainly treating it as such for the purpose of 
avoiding manufactured “statutory contradictions.”
368
See, e.g., Order at paras. 275–82.
369
Telecommunications Act § 706(a)–(b).
53
Although each of these subsections suggests a call to action (“shall encourage,” “shall take 
immediate action”), neither reads like nor is a delegation of authority.  For one, neither subsection 
expressly authorizes the FCC to engage in rulemaking.  Congress knows how to confer such authority on 
the FCC and has done so repeatedly:  It has delegated rulemaking authority to the FCC over both specific 
provisions of the Communications Act (e.g., “[t]he Commission shall prescribe regulations to implement 
the requirements of this subsection”
370
or “the Commission shall complete all actions necessary to 
establish regulations to implement the requirements of this section”
371
), and it has done so more generally 
(e.g., “[t]he Commission[] may prescribe such rules and regulations as may be necessary in the public 
interest to carry out the provisions of th[e Communications] Act”
372
).  Congress did not do either in 
section 706.
For another, neither subsection expressly authorizes the FCC to prescribe or proscribe the 
conduct of any party.  Again, Congress knows how to empower the Commission to prescribe conduct 
(e.g., “the Commission is authorized and empowered to determine and prescribe what will be the just and 
reasonable charge”
373
) and to proscribe conduct (e.g., “the Commission is authorized and empowered . . . 
to make an order that the carrier or carriers shall cease and desist”
374
).  And again, Congress has 
repeatedly empowered the FCC to direct the conduct of particular parties (e.g., “[t]he 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,”
375
or “the Commission shall have the power to require by 
subpoena the attendance and testimony of witnesses”
376
).  Congress did not do any of this in section 706.
For yet another, neither subsection expressly authorizes the FCC to enforce compliance by 
ordering payment for noncompliance.  Where Congress has authorized the Commission to impose 
liability it has always done so clearly:  For forfeitures, the Communications Act directs that “[a]ny person 
who is determined by the Commission . . . to have . . . failed to comply with any of the provisions of this 
Act . . . shall be liable to the United States for a forfeiture penalty”
377
and “[t]he amount of such forfeiture 
penalty shall be assessed by the Commission . . . by written notice.”
378
  And for other liabilities, the 
Communications Act directs that “the Commission shall make an order directing the carrier to pay to the 
complainant the sum to which he is entitled.”
379
The lack of express authority to issue rules, order conduct, or enforce compliance should be 
unsurprising, however, since section 706’s subsections lay out precisely how Congress expected the FCC 
to “encourage . . . deployment” and “take action”:  Congress expected the FCC to use the authority it had 
                                                     
370
Communications Act § 227(b)(2).
371
Communications Act § 251(d)(1).
372
Communications Act § 201(b) (“The Commissioner [sic] may prescribe such rules and regulations as may be 
necessary in the public interest to carry out the provisions of this Act.”); see also Communications Act § 303(r) 
(“Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest, or 
necessity requires shall— . . . [m]ake such rules and regulations and prescribe such restrictions, not inconsistent with 
law, as may be necessary to carry out the provisions of this Act . . . .”).
373
Communications Act § 205(a).
374
Communications Act § 205(a).
375
Communications Act § 213(b).
376
Communications Act § 409(e).
377
Communications Act § 503(b)(1).
378
Communications Act § 503(b)(2)(E).
379
Communications Act § 209.
54
given the agency elsewhere.  The FCC already had the authority to adopt “price cap regulation” since it 
had started converting carriers from rate-of-return regulation to price-cap regulation in the early 1990s.
380
  
The Telecommunications Act established the FCC’s “regulatory forbearance” authority.
381
  The 
Telecommunications Act also authorized the FCC to “remove barriers to infrastructure investment,” 
specifically barriers to entry created by state or local laws,
382
and instructed it to identify and eliminate 
market entry barriers.
383
  And as for “promoting competition in the telecommunications market,” the 
Telecommunications Act added a whole second part to Title II of the Communications Act, titling it 
“Development of Competitive Markets.”
384
  In other words, Congress did in fact “invest[] the 
Commission with the statutory authority to carry out those acts” described in section 706
385
—it just did so 
through provisions other than section 706.
The structure of federal law confirms this reading.  Although Congress directed that many 
provisions of the Telecommunications Act be inserted into the Communications Act,
386
section 706 was 
not one of them.  Instead, it was left as a freestanding provision of federal law.
387
  As such, the provisions 
of the Communications Act that grant rulemaking authority “under this Act” (like section 201(b)), that 
grant prescription-and-proscription authority “[f]or purposes of this Act” (like section 409(e)), and that 
grant enforcement authority for violations of “this Act” (like section 503) simply do not apply to section 
706 of the Telecommunications Act.  Indeed, the so-called subject-matter jurisdiction of the FCC under 
section 2 applies, by its own terms, only to “provisions of this Act”
388
—and so the “most important[]” 
limit the Verizon court thought applied to section 706 does not in fact exist.
389
  In other words, the 
statutory superstructure that normally undergirds Commission action just does not exist for section 706 of 
the Telecommunications Act.
What is more, reading section 706 as a grant of authority outside the bounds of the 
Communications Act yields absurd results.  As the Commission recognized in the Advanced Services 
Order with respect to “regulatory forbearance,” reading section 706 as an “independent grant of 
authority . . . would allow us to forbear from applying” certain provisions in the Act even when section 10 
                                                     
380
Policy and Rules Concerning Rates for Dominant Carriers, CC Docket No. 87-313, Second Report and Order, 5 
FCC Rcd 6786 (1990).
381
Telecommunications Act § 401 (titled “Regulatory Forbearance” and inserting section 10 into Title I of the 
Communications Act).
382
Telecommunications Act § 101 (inserting section 253 into Title II of the Communications Act).
383
Telecommunications Act § 101 (inserting section 257 into Title II of the Communications Act).
384
Telecommunications Act § 101 (inserting Part II, §§ 251–61, into Title II of the Communications Act).
385
Verizon v. FCC, 740 F.3d 623, 638 (D.C. Cir. 2014) (quoting Open Internet Order, 25 FCC Rcd at 17969, para. 
120).
386
Telecommunications Act § 1(b) (“[W]henever in this Act an amendment or repeal is expressed in terms of an 
amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or 
other provision of the Communications Act of 1934 (47 U.S.C. 151 et seq.).”); see also Telecommunications Act 
§ 101 (“Establishment of Part II of Title II. (a) Amendment.—Title II is amended by inserting after section 229 (47 
U.S.C. 229) the following new part: . . . .”).  Notably, all of the provisions at issue in the Supreme Court case AT&T 
v. Iowa Utils. Bd. were in fact inserted into the Communications Act, and thus the Court could plausibly claim that 
“Congress expressly directed that the 1996 Act . . . be inserted into the Communications Act.”  AT&T v. Iowa Utils. 
Bd., 525 U.S. 366, 377 (1999).
387
For other examples, see Telecommunications Act §§ 202(h), 704(c).
388
Communications Act § 2(a).
389
Verizon v. FCC, 740 F.3d 623, 640 (D.C. Cir. 2014).
55
would not let us do so.
390
  That same logic applies to every “regulating method” specified in section 706.  
If Congress had intended to grant the FCC almost limitless authority for “price cap regulation,” 
“removing barriers,” or “promoting competition,” what was the point of specifying limited authority in 
the Telecommunications Act’s actual amendments to the Communications Act?
391
And the problems proliferate as you dig into each subsection.  Subsection (a) is directed not just 
at the FCC but also to “each State commission with regulatory jurisdiction over telecommunications 
services.”
392
  So whatever authority subsection (a) grants the FCC, it also grants state commissions.  Such 
coterminous authority is a statutory oddity to say the least.  The Communications Act draws lines 
between interstate and intrastate regulatory authority.
393
  It empowers States to act but reserves authority 
for the FCC when they fail to do so.
394
  It authorizes the FCC to preempt state authority.
395
  And it even 
authorizes States to preempt the FCC.
396
  But nowhere does the Communications Act contemplate state 
action coterminous with, or even at cross-purposes with, the FCC.  And it is strange to think that a state 
commission could forbear from the federal statutory scheme or price regulate broadband Internet access 
service so long as it thought doing so would encourage broadband deployment.
Perhaps recognizing the problems such a reading would create, the Order does not read the 
authority of state commissions this way—far from it.  Instead, the Order suggests that States cannot 
regulate broadband Internet access service because that service is “jurisdictionally interstate for regulatory 
purposes”
397
and that the Commission will preempt States that impose “obligations on broadband service 
that are inconsistent with the carefully tailored regulatory scheme.”
398
  In other words, the Order seems to 
suggest that section 706(a) gives state commissions no authority over broadband (or “advanced 
telecommunications capability” to use the statutory term) at all!
399
  But the plain text of the statute does 
                                                     
390
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, 24046, para. 73 (1998) 
(Advanced Services Order).
391
The Verizon court asked the wrong question when it noted that it “might well hesitate to conclude that Congress 
intended to grant the Commission substantive authority in section 706(a) if that authority would have no limiting 
principle.”  Verizon v. FCC, 740 F.3d 623, 639 (D.C. Cir. 2014).  The question is not whether section 706 of the 
Telecommunications Act contains some “intelligible principle” and thus does not violate the non-delegation 
doctrine. Cf. Whitman v. American Trucking Associations, 531 U.S. 457, 472 (2001).  Instead, the question is one of 
congressional intent:  Did Congress really intend to put specific limits on the Commission’s forbearance authority in 
one place (section 10 of the Communications Act) only to largely eliminate them in another (section 706 of the 
Telecommunications Act)?  Such an interpretation doesn’t make sense.
392
Telecommunications Act § 706(a).
393
See, e.g., Communications Act § 2(a) (“The provisions of this Act shall apply to all interstate and foreign 
communication . . . .”); § 2(b) (“[N]othing in this Act shall be construed to apply or to give the Commission 
jurisdiction with respect to . . . intrastate communication service . . . .”).
394
See Communications Act §§ 214(e)(6), 252(e).
395
See Communications Act §§ 10(e), 253(d).
396
See Communications Act § 224(c).
397
Order at para. 431.
398
Order at para. 433.
399
To be fair, the Order suggests that States might have some role to play, at least with data collection, see Order at 
notes 708 & 1276, but such a role hardly squares with hardy “regulating methods” like “price cap regulation” and 
“regulatory forbearance” that the Commission claims for itself.
56
not permit the Commission to have it both ways and invent a scheme that has no basis in the text of the 
statute.  Either subsection (a) delegates authority to the FCC and the state commissions or it does not.
Subsection (b) creates other problems.  That subsection is triggered only if the FCC determines 
that broadband is not being reasonably and timely deployed to all Americans in its annual report.  So what 
happens when the determination is affirmative?  Poof—it’s gone.
The consequences of such a light-switch delegation of authority are hard to fathom.  One would 
assume that once the delegation switched off, any adjudications or enforcement actions being taken by the 
FCC under that subsection would have to be dismissed, since we’d have lost the authority to prosecute 
them.  But if we’ve preempted a state law using subsection (b), would it still remain preempted?  If we’ve 
forborne from federal law using subsection (b), would we then need to start enforcing it again?  Or if 
we’ve adopted rules using subsection (b), would they remain on the books—unenforceable—until a 
negative determination is again reached?  Could we even repeal rules passed using subsection (b) during a 
period in which subsection (b) has not been triggered?  And how would our authority change if, as 
happened last year, the FCC failed to issue a timely determination under section 706(b)?
Unsurprisingly, the Order does not attempt to answer these questions.
400
  Nor could it.  Absurd 
results lie behind every possible answer premised on subsection (b) being an independent grant of 
authority.
Lastly, the history of section 706 confirms its hortatory nature.  For years after 1998’s Advanced 
Services Order, the Commission consistently interpreted the section to direct the agency to “use, among 
other authority, our forbearance authority under section 10(a) to encourage the deployment of advanced 
services.”
401
  And so the Commission has consulted section 706 in resolving one forbearance petition
402
after another
403
after another.
404
  The Commission has also looked to section 706 when employing its 
authorities under the Communications Act to promote local competition
405
and to remove barriers to 
                                                     
400
Relying on a statement contained in a dissenting opinion by a U.S. Supreme Court Justice, the Order speculates 
that “Commission actions adopted pursuant to a negative section 706(b) determination would not simply be swept 
away by a future positive section 706(b) finding.”  Order at note 714.  But what authority would the Commission 
have to enforce a section 706(b) rule without section 706(b) authority?  Indeed, if Congress gave the Federal 
Emergency Management Agency (FEMA) authority to act during a hurricane, would anyone think that FEMA could 
continue that course once the storm had passed, sunny skies had returned, and recovery efforts were over?  Of 
course not.  So too here.  But more to the point, even asking this question is sure to trap the agency in the labyrinth 
of section 706(b)’s on-off authority; the only way to escape is not to enter.  Here, that means not interpreting section 
706 to provide the Commission with authority in the first place.
401
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, 24047, para. 77 (1998).
402
Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan 
Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415, 19469, para. 107 
(2005), aff’d by Qwest Corp. v. FCC, 482 F.3d 471 (D.C. Cir. 2007).
403
Petition of ACS of Anchorage, WC Docket No. 06-109, Memorandum Opinion and Order, 22 FCC Rcd 16304, 
16356, para. 118 (2007).
404
Petition of the Embarq Local Operating Companies for Forbearance et al., WC Docket No. 06-147, 
Memorandum Opinion and Order, 22 FCC Rcd 19478, 19503–04, para. 46 (2007), aff’d by Ad Hoc 
Telecommunications Users Committee v. FCC, 572 F.3d 903 (D.C. Cir. 2009).
405
Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, CC Docket No. 96-
98, Third Report and Order and Fourth Further Notice of Proposed Rulemaking, 15 FCC Rcd 3696, 3840, para. 317 
(1999) (“Our overriding objective, consistent with the congressional directive in section 706, is to ensure that 
advanced services are deployed on a timely basis to all Americans so that consumers across America have the full 
benefits of the ‘Information Age.’”); Vonage Holdings Corporation Petition for Declaratory Ruling Concerning an 
(continued…)
57
infrastructure investment (such as the Commission’s authority over pole attachments).
406
  In other words, 
our own history shows that we can meet section 706’s goals without relying on it as an independent grant 
of authority.
Section 706’s legislative history clinches the point.  Recall that the Verizon court looked to the 
Senate Report’s description of the provision as a “necessary fail-safe to ensure that the bill achieves its 
intended infrastructure objective.”
407
  That was a mistake because the provision described in the Senate 
Report was not the section 706 that Congress enacted.  When the Senate passed in 1995 the bill that 
became the Telecommunications Act of 1996, that legislation contained a precursor to section 706(b) that 
authorized the FCC to “preempt State commissions that fail to act to ensure [the] availability [of advanced 
telecommunications capability to all Americans].”
408
  In other words, the Senate version would have let 
the FCC step into the shoes of the state commissions and exercise their authority under federal law if they 
failed to act.  That’s a “fail-safe.”  But the enacted version contained, as the Conference Report dryly put 
it, “a modification” to that section:  This preemptory language was excised.
409
  In other words, Congress 
contemplated giving the FCC fail-safe authority in section 706, but then expressly decided not to do so.
Whether one looks at the statute’s text, structure, or history, only one conclusion is possible:  
Congress did not delegate substantive authority to the FCC in section 706 of the Telecommunications 
Act.  Instead, that statutory provision is a deregulatory admonition.  Accordingly, the agency’s attempt to 
adopt these Part 8 rules under section 706 must fail.
D.
The forbearance section of the Order most clearly reveals that the Commission’s decision today 
is driven neither by the law nor the facts but rather by the need to reach certain predetermined policy 
outcomes.  Before the forbearance section, the Commission paints a dark and dreary portrait of the 
broadband marketplace.  It is one where broadband providers “hold all the tools necessary to deceive 
consumers, degrade content, or disfavor the content that they don’t like.”
410
  It is one where consumers 
largely have no “meaningful alternative broadband options,” and “45 percent of households have only 
single provider option for these services.”
411
After reading such bleak pronouncements, anyone familiar with the Commission’s forbearance 
precedents and the Act’s statutory forbearance framework would approach the forbearance section with a 
sense for foreboding.  How is the Commission possibly going to grant the amount of forbearance 
promised earlier in the document?  How can it create a “Title II tailored for the 21
st
century”?
412
  The 
(Continued from previous page)                                                           
Order of the Minnesota Public Utilities Commission, WC Docket No. 03-211, Memorandum Opinion and Order, 19 
FCC Rcd 22404, 22426–27, paras. 36–37 (2004).
406
Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, WC Docket No. 07-245, 
GN Docket No. 09-51, Report and Order and Order on Reconsideration, 26 FCC Rcd 5240, 5317, 5330, paras. 173, 
208 (2011); Implementation of Section 224 of the Act; Amendment of the Commission’s Rules and Policies 
Governing Pole Attachments, WC Docket No. 07-245, RM-11293, RM-11303, Notice of Proposed Rulemaking, 22 
FCC Rcd 20195, 20209, para. 36 (2007).
407
S. Rep. No. 104-23 at 50–51 (1995); see Verizon v. FCC, 740 F.3d 623, 639 (D.C. Cir. 2014).
408
See S. 652 § 304(b) (104th Cong. 1995) (contained in “Title III—An End to Regulation”).
409
S. Rep. No. 104-230 at 210 (1996).
410
Order at para. 8; see also Order at paras. 78–101.
411
Order at note 134; see also Order at para. 81.
412
Order at para. 38.
58
answer?  By inventing out of whole cloth a new method of conducting a forbearance analysis that bears 
little resemblance to either the terms of the Act or the Commission’s precedents.
Relying on dicta from the D.C. Circuit, the Order claims “‘significant, albeit not unfettered, 
authority and discretion to settle on the best regulatory or deregulatory approach to broadband.’”
413
Exercising that apparent discretion, the Order first labels a bevy of Title II requirements the “core 
broadband Internet access service requirements” and applies them to the service.  It then “grant[s] 
extensive forbearance” from other Title II requirements based on a predictive judgment, but it does so 
without ever finding that there is competition sufficient to ensure just and reasonable rates and 
practices.
414
  That is not what the law allows.
In section 10, Congress set forth the three-part test for forbearance.  First, we must find that 
“enforcement of [a] regulation or provision [of the Act] is not necessary to ensure that the charges, 
practices, classifications, or regulations . . . are just and reasonable and are not unjustly or unreasonably 
discriminatory.”
415
  Next, we must find that “enforcement of such regulation or provision is not necessary 
for the protection of consumers.”
416
  And finally, we must “consider whether forbearance from enforcing 
the provision or regulation will promote competitive market conditions, including the extent to which 
such forbearance will enhance competition among providers of telecommunications services,”
417
and 
determine whether forbearance is “consistent with the public interest.”
418
  Section 332(c)(1) lays out 
largely the same criteria with respect to commercial mobile services.
419
And there is no question how our precedents apply the statutory forbearance standard.  Take just 
the subset of our forbearance precedents that involve forbearance from economic regulations—such as ex 
ante rate regulation under section 201, tariffing under section 203, rate prescription under section 205, 
interconnection, resale, and unbundling regulation under section 251, or interconnection, resale, and 
unbundling regulation under section 271.  In every case where the Commission has eliminated economic 
regulations, it has characterized market competition as the determining factor in assessing whether 
forbearance was appropriate.
420
  As the Commission said not so long ago:  “[I]n the context of its section 
10(a)(1) analysis, ‘competition is the most effective means of ensuring that . . . charges, practices, 
classifications, and regulations . . . are just and reasonable, and not unreasonably discriminatory.’”
421
                                                     
413
Order at para. 437 (quoting Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C. 
Cir. 2009)).
414
Order at para. 458.
415
Communications Act § 10(a)(1).
416
Communications Act § 10(a)(2).
417
Communications Act § 10(b).
418
Communications Act § 10(a)(3).
419
Communications Act § 332(c)(1)(A), (c)(1)(C).
420
Although I focus here on precedent related to section 10(a)(1)’s criterion for forbearance, our precedent uses this 
same analysis when examining whether forbearing from an economic regulation would comply with section 
10(a)(2)’s focus on protecting consumers.
421
Petition for Declaratory Ruling to Clarify 47 U.S.C. § 572 in the Context of Transactions Between Competitive 
Local Exchange Carriers and Cable Operators; Conditional Petition for Forbearance From Section 652 of the 
Communications Act for Transactions Between Competitive Local Exchange Carriers and Cable Operators, WC 
Docket No. 11-118, Order, 27 FCC Rcd 11532, 11544, para. 27 (2012) (quoting Petition of U S WEST 
Communications Inc. for a Declaratory Ruling Regarding the Provision of National Directory Assistance; Petition 
of U S WEST Communications, Inc., for Forbearance; The Use of N11 Codes and Other Abbreviated Dialing 
(continued…)
59
So when the Commission forbore from applying economic regulations to commercial mobile 
services in 1994 (under section 332(c)(1)(A)), it concluded that “the most prudent approach for us to 
follow in reaching decisions regarding forbearance in this Order must involve an examination of the 
prevailing climate of competition.”
422
  That is because “in a competitive market, market forces are 
generally sufficient to ensure the lawfulness of rate levels, rate structures, and terms and conditions of 
service set by carriers who lack market power.”
423
  And so the FCC ultimately concluded that “the record 
does establish that there is sufficient competition in this marketplace to justify forbearance from tariffing 
requirements.”
424
And when the Commission used forbearance to detariff the long-distance telephone market in 
1996, market forces and competition lay at the center of the analysis:  “Just as we believe that competition 
is sufficient to ensure that nondominant interexchange carriers’ charges for interstate, domestic, 
interexchange services are just and reasonable, and not unreasonably discriminatory, and to protect 
consumers, we believe that competitive forces will ensure that nondominant carriers’ non-price terms and 
conditions are reasonable.”
425
And the Commission has analyzed competition every time it has granted relief from economic 
regulations for dominant carriers.  In the Qwest-Omaha Forbearance Order, the Commission reviewed 
the local market and determined that “sufficient facilities-based competition for local exchange and 
exchange access services exists in certain of Qwest’s Omaha MSA wire center service areas to justify 
forbearance relief.”
426
  In the ACS of Anchorage Dominance Forbearance Order, the Commission could 
only find “that enforcement of dominant carrier rate-of-return regulations and certain related tariffing and 
pricing rules is not necessary” “[b]ased on the significant competition ACS faces for both mass market 
and enterprise switched access services.”
427
  In the Qwest-Terry Forbearance Order, the Commission 
noted the “showing of competition ensures that Qwest is unable to implement charges, practices, 
(Continued from previous page)                                                           
Arrangements, CC Docket Nos. 97-172, 92-105, Memorandum Opinion and Order, 14 FCC Rcd 16252, 16270, 
para. 31 (1999)).
422
CMRS Second Report and Order, 9 FCC Rcd at 1467, para. 136.
423
Id. at 1478, para. 173.
424
Id. at 1478, para. 175.
425
Policy and Rules Concerning the Interstate, Interexchange Marketplace; Implementation of Section 254(g) of the 
Communications Act of 1934, as amended, CC Docket No. 96-61, Second Report and Order, 11 FCC Rcd 20730, 
20752, para. 42 (1996).  For those not steeped in Commission arcana, an interexchange carrier is a long-distance 
carrier, and all interstate, interexchange carriers had been determined to be nondominant at the time of this decision.
426
Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan 
Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415, 19447, para. 64 
(2005).
427
Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the Communications Act of 1934, as amended (47 
U.S.C. § 160(c)), for Forbearance from Certain Dominant Carrier Regulation of Its Interstate Access Services, and 
for Forbearance of Title II Regulation of Its Broadband Services, in the Anchorage, Alaska, Incumbent Local 
Exchange Carrier Study Area, Memorandum Opinion and Order, WC Docket No. 06-109, Memorandum Opinion 
and Order, 22 FCC Rcd 16304, 16330–31, para. 58 (2007); see also Petition of ACS of Anchorage, Inc. Pursuant to 
Section 10 of the Communications Act of 1934, as Amended, for Forbearance from Sections 251(c)(3) and 252(d)(1) 
in the Anchorage Study Area, WC Docket No. 05-281, Memorandum Opinion and Order, 22 FCC Rcd 1958, 1959, 
para. 1 (2007) (eliminating other economic obligations “under comparable competitive conditions”).
60
classifications, or regulations that are not just and reasonable or that are unjustly or unreasonably 
discriminatory in this exchange.”
428
And the Commission has not hesitated to find that a lack of competition makes forbearance from 
economic regulations inappropriate.  In the Verizon 6 MSA Forbearance Order, the Commission denied 
forbearance because it found that “the evidence of competition in this record is insufficient . . . to ensure 
that, in each of the 6 MSAs, charges, practices, classifications, or regulations for or in connection with 
those services are just and reasonable and are not unjustly or unreasonably discriminatory.”
429
  In the
Qwest 4 MSA Forbearance Order, the Commission denied forbearance because “there is inadequate 
evidence of facilities-based mass market competition and we are unable to conclude from the evidence in 
the record that Qwest no longer holds a significant market share of the services at issue.”
430
  And in the 
Qwest-Phoenix Forbearance Order, the Commission denied forbearance because the evidence “fails to 
demonstrate that there is sufficient competition to ensure that, if we provide the requested relief, Qwest 
will be unable to raise prices, discriminate unreasonably, or harm consumers.”
431
What I cannot find—and what our precedent does not countenance—is any instance where the 
FCC eliminated economic regulations without first performing any market analysis or finding 
competition sufficient to constrain anticompetitive pricing and behavior.
432
  It’s easy to see why.  
Economic regulations are designed to ensure just and reasonable rates and practices.  Some do it directly 
by capping rates,
433
by requiring rates to be tariffed and approved by the FCC,
434
or by letting the 
Commission prescribe a rate for a particular carrier.
435
  Others do it indirectly by generating competition, 
such as through mandating resale or network element unbundling.
436
  And so the FCC has not and, under 
                                                     
428
Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from Resale, Unbundling and Other Incumbent Local 
Exchange Requirements Contained in Sections 251 and 271 of the Telecommunications Act of 1996 in the Terry, 
Montana Exchange, WC Docket No. 07-9, Memorandum Opinion and Order, 23 FCC Rcd 7257, 7264, para. 13 
(2008).
429
Petitions of Verizon Telephone Companies for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Boston, New 
York, Philadelphia, Pittsburgh, Providence and Virginia Beach Metropolitan Statistical Areas, Inc., WC Docket No. 
06-172, Memorandum Opinion and Order, 22 FCC Rcd 21293, 21311, para. 33 (2007), remanded, Verizon Tel. Cos. 
v. FCC, 570 F.3d 294 (D.C. Cir. 2009).
430
Petitions of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Denver, Minneapolis-St. 
Paul, Phoenix, and Seattle Metropolitan Statistical Areas, WC Docket No. 07-97, Memorandum Opinion and Order, 
23 FCC Rcd 11729, 11752, para. 31 (2008).
431
Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona 
Metropolitan Statistical Area, WC Docket No. 09-135, Memorandum Opinion and Order, 25 FCC Rcd 8622, 8623, 
para. 2 (2010).
432
Rather than citing such precedent, the Order attempts to sweep aside all competition-focused precedent by 
claiming it was “responding to arguments that competition was sufficient.”  Order at note 1307.  That’s no 
coincidence.  Until this Order, no Commission has ever found that it could forbear from economic regulation absent 
competition—and so every Commission order and every commenter has focused on the presence or absence of 
competition.
433
See, e.g., Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Report and Order and Further 
Notice of Proposed Rulemaking, 28 FCC Rcd 14107 (2013) (establishing price caps for interstate inmate calling 
services under section 201 of the Communications Act), pets. for review pending and pets. for stay granted in part 
sub nom. Securus Techs. v. FCC, No. 13-1280 (D.C. Cir. Jan. 13, 2014).
434
Communications Act § 203.
435
Communications Act § 205.
436
Communications Act § 251(b)(1), (c)(3)–(4).
61
the statute, cannot forbear from any economic regulation on a whim or a lark.  Instead, it must identify 
something else that will constrain pricing, and that something else has always been—and can only be—
competition.
But in forbearing from economic regulations in today’s Order, the Commission doesn’t just fail 
to find sufficient competition.  It goes so far as to find that competition is lacking in the market for 
broadband Internet access service:  Competition “appears to be limited in key respects,”
437
with 
consumers facing “high switching costs . . . when seeking a new service,”
438
and “broadband providers 
hav[ing] significant bargaining power in negotiations with edge providers and end users.”
439
  Indeed, 
“meaningful alternative broadband options may be largely unavailable to many Americans . . . .  When 
we look to the new standard articulated in the Broadband Progress Report, . . . 45 percent of households 
have only single provider option for these services.”
440
  If that’s truly how the FCC sees the market, it 
should go ahead and use the m-word—monopoly—and rely on the economic regulations of the 
Communications Act that Congress designed to prevent a monopolist (back in 1934, it was Ma Bell) from 
exercising market power to the detriment of consumers.  I do not see how the Commission could possibly 
forbear from economic regulations while at the same time finding that competition is so limited or non-
existent.  Yet the Order does just that.
And lest there be any doubt that the Commission’s analysis here marks a dramatic departure from 
that employed in prior forbearance decisions, consider this.  In just 109 paragraphs, the Commission 
purports to analyze whether to forbear from every statutory provision and regulation applicable to Title II 
services on a nationwide basis for every broadband Internet service provider in the country.
441
  That is 
substantially shorter than the 199 paragraphs than it took for the Commission to analyze whether to 
forbear from applying a subset of Title II economic regulations to a single company in just two markets:  
Omaha (99 paragraphs) and Phoenix (100 paragraphs).
442
The Order offers several justifications for its approach; none are convincing.  First, it notes “the 
Commission has in the past granted forbearance . . . where it found the application of other requirements 
(rather than marketplace competition) adequate to satisfy the section 10(a) criteria.”
443
  And that’s true but 
only in a sense that’s not relevant to today’s item.
The FCC has used forbearance to make adjustments to ex ante rate regulation without looking to 
marketplace competition.  For example, in the cited Iowa Telecom Forbearance Order, the Commission 
granted forbearance so that a dominant carrier could move from one form of ex ante rate regulation (a 
price cap) to another (a forward-looking cost study).
444
  In the cited SMS/800 Refund Forbearance Order, 
                                                     
437
Order at para. 501.
438
Order at para. 81.
439
Order at para. 80.
440
Order at note 134.
441
Order at paras. 434–542.
442
Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan 
Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415 (2005); Petition of 
Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona Metropolitan 
Statistical Area, WC Docket No. 09-135, Memorandum Opinion and Order, 25 FCC Rcd 8622 (2010).
443
Order at para. 439; see also Order at note 1305 (citing cases).
444
Petition for Forbearance of Iowa Telecommunications Services, Inc. d/b/a/ Iowa Telecom Pursuant to 47 U.S.C.
§ 160(c) from the Deadline for Price Cap Carriers to Elect Interstate Access Rates Based on The CALLS Order or a 
Forward Looking Cost Study, CC Docket No. 01-331, Order, 17 FCC Rcd 24319, 24325–26, paras. 18–19 (2002).
62
the Commission granted forbearance so that several dominant carriers could issue a one-time refund to 
their customers while leaving all other ex ante rate regulation in place.
445
  And in the cited USTelecom 
Forbearance Order, the Commission eliminated several accounting and reporting requirements while 
otherwise leaving intact all ex ante rate regulation and unbundling requirements.
446
And it’s true that the FCC has used forbearance to eliminate non-economic regulations without 
looking to marketplace competition.  For example, in the cited Foreign Ownership Forbearance Order, 
the Commission found “no evidence that the foreign ownership of a common carrier licensee, in and of 
itself, is directly relevant” to whether rates and practices are “just and reasonable and not unjustly or 
unreasonably discriminatory.”
447
  And in the cited USTelecom Forbearance Order, the Commission 
eliminated several noneconomic regulations, such as a requirement to keep a paper copy of a long-
distance carrier’s “rates, terms, and conditions available in at least one location during business hours.”
448
But merely adjusting economic regulations while keeping most in place or eliminating 
noneconomic regulations—as the Commission did in each of these cases—without conducting a 
competitive analysis is hardly the same as what the Order purports to do.  Namely, the Order eliminates 
certain economic regulations entirely without finding competition sufficient to meet the concerns of 
section 10(a)(1).  That the Commission has never done.
Second, the Order cites its “predictive judgment that the statutory and regulatory requirements 
that remain”—particularly section 201 and 202 of the Act—“are sufficient” to ensure just and reasonable 
rates and practices.
449
  What’s the basis for this predictive judgment?  The Order doesn’t say, although it 
goes out of its way to “reject suggestions that market forces will be sufficient to ensure that providers of 
broadband Internet access service do not act in a manner contrary to the public interest.”
450
This is precisely the opposite tack of previous FCC forbearance decisions.  The Commission has 
reserved the “regulatory backstop” of sections 201 and 202 as a supplement to competition, not a 
replacement for it.  As the Commission’s CMRS Second Report and Order put it:  Even though “there is 
sufficient competition in this marketplace to justify forbearance,” “the continued applicability of Sections 
201, 202, and 208 will provide an important protection in the event there is a market failure.”
451
  The 
                                                     
445
Petition for Forbearance from Application of the Communications Act of 1934, as Amended, to Previously 
Authorized Services, Memorandum Opinion and Order, 12 FCC Rcd 8408, 8411–12, paras. 9–10 (Common Carrier 
Bur. 1997).
446
See, e.g., Petition of USTelecom for Forbearance Under 47 U.S.C. § 160(c) from Enforcement of Certain Legacy 
Telecommunications Regulations, WC Docket No. 12-61, Memorandum Opinion and Order, 28 FCC Rcd 7627, 
7675–76, para. 107 (2013) (finding that the data filed in ARMIS Report 43-01 “is not needed to ensure just and 
reasonable rates, terms, and conditions” given the continuation of “price cap regulation”); id. at 7691, para. 142 
(eliminating the “separate affiliate requirement” for non-Bell operating company dominant carriers while retaining 
the remainder of ex ante rate regulation such as “dominant carrier regulation, Part 32 accounting rules, equal access 
obligations” and “section 251 [unbundling and resale] obligations”).
447
Review of Foreign Ownership Policies for Common Carrier and Aeronautical Radio Licensees, IB Docket No. 
11-133, First Report and Order, 27 FCC Rcd 9832, 9839, para. 15 (2012).
448
Petition of USTelecom for Forbearance Under 47 U.S.C. § 160(c) from Enforcement of Certain Legacy 
Telecommunications Regulations, WC Docket No. 12-61, Memorandum Opinion and Order, 28 FCC Rcd 7627, 
7671–72, paras. 94, 98 (2013).
449
Order at para. 458; see also Order at para. 497 (“[It] is our predictive judgment that other protections that remain 
in place are adequate to guard against unjust and unreasonable and unjustly and unreasonably discriminatory rates 
and practices in accordance with section 10(a)(1) . . . .”).
450
Order at para. 444.
451
CMRS Second Report and Order, 9 FCC Rcd at 1478–79, para. 175.
63
Order itself acknowledges as much elsewhere:  “Of course, this regulatory backstop is not a substitute for 
robust competition.”
452
  And yet the Order somehow concludes that forbearance from economic 
regulations is warranted even though the Commission claims that competition is lacking.
Nor does the Commission explain how “recent experience” informs its predictive judgment.
453
  It 
would be one thing if the Order surveyed existing rates and practices and concluded that present rates and 
practices were just and reasonable—that could be a “practical reference point” for considering the need 
for economic regulation.
454
  But the Order doesn’t do that.  If anything, it specifically calls into question 
the reasonableness of common industry practices like usage-based pricing, data allowances, and 
sponsored data plans.
455
  And it says the record “demonstrates that [carriers] have the ability to use terms 
of interconnection to disadvantage edge providers and that consumers’ ability to respond to unjust or 
unreasonable broadband provider practices are limited by switching costs.”
456
  And yet the Order
somehow concludes that forbearance from economic regulations is warranted.
And the Order never attempts to explain how it can possibly ensure just and reasonable rates and 
practices nationwide through its case-by-case approach.  The Final Regulatory Flexibility Analysis 
attached to the Order estimates that it may need to adjudicate complaints against 4,462 separate 
broadband Internet access service providers to ensure just and reasonable rates,
457
each without the 
presumption that marketplace competition will constrain anticompetitive pricing and practices.  And 
section 208(b)(1) gives the Commission only 5 months to resolve such complaints.
458
  It is simply 
infeasible that our dedicated staff could process and investigate all such complaints in the statutory time 
frame—and deploying economic regulations like ex ante rate regulation is precisely how the FCC 
normally avoids this practical problem.  And yet the Order somehow concludes that forbearance from 
economic regulations is warranted.
Third, the Order claims that the “overlay of section 706 of the [Telecommunications] Act and our 
desire to proceed incrementally” enable the Commission to forbear from large swaths of the 
Communications Act, including its economic regulations, without a finding of sufficient competition.
459
  
But neither section 706 nor the Commission’s desires allow it to ignore the plain terms of federal law.
For one, whatever direction section 706 gives to the Commission regarding forbearance, it does 
not allow the FCC to forbear when the section 10(a) criteria are not met—and specifically, the FCC may 
not grant forbearance where it cannot be assured of the justness and reasonableness of rates and practices.  
In every case where the agency has incorporated section 706’s directive into its forbearance analysis to 
                                                     
452
Order at para. 203.
453
Order at para. 499.
454
Order at para. 499.
455
See Order at paras. 151–53.
456
Order at para. 205.
457
Order Appendix B at para. 19.
458
Communications Act § 208(b)(1) (“[W]ith respect to any investigation under this section of the lawfulness of a 
charge, classification, regulation, or practice, issue an order concluding such investigation within 5 months after the 
date on which the complaint was filed.”); see also Communications Act § 208(a) (“If [a] carrier or carriers shall not 
satisfy the complaint within the time specified or there shall appear to be any reasonable ground for investigating 
said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and 
by such means as it shall deem proper.”).
459
Order at para. 458.
64
repeal economic regulations, the FCC has first found sufficient competition to meet section 10(a)(1)’s 
criterion.
So in the Triennial Review Order, the Commission found a sufficiently “competitive 
environment” to forbear from uncertain unbundling obligations
460
—and the reviewing court agreed that 
“that robust intermodal competition from cable providers . . . means that . . . mass market consumers will 
still have the benefits of competition between cable providers and ILECs.”
461
  In the Qwest Enterprise 
Forbearance Order and the Embarq/Frontier Enterprise Forbearance Order, the agency noted that “the 
marketplace generally appears highly competitive” and found certain economic regulations “no longer 
appropriate in light of the market conditions”
462
—and the reviewing court upheld the FCC’s findings on 
the “feasibility of competitive self-deployment of special access lines—a development that both helps 
justify and will be furthered by the FCC’s decision.”
463
  And in the Section 271 Forbearance Order, the 
FCC specifically called out “the importance of competition in ensuring just, reasonable, and 
nondiscriminatory charges and practices for broadband services”
464
—and the reviewing court agreed that 
the carriers’ “secondary market position relative to cable internet providers tends to mitigate the impact of 
forbearance on the state of competition in the broadband market, especially where cable internet providers 
themselves are not required to unbundle.”
465
To the extent the Order suggests otherwise (e.g., arguing that section 706 allows the Commission 
“to balance the future benefits of encouraging broadband deployment against the short term impact from a 
grant of forbearance”
466
), it is wrong.
467
  And though the Order cites the court reviewing the Section 271 
Forbearance Order for this proposition, the court was actually making a point about competition.  The 
                                                     
460
Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Implementation of the 
Local Competition Provisions of the Telecommunications Act of 1996, Deployment of Wireline Services Offering 
Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147, Report and Order and Order on 
Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd 16978, 17151–52, paras. 292 (2003).
461
United States Telecom Association v. FCC, 359 F.3d 554, 582 (D.C. Cir. 2004).
462
Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect 
to Broadband Services, WC Docket No. 06-125, Memorandum Opinion and Order, 23 FCC Rcd 12260, 12275, 
12280, paras. 26, 34 (2008); Petition of the Embarq Local Operating Companies for Forbearance Under 47 U.S.C. 
§ 160(c) from Application of Computer Inquiry & Certain Title II Common-Carriage Requirements; Petition of the 
Frontier and Citizens ILECs for Forbearance Under Section 47 U.S.C. § 160(c) from Title II and Computer Inquiry
Rules with Respect to Their Broadband Services, WC Docket No. WC 06-147, Memorandum Opinion and Order, 22 
FCC Rcd 19478, 19492, 19496, paras. 22, 30 (2007).
463
Ad Hoc Telecom. Users Committee v. FCC, 572 F.3d 903, 911 (D.C. Cir. 2009).
464
Petition for Forbearance of the Verizon Telephone Companies Pursuant to 47 U.S.C. § 160(c); SBC 
Communications Inc.’s Petition for Forbearance Under 47 U.S.C. § 160(c); Qwest Communications International 
Inc. Petition for Forbearance Under 47 U.S.C. § 160(c); BellSouth Telecommunications, Inc. Petition for 
Forbearance Under 47 U.S.C. § 160(c), WC Docket Nos. 01-338, 03-235, 03-260, 04-48, Memorandum Opinion 
and Order, 19 FCC Rcd 21496, 21507, para. 24 (2004).
465
EarthLink, Inc. v. FCC, 462 F.3d 1, 11 (D.C. Cir. 2006).
466
See, e.g., Order at para. 495 (internal quotation marks and brackets omitted) (“We note in this regard that when 
exercising its section 10 forbearance authority ‘[g]uided by section 706,’ the Commission permissibly may ‘decide[] 
to balance the future benefits’ of encouraging broadband deployment ‘against [the] short term impact’ from a grant 
of forbearance.”  (quoting EarthLink, Inc. v. FCC, 462 F.3d 1, 9 (D.C. Cir. 2006))).
467
Notably, the Order’s response studiously avoids using the statutory word “charges” in favor of the vaguer term 
“conduct,” Order at para. 496 & note 1502, and does not explain what, if anything, will ensure just and reasonable 
charges absent either competition or economic regulation.
65
court first noted: “the FCC concluded that any short-term effects on competition are offset by the prospect 
of additional intermodal competition and the benefits that forbearance will provide: incentives for both 
ILECs and CLECs to invest in and deploy broadband facilities, which will increase competition going 
forward and thereby keep rates reasonable, benefit consumers, and serve the public interest.”
468
  It then 
upheld the FCC’s conclusion:  “[T]he agency only needed to show that the positive short-term impact of 
unbundling would be out-weighed by the longer-term positive impact that not unbundling would have on 
rates, consumers, and the public interest.  The record here is up to the task.”
469
  In contrast, the Order
blithely recognizes that “the record . . . does not provide a strong basis for concluding that the forbearance 
granted in this Order is likely to directly impact the competitiveness of the marketplace.”
470
For another, neither section 706 nor a desire to proceed incrementally can give the FCC carte 
blanche to displace the reticulated economic regulatory regime Congress mandated in favor of its own, 
largely boundless discretion.
471
  Sure, the FCC might prefer the “tailored framework” of section 201 over 
“compliance with interconnection under section 251” because aspects of section 201 interconnection are 
“at the Commission’s discretion” (e.g., the Commission can order through-routes), “rather than being 
subject to mandatory regulation under section 251.”
472
  But such reasoning implies the FCC could have 
pretty much ignored 90% of the Telecommunications Act—rejecting Congress’s entire framework for 
opening local markets to competition—based on the forbearance authority Congress gave the agency in 
that same act.  That makes no sense whatsoever.
The only sensible way to reconcile the framework of the Telecommunications Act is to demand 
something more from the FCC than its own “desire” before replacing the mandatory requirements of the 
law with its own discretionary authority.  That something more is today what is always has been: a 
showing of marketplace competition.
Finally, I take issue with the Order’s repeated complaints about the state of the record.  To wit:
? “Nor do commenters adequately explain how forbearance could be tailored . . . .”
473
? “[C]ommenters . . . do not meaningfully explain what incremental benefit that would 
achieve . . . .”
474
? “[C]ommenters do not meaningfully explain how these arguments impact the section 10 
analysis here, given that the need to protect consumer privacy is not self-evidently linked to 
such marketplace considerations.”
475
? “[C]ommenters do not meaningfully explain how these arguments impact the section 10 
analysis here, given that the need to protect disability access is not self-evidently linked to 
such marketplace considerations.”
476
                                                     
468
EarthLink, Inc. v. FCC, 462 F.3d 1, 7 (D.C. Cir. 2006).
469
Id. at 11.
470
Order at para. 501.
471
Order at para. 458.
472
Order at para. 513.
473
Order at para. 450.
474
Order at note 1352.
475
Order at note 1390.
476
Order at note 1438.
66
? “[C]ommenters do not meaningfully explain how these arguments impact the section 10 
analysis here, given that the need for regulated access to access to poles, ducts, conduit and 
rights-of-way is not self-evidently linked to such marketplace considerations.”
477
? “[C]ommenters do not meaningfully explain how these arguments impact the section 10 
analysis here, given that, even taken at face value, arguments based on such marketplace 
considerations do not purport to sufficiently address the policy concerns underlying section 
254 and our universal service programs.”
478
? “Commenters do not meaningfully explain why the transparency rule is inadequate, and thus 
their arguments do not persuade us to depart from our section 10(a) findings above in the case 
of section 203.”
479
? “Commenters have not explained why we should not find the protections of section 201(b) 
and antitrust law adequate here, as well.”
480
? “[C]ommenters fail to demonstrate at this time that other, applicable requirements or 
protections are inadequate, for the reasons discussed below.”
481
? “[C]omments contending that the Commission should not forbear as to that provision do not 
explain why the core broadband Internet access service requirements do not provide adequate 
protection at this time.”
482
? “Given that decision [made elsewhere in the Order], commenters do not indicate what 
purpose section 204 still would serve, and we thus do not depart in this context from our 
overarching section 10(a) forbearance analysis above.”
483
? “[T]he record here does not demonstrate specific concerns suggesting that Commission 
clarification of statutory terms as needed would be inadequate in this context.”
484
? “Commenters do not indicate, nor does the record otherwise reveal, an administrable way for 
the Commission to grant the requested partial forbearance . . . .”
485
? “Bare assertions that the record here is inadequate to justify forbearance from certain 
provisions from which we forbear above similarly are too conclusory to warrant deferring a 
decision to a future proceeding.”
486
Blaming the public rather than the agency itself for the state of the record should shock the 
administrative conscience.  It certainly takes chutzpah.  If commenters did not explain how forbearance 
could be adequately tailored to meet the FCC’s needs, it’s because the FCC never told commenters what 
its needs were (at least until this Order) nor what forbearance was being contemplated (at least until 
Chairman Wheeler’s Feb. 4, 2015 editorial) nor that forbearance was even necessary (at least until 
President Obama’s Nov. 10, 2014 YouTube announcement).  If commenters did not foresee how the FCC 
                                                     
477
Order at note 1447.
478
Order at note 1466.
479
Order at para. 503.
480
Order at para. 507.
481
Order at para. 494.
482
Order at para. 512.
483
Order at para. 505.
484
Order at para. 466.
485
Order at para. 450.
486
Order at note 1660.
67
would approach forbearance or how certain forbearance decisions would impact other forbearance 
decisions, how can we possibly blame them?
IV.
At the beginning of this proceeding, I quoted Google’s former CEO, Eric Schmidt, who once 
said:  “The Internet is the first thing that humanity has built that humanity doesn’t understand.”
487
  This 
proceeding makes abundantly clear that the FCC still doesn’t get it.
But the American people clearly do.  The threat to Internet freedom has awakened a sleeping 
giant.  And I am optimistic that we will look back on today’s vote as an aberration, a temporary deviation 
from the bipartisan path that has served us so well.  I don’t know whether this plan will be vacated by a 
court, reversed by Congress, or overturned by a future Commission.  But I do believe that its days are 
numbered.
For all of these reasons, I dissent.
                                                     
487
Notice, 29 FCC Rcd at 5653 (Dissenting Statement of Commissioner Ajit Pai) (quoting Jerome Taylor, Google 
chief: My fears for Generation Facebook, The Independent (Aug. 18, 2010), available at http://ind.pn/1vWHCty).