United States Telecom Assoc. v. FCC [Order In Slip Opinion Format]

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

FILED: MAY 1, 2017

No. 15-1063

UNITED STATES TELECOM ASSOCIATION,
PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS

INDEPENDENT TELEPHONE & TELECOMMUNICATIONS
ALLIANCE, ET AL.,
INTERVENORS

Consolidated with 15-1078, 15-1086, 15-1090, 15-1091,
15-1092, 15-1095, 15-1099, 15-1117, 15-1128, 15-1151,
15-1164

On Petitions for Rehearing En Banc

Before: GARLAND*, Chief Judge; HENDERSON*, ROGERS,
T ATEL**, B ROWN ***, G RIFFITH , K AVANAUGH ***,
SRINIVASAN**, MILLETT, PILLARD*, and WILKINS, Circuit
Judges.
 2

ORDER

The petitions for rehearing en banc, the responses thereto,
and the brief of amici curiae were circulated to the full court,
and a vote was requested. Thereafter, a majority of the judges
eligible to vote did not vote in favor of the petitions. Upon
consideration of the foregoing, it is

ORDERED that the petitions be denied.

Per Curiam

FOR THE COURT:
Mark J. Langer, Clerk

BY: /s/
Ken Meadows
Deputy Clerk

* Chief Judge Garland and Circuit Judges Henderson and Pillard
did not participate in this matter.

** A statement by Circuit Judge Srinivasan, joined by Circuit
Judge Tatel, concurring in the denial of the petitions, is attached.

*** Circuit Judges Brown and Kavanaugh would grant the
petitions. Separate statements by Circuit Judge Brown and
Circuit Judge Kavanaugh, dissenting from the denial of the
petitions, are attached.
 SRINIVASAN, Circuit Judge, joined by TATEL, Circuit
Judge, concurring in the denial of rehearing en banc:

In this case, a panel of our court upheld the FCC’s 2015
Open Internet Order, commonly known as the net neutrality
rule. The parties who unsuccessfully challenged the Order
before the panel have now filed petitions seeking review by
the full court sitting en banc. The court today denies en banc
review. En banc review would be particularly unwarranted at
this point in light of the uncertainty surrounding the fate of
the FCC’s Order. The agency will soon consider adopting a
Notice of Proposed Rulemaking that would replace the
existing rule with a markedly different one. See In re
Restoring Internet Freedom, FCC (Apr. 27, 2017),
https://apps.fcc.gov/edocs_public/attachmatch/DOC-344614A
1.pdf. In that light, the en banc court could find itself
examining, and pronouncing on, the validity of a rule that the
agency had already slated for replacement.

While we concur in the court’s denial of en banc review,
we write to respond to a particular contention pressed by one
of our dissenting colleagues: that the FCC’s Order, and thus
our panel decision sustaining it, departs from controlling
Supreme Court precedent in two distinct ways. First, our
colleague submits that Supreme Court decisions require clear
congressional authorization for rules like the net neutrality
rule, and the requisite clear statutory authority, he argues, is
absent here. See infra at 3-18 (Kavanaugh, J., dissenting);
accord infra at 18-23 (Brown, J., dissenting). Second, our
colleague contends that the rule conflicts with Supreme Court
decisions ostensibly arming internet service providers (ISPs)
with a First Amendment shield against net neutrality
obligations. See infra at 19-36 (Kavanaugh, J., dissenting).

Respectfully, both lines of argument are misconceived.
As to the first, the Supreme Court, far from precluding the
FCC’s Order due to any supposed failure of congressional
 2
authorization, has pointedly recognized the agency’s authority
under the governing statute to do precisely what the Order
does. As to the second, no Supreme Court decision supports
the counterintuitive notion that the First Amendment entitles
an ISP to engage in the kind of conduct barred by the net
neutrality rule—i.e., to hold itself out to potential customers
as offering them an unfiltered pathway to any web content of
their own choosing, but then, once they have subscribed, to
turn around and limit their access to certain web content based
on the ISP’s own commercial preferences.

Before taking up the merits of those two issues, we first
emphasize the role in which we examine them. The wisdom
of the net neutrality rule was, and remains, a hotly debated
matter. The FCC received the views of some four million
commenters before adopting the rule, In re Protecting and
Promoting the Open Internet, 30 FCC Rcd. 5601, 5604 ¶ 6
(2015) (Order), and the debate over the rule continues to this
day, with the agency now poised to consider replacing it. We
have no involvement in that ongoing debate. Our task is not
to assess the advisability of the rule as a matter of policy. It is
instead to assess the permissibility of the rule as a matter of
law. Does the rule lie within the agency’s statutory authority?
And is it consistent with the First Amendment? The answer
to both questions, in our view, is yes.

I.

According to our dissenting colleague, the FCC’s Order
runs afoul of a doctrine he gleans from certain Supreme Court
decisions invalidating an agency rule as lying outside the
agency’s congressionally delegated authority. Our colleague
understands those decisions to give rise to a “major rules”
doctrine. That doctrine is said to embody the following
understanding about the scope of agencies’ delegated
 3
authority: while agencies are generally assumed to possess
authority under Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), to issue rules
resolving statutory ambiguities, an agency can issue a major
rule—i.e., one of great economic and political significance—
only if it has clear congressional authorization to do so. See
infra at 4-5 (Kavanaugh, J., dissenting). Our other dissenting
colleague generally agrees with this line of argument
(although she calls the doctrine the “major questions” doctrine
rather than the “major rules” doctrine). See infra at 18-20
(Brown, J., dissenting).

We have no need in this case to resolve the existence or
precise contours of the major rules (or major questions)
doctrine described by our colleagues. Assuming the existence
of the doctrine as they have expounded it, and assuming
further that the rule in this case qualifies as a major one so as
to bring the doctrine into play, the question posed by the
doctrine is whether the FCC has clear congressional
authorization to issue the rule. The answer is yes. Indeed, we
know Congress vested the agency with authority to impose
obligations like the ones instituted by the Order because the
Supreme Court has specifically told us so.

The pertinent decision is National Cable &
Telecommunications Ass’n v. Brand X Internet Services, 545
U.S. 967 (2005). That case, like this one, addressed the
proper regulatory classification under the Communications
Act of broadband internet service. Brand X involved the
provision of broadband internet access via cable systems. At
the time of the decision, cable broadband was one of two
types of broadband service available to customers, the other
being DSL (digital subscriber line). See id. at 975.
 4
The FCC had applied a different form of regulatory
treatment to cable broadband service than to DSL service.
The agency had classified DSL as a “telecommunications
service” for purposes of the Communications Act. See id. at
975, 1000. That classification carries significant statutory
consequences. The Act requires treating telecommunications
providers as common carriers presumptively subject to the
substantial regulatory obligations attending that status. See id.
at 975-76. Common carriers, for instance, generally must
afford neutral, nondiscriminatory access to their services, and
must avoid unjust and unreasonable practices in that
connection. See id. at 975-76, 1000.

Whereas the FCC had classified DSL broadband as a
telecommunications service, the agency had instead elected to
classify cable broadband as an “information service,” the
other of the two classifications available to the agency under
the statute. See id. at 978. Providers of an information
service, in contrast with telecommunications providers, are
not considered to be common carriers under the Act. As a
result, providers of an information service are subject to less
extensive regulatory obligations and oversight than are
telecommunications providers. See id. at 975-76.

The issue in Brand X was whether the Communications
Act compelled the FCC to classify cable broadband ISPs as
telecommunications providers subject to regulatory treatment
as common carriers. The Court answered that question no.
Critically for our purposes, though, the Court made clear in its
decision—over and over—that the Act left the matter to the
agency’s discretion. In other words, the FCC could elect to
treat broadband ISPs as common carriers (as it had done with
DSL providers), but the agency did not have to do so.
 5
The Court, to that end, explained that it had “no difficulty
concluding that Chevron applie[d]” to the agency’s decision
to classify cable broadband as an information service rather
than a telecommunications service. Id. at 982. The statute’s
“silence” on the matter left the Commission “discretion to fill
the consequent statutory gap.” Id. at 997. That meant the
question “would be resolved, first and foremost, by the
agency.” Id. at 982 (internal quotation marks omitted); see id.
at 980-81. The Court repeatedly emphasized the
Commission’s authority to use “its expert policy judgment to
resolve these difficult questions.” Id. at 1003. In that light,
the proper classification of broadband service would turn “on
the factual particulars of how Internet technology works and
how it is provided, questions Chevron leaves to the
Commission to resolve in the first instance.” Id. at 991.

Consequently, the Court held, the court of appeals in
Brand X had “erred in refusing to apply Chevron to the
Commission’s interpretation of the definition of
‘telecommunications service,’” and in declining to defer to
the agency’s decision to treat cable broadband as an
information service. Id. at 984 (quoting 47 U.S.C. § 153(46)
(2000) (currently codified at 47 U.S.C. § 153(53)). But
deference equally would have been owed, the Supreme Court
made clear, if the FCC had reached the opposite resolution by
classifying cable broadband providers as telecommunications
carriers. That is because the agency had only two regulatory
classifications available to it. To affirm the FCC’s statutory
discretion to select between them was necessarily to
countenance the agency’s treatment of cable broadband as a
telecommunications service.

Indeed, the Court went as far as to affirmatively “leave[]
untouched” the court of appeals’s belief that the better reading
of the statute—albeit not the one that had been adopted by the
 6
agency—called for treating broadband providers as
telecommunications carriers. Id. at 985-86. And the Court
fully understood the significant regulatory implications if the
agency were instead to make that choice: classification as a
telecommunications service “would require applying
presumptively mandatory Title II [i.e., common carrier]
regulation to all ISPs.” Id. at 995 n.2.

The concurring and dissenting opinions in Brand X
reinforced the majority’s recognition of the agency’s statutory
authority to subject ISPs to regulation as common carriers.
Justice Breyer’s concurring opinion concluded that the FCC’s
decision to classify cable broadband as an information service
fell “within the scope of its statutorily delegated authority—
though perhaps just barely.” Id. at 1003 (Breyer, J.,
concurring). If the FCC’s election not to impose common
carrier obligations on cable broadband ISPs “just barely” fell
within the agency’s discretion, the opposite choice necessarily
would have fallen comfortably within the agency’s
congressionally delegated authority.

Justice Scalia’s dissenting opinion, joined by Justices
Souter and Ginsburg, went even further. According to Justice
Scalia, the statute permitted only one conclusion: cable
broadband ISPs “are subject to Title II regulation as common
carriers, like their chief competitors [e.g., DSL] who provide
Internet access through other technologies.” Id. at 1006
(Scalia, J., dissenting). The agency, in Justice Scalia’s view,
had no discretion to conclude otherwise. And he expressly
accepted that his reading of the Act would result in “common-
carrier regulation of all ISPs,” a result he considered “not a
worry.” Id. at 1011. (He noted, though, that the agency
possessed statutory authority to forbear from applying the full
range of common carrier regulatory obligations, id. at 1011-
 7
12, an authority the FCC exercised when it fashioned the rule
we now review, see Order ¶¶ 434-532.)

The upshot of Brand X with regard to the FCC’s
congressionally delegated authority over broadband ISPs is
unmistakable and straightforward. All nine Justices
recognized the agency’s statutory authority to institute
“common-carrier regulation of all ISPs,” with some Justices
even concluding that the Act left the agency with no other
choice. 545 U.S. at 1011 (Scalia, J., dissenting). In the Order
under review, the agency took up the Brand X Court’s
invitation. It decided to classify broadband ISPs as
telecommunications providers, enabling it to impose common
carrier obligations on ISPs such as the net neutrality rule in
question here.

In light of Brand X, our dissenting colleague’s reliance
on the “major rules” doctrine cannot carry the day. Recall
that the doctrine ultimately embodies an understanding about
congressional authorization: an agency, the doctrine says, can
adopt a major rule only if it clearly possesses congressional
authorization to do so. The major question at issue here,
according to our colleague, is whether the FCC can subject
broadband ISPs to common carrier obligations. See infra at
12-13 (Kavanaugh, J., dissenting). If we assume that the
FCC’s decision to treat broadband ISPs as common carriers
amounts to a major rule, the question then is whether the
agency clearly has authority under the Act to make that
choice. In Brand X, the Supreme Court definitively—and
authoritatively, for our purposes as an inferior court—
answered that question yes.

It bears emphasis in this regard that, by the time of Brand
X, two of the Supreme Court decisions cited by the dissent as
exemplars of the major rules doctrine—MCI
 8
Telecommunications Corp. v. Am. Telephone & Telegraph
Co., 512 U.S. 218 (1994), and FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120 (2000)—had already been
decided. Brown & Williamson is particularly notable. There,
the Supreme Court considered the FDA’s exercise of its
general rulemaking authority under the Food, Drug, and
Cosmetic Act to regulate the use of tobacco products by
children and adolescents. The Court, although applying
principles of Chevron deference to the FDA’s assertion of
authority over tobacco products, concluded that Congress did
not “delegate a decision of such economic and political
significance to an agency in so cryptic a fashion.” Id. at 160.

Later, in Brand X, the Court reached a different
conclusion about the FCC’s regulatory authority over ISPs.
The Court, again applying Chevron, this time concluded that
Congress had authorized the agency to decide whether to
regulate ISPs as common carriers. As between the two
possible classifications, “the Commission’s choice of one of
them is entitled to deference.” Brand X, 545 U.S. at 989.

We note, further, that there is no material difference
between the technology considered in Brand X and the
technology at issue here. The petitioning parties have
contended throughout this case that Brand X involved only
something referred to as the “last mile” of internet service.
But the panel straightforwardly (and unanimously) rejected
their effort to make anything of that supposed distinction. See
U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 702 (D.C. Cir.
2016); id. at 745 (Williams, J., concurring in part and
dissenting in part). Our dissenting colleague likewise makes
no effort to distinguish Brand X on such a basis. Rather, both
cases involve “the FCC’s authority to classify Internet service
as a telecommunications service.” Infra at 17 (Kavanaugh, J.,
dissenting); but see infra 22-23 (Brown, J., dissenting). And
 9
Brand X, in clearly recognizing the agency’s authority to do
so under the Act, negates any argument under the major rules
doctrine that the FCC lacked statutory authority to issue the
Order we now review.

Our dissenting colleague nonetheless contends that
Brand X poses no obstacle to invalidating the FCC’s Order
under the major rules doctrine. His argument runs as follows.
The question under the major rules doctrine, he observes, is
whether Congress has “clearly authorized the FCC to subject
Internet service providers to the range of burdensome
common-carrier regulations associated with
telecommunications services.” Infra at 16 (Kavanaugh, J.,
dissenting). But the Brand X Court, he then notes, found the
statute “ambiguous about whether Internet service was an
information service or a telecommunications service.” Id. at
17. In his view, “Brand X’s finding of ambiguity by
definition means that Congress has not clearly authorized the
FCC to issue the net neutrality rule.” Id. at 18.

That analysis rests on a false equivalence: it incorrectly
equates two distinct species of ambiguity. It is one thing to
ask whether “Internet service is clearly a telecommunications
service under the statute.” Id. at 16. It is quite another thing
to ask whether Congress has “clearly authorized the FCC to
classify Internet service as a telecommunications service,”
which is the relevant question under our colleague’s
understanding of the major rules doctrine. Id. The former
question asks whether the statute itself clearly classifies ISPs
as telecommunications providers. The latter asks whether the
statute clearly authorizes the agency to classify ISPs as
telecommunications providers.

Our colleague assumes that, if the answer to the former
question is no, “that is the end of the game for the net
 10
neutrality rule.” Id. at 17. Not at all. A negative answer to
the former question hardly dictates a negative answer to the
latter, more salient, one. The statute itself might be
ambiguous about whether ISPs are to be treated as common
carriers, but still be clear in authorizing the agency to resolve
the question.

Indeed, that dichotomy perfectly captures Brand X’s
holding. Justice Scalia, in dissent, believed that the statute
clearly compelled treating ISPs as telecommunications
providers. The majority disagreed, finding the statute
ambiguous on the question. But the majority found that the
agency was empowered to resolve the ambiguity—i.e., to
decide whether ISPs should be classified as
telecommunications providers presumptively subject to
common carrier obligations. In short, whereas Brand X found
statutory ambiguity on whether ISPs are telecommunications
providers, the decision found no statutory ambiguity on
whether the FCC gets to answer that question.

So understood, Brand X dictates rejecting our dissenting
colleague’s argument based on the major rules doctrine. It is
thus perhaps unsurprising that none of the petitioning parties,
no member of the original panel (including our colleague who
dissented in part at the panel stage), and neither of the
dissenting Commissioners objected to the FCC’s Order as
infringing any such doctrine. (We note, though, that a group
of intervenors led by TechFreedom makes such an argument.)
The major rules doctrine is said to promote separation-of-
powers principles by assuring that Congress has delegated
authority to an Executive agency to decide a major matter of
policy. See infra at 3-5 (Kavanaugh, J., dissenting). But in
light of Brand X’s recognition of the FCC’s congressionally
delegated authority to decide whether to regulate ISPs as
common carriers, it would disserve—not promote—the
 11
separation of powers to deny the agency the authority
conferred on it by Congress.

In the end, the major rules doctrine, as articulated by our
colleague, affords no basis for invalidating the net neutrality
rule. The Supreme Court decisions ostensibly giving rise to
that doctrine lie far afield from this case. They involve, per
our colleague’s description, “regulating cigarettes, banning
physician-assisted suicide, eliminating telecommunications
rate-filing requirements, or regulating greenhouse gas
emitters.” Id. at 9. The Court’s decision in Brand X, by
contrast, involved the same statute (the Communications Act),
the same agency (the FCC), the same factual context (the
provision of broadband internet access), and the same issue
(whether broadband ISPs are telecommunications providers,
and hence common carriers, under the Act). Brand X
unambiguously recognizes the agency’s statutorily delegated
authority to decide that issue.

Does Brand X, then, necessarily validate the agency’s
decision to classify broadband ISPs as telecommunications
providers and to subject them to common carrier obligations?
No, it does not. While Brand X recognizes the FCC’s
statutory authority to treat broadband ISPs as common
carriers, the agency must carry out its authority in a
reasonable and non-arbitrary way. The partial dissent from
the panel’s disposition believed that the FCC’s Order fell
short on those grounds, and the petitioning parties have raised
a host of challenges to the agency’s decisionmaking process
and outcome. The panel majority concluded otherwise and
upheld the rule.

But while Brand X could not have settled the validity of a
rule the FCC had yet to promulgate, it did settle the agency’s
authority to classify broadband ISPs as telecommunications
 12
providers under the Communications Act. The major rules
doctrine, as conceptualized by our dissenting colleague, is a
heuristic for determining whether a given rule falls within an
agency’s congressionally delegated authority. Once the
Supreme Court says that a rule does so—as Brand X did with
regard to the FCC’s authority to treat ISPs as common
carriers—our inquiry is over. Insofar as the FCC’s Order
involves a major rule, then, Brand X resolves the agency’s
statutory authority to adopt it.

II.

Our dissenting colleague separately argues that the First
Amendment poses an independent bar to the FCC’s Order.
The Order, he submits, infringes the First Amendment rights
of broadband ISPs. Specifically, he understands Supreme
Court precedent to recognize a First Amendment entitlement
on the part of an ISP to block its subscribers from accessing
certain internet content based on the ISP’s own preferences,
even if the ISP has held itself out as offering its customers an
indiscriminate pathway to internet content of their own—not
the ISP’s—choosing.

Under that view, an ISP, for instance, could hold itself
out to consumers as affording them neutral, indiscriminate
access to all websites, but then, once they subscribe,
materially degrade their ability to use Netflix for watching
video—or even prevent their access to Netflix altogether—in
an effort to steer customers to the ISP’s own competing
video-streaming service. Alternatively, an ISP, again having
held itself out as affording its customers an unfiltered conduit
to internet content, could block them from accessing (or
significantly delay their ability to load) the Wall Street
Journal’s or the New York Times’s website because of a
 13
disagreement with the views expressed on one or the other
site.

An ISP has no First Amendment right to engage in those
kinds of practices. No Supreme Court decision suggests
otherwise. Indeed, although the two dissenting FCC
Commissioners objected to the agency’s adoption of the rule
on multiple grounds, neither suggested the rule poses any
First Amendment issue. Similarly, the principal parties
challenging the Order in this court, who collectively represent
virtually every broadband provider—including all of the
major ISPs—bring no First Amendment challenge to the rule.
The sole party to raise any claim under the First Amendment
is Alamo Broadband Inc., which describes itself as “a small
broadband provider” serving some 1,000 customers in Texas,
and which is joined in its claim by an individual named
Daniel Berninger. Pet’rs’ Joint Proposed Briefing Format &
Sched. 8; Alamo Br. 3.

Notwithstanding the arguments presented by Alamo and
Berninger—and now also our dissenting colleague—the
consensus view is correct: the net neutrality rule raises no
issue under the First Amendment. The key to understanding
why lies in perceiving when a broadband provider falls within
the rule’s coverage. As the Order explains, broadband ISPs
that are subject to the rule “sell retail customers the ability to
go anywhere (lawful) on the Internet”—they “represent[] that
they will transport and deliver traffic to and from all or
substantially all Internet endpoints.” Order ¶ 27; see id.
¶¶ 15, 350. They “display no . . . intent to convey a message
in their provision” of internet access, id. ¶ 549, as would be
necessary “to bring the First Amendment into play,” Texas v.
Johnson, 491 U.S. 397, 404 (1989).
 14
In particular, “[b]roadband providers” subject to the rule
“represent that their services allow Internet end users to
access all or substantially all content on the Internet, without
alteration, blocking, or editorial intervention.” Id. ¶ 549
(emphasis added). Customers, “in turn, expect that they can
obtain access to all content available on the Internet, without
the editorial intervention of their broadband provider.” Id.
(emphasis added). Therefore, as the panel decision held and
the agency has confirmed, the net neutrality rule applies only
to “those broadband providers that hold themselves out as
neutral, indiscriminate conduits” to any internet content of a
subscriber’s own choosing. U.S. Telecom Ass’n, 825 F.3d at
743; see FCC Opp’n Pets. Reh’g 28-29.

For a broadband ISP that holds itself out to consumers as
a “neutral, indiscriminate conduit”—i.e., as a pathway to “all
content on the Internet, without alteration, blocking, or
editorial intervention,” Order ¶ 549—the rule requires the ISP
to abide by its representation and honor its customers’
ensuing expectations. The ISP therefore cannot block its
subscribers’ access to certain websites based on its own
preferences. Nor can it engage in “throttling,” which, while
stopping short of outright blocking, degrades a user’s
experience with selected content so as to render it largely,
even if not technically, “unusable.” Id. ¶ 17. Nor can an ISP
create “fast lanes” favoring content providers who pay the ISP
(or with whom it has a commercial affiliation), while
relegating disfavored (i.e., nonpaying) providers to “slow
lanes.” Id. ¶¶ 18, 126. Like blocking and throttling, paid
prioritization practices of that variety are incompatible with a
promise to provide a neutral, indiscriminate pathway to
content of a customer’s own choosing.

The upshot of the FCC’s Order therefore is to “fulfill the
reasonable expectations of a customer who signs up for a
 15
broadband service that promises access to all of the lawful
Internet” without editorial intervention. Id. ¶¶ 17, 549. The
FCC found that, once a consumer subscribes to a particular
broadband service in reliance on such a promise, she faces
high switching costs constraining her ability to shift away
from her ISP if it reneges on its representation by blocking
her access to select content. See id. ¶¶ 80-82, 97-99. The
agency further explained that a subscriber might well have no
awareness of her ISP’s practices of that kind in the first place:
she may have no reason to suppose that her inability to access
a particular application, or that the markedly slow speeds she
confronts when attempting to use it, derives from her ISP’s
choices rather than from some deficiency in the application.
See id. ¶¶ 81, 99. After all, if a subscriber encounters
frustratingly slow buffering of videos when attempting to use
Netflix, why would she naturally suspect the fault lies with
her ISP rather than with Netflix itself?

While the net neutrality rule applies to those ISPs that
hold themselves out as neutral, indiscriminate conduits to
internet content, the converse is also true: the rule does not
apply to an ISP holding itself out as providing something
other than a neutral, indiscriminate pathway—i.e., an ISP
making sufficiently clear to potential customers that it
provides a filtered service involving the ISP’s exercise of
“editorial intervention.” Id. ¶ 549. For instance, Alamo
Broadband, the lone broadband provider that raises a First
Amendment challenge to the rule, posits the example of an
ISP wishing to provide access solely to “family friendly
websites.” Alamo Pet. Reh’g 5. Such an ISP, as long as it
represents itself as engaging in editorial intervention of that
kind, would fall outside the rule. See U.S. Telecom Ass’n, 825
F.3d at 743; FCC Opp’n Pets. Reh’g 28-29; FCC Br. 146
n.53. The Order thus specifies that an ISP remains “free to
 16
offer ‘edited’ services” without becoming subject to the rule’s
requirements. Order ¶ 556.

That would be true of an ISP that offers subscribers a
curated experience by blocking websites lying beyond a
specified field of content (e.g., family friendly websites). It
would also be true of an ISP that engages in other forms of
editorial intervention, such as throttling of certain applications
chosen by the ISP, or filtering of content into fast (and slow)
lanes based on the ISP’s commercial interests. An ISP would
need to make adequately clear its intention to provide “edited
services” of that kind, id. ¶ 556, so as to avoid giving
consumers a mistaken impression that they would enjoy
indiscriminate “access to all content available on the Internet,
without the editorial intervention of their broadband
provider,” id. ¶ 549. It would not be enough under the Order,
for instance, for “consumer permission” to be “buried in a
service plan—the threats of consumer deception and
confusion are simply too great.” Id. ¶ 19; see id. ¶ 129.

There is no need in this case to scrutinize the exact
manner in which a broadband provider could render the
FCC’s Order inapplicable by advertising to consumers that it
offers an edited service rather than an unfiltered pathway. No
party disputes that an ISP could do so if it wished, and no ISP
has suggested an interest in doing so in this court. That may
be for an understandable reason: a broadband provider
representing that it will filter its customers’ access to web
content based on its own priorities might have serious
concerns about its ability to attract subscribers. Additionally,
such a provider, by offering filtered rather than indiscriminate
access, might fear relinquishing statutory protections against
copyright liability afforded to ISPs that act strictly as conduits
to internet content. See 17 U.S.C. § 512; Recording Indus.
 17
Ass’n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d
1229, 1233, 1237 (D.C. Cir. 2003).

In the event that an ISP nonetheless were to choose to
hold itself out to consumers as offering them an edited service
rather than indiscriminate internet access—despite the
potential effect on its subscriber base—it could then bring
itself outside the rule. In that sense, the rule could be
characterized as “voluntary,” infra at 25-26 n.8 (Kavanaugh,
J., dissenting), but in much the same way that just about any
regulation could be considered voluntary, insofar as a
regulated entity could always transform its business to such
an extent that it is no longer in the line of business covered by
the regulation.

Here, it would be no small matter for an ISP to decide to
present itself to potential customers as providing a
fundamentally different product—an edited service—than the
neutral, indiscriminate access generally promised by ISPs and
expected by consumers as standard service. No ISP has
indicated in this court a desire to represent itself to consumers
as affording them less of a “go wherever you’d like to go”
service and more of a “go where we’d like you to go” service.
Accordingly, Alamo Broadband, the only ISP to raise a First
Amendment claim, makes no argument that it holds itself out
as offering filtered access to web content, as opposed to
offering an indiscriminate pathway to any content of its
subscribers’ own choosing. Alamo nonetheless claims a First
Amendment entitlement to filter its subscribers’ access to web
content through blocking, throttling, and paid prioritization
measures.

Alamo contends, for instance, that a broadband provider
has a First Amendment right to provide faster access to its
own video-streaming service than to a competing product.
 18
Alamo Reh’g Pet. 9. If so, an ISP could similarly afford fast-
lane access (because paid to do so) to a particular service that
sells tickets to concert events while degrading access to
Ticketmaster, even though a customer might lose out on
preferred seats while waiting for Ticketmaster to work. The
same would be true of measures favoring (or disfavoring)
specific ride-sharing applications (e.g., Uber), travel websites
(e.g., Expedia), or video-chat services (e.g., Skype),
potentially causing customers, respectively, to wait longer for
rides, to miss out on flight reservations at fares available for a
limited period, or to fail to connect with family or friends for
face-to-face interactions. Alternatively, the ISP could simply
block access altogether rather than merely slow it down.

In all of those situations, an ISP would have held itself
out as offering its customers unfiltered access to all internet
content, but then would prevent them from accessing—or
otherwise impair their ability to use—selected content it
disfavors. The First Amendment does not give an ISP the
right to present itself as affording a neutral, indiscriminate
pathway but then conduct itself otherwise. The FCC’s Order
requires ISPs to act in accordance with their customers’
legitimate expectations. Nothing in the First Amendment
stands in the way of establishing such a requirement in the
form of the net neutrality rule.

Contrary to our dissenting colleague’s argument, the
Supreme Court’s Turner Broadcasting decisions do not grant
ISPs a First Amendment shield against the net neutrality
rule’s obligations. See infra at 21-23 (Kavanaugh, J.,
dissenting). Those decisions arose in a markedly different
context. They addressed the validity under the First
Amendment of statutory “must-carry” requirements calling
for cable television operators to “devote a portion of their
channels to the transmission of local broadcast television
 19
stations.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
626, 630 (1994); see Turner Broad. Sys., Inc. v. FCC, 520
U.S. 180 (1997).

The Supreme Court ultimately upheld the must-carry
obligations. In the process of doing so, however, the Court
recognized that a cable operator’s choices about which
programming to carry on its channels implicate the First
Amendment’s protections. That is because a cable operator
engages in protected First Amendment activity when it
“exercis[es] editorial discretion over which stations or
programs to include in its repertoire.” Turner Broad., 512
U.S. at 636 (internal quotation marks omitted).

The same cannot be said of broadband providers subject
to the FCC’s Order. Whereas a cable operator draws the
protections of the First Amendment when it exercises editorial
discretion about which programming to carry, an ISP falling
within the net neutrality rule represents that it gives
subscribers indiscriminate access to internet content without
any editorial intervention. Cable operators, that is, engage in
editorial discretion; ISPs subject to the net neutrality rule
represent that they do not. The very practice bringing cable
operators within the fold of the First Amendment’s
protections is inapplicable in the case of broadband providers
subject to the net neutrality rule.

For that reason, our dissenting colleague gains little by
emphasizing that the same cable operators recognized to have
First Amendment interests at stake in Turner Broadcasting
also serve as broadband ISPs. See infra at 23 (Kavanaugh, J.,
dissenting). Our colleague thinks it entirely illogical to
conclude that those entities receive First Amendment
protection when transmitting television programming under
must-carry obligations but not when transmitting internet
 20
content under the net neutrality rule. The distinction becomes
entirely understandable, however, upon recognizing that cable
operators exercise editorial discretion in the former situation
but disclaim any exercise of editorial intervention in the latter.

Indeed, the cable operators themselves evidently
appreciate a distinction. In Turner Broadcasting, the party
standing in the shoes of cable operators, presenting oral
argument and briefing on their behalf, was NCTA (which then
stood for National Cable Television Association). See 520
U.S. at 184; 512 U.S. at 625. Here, NCTA again represents
cable operators, this time in their capacity as broadband
providers. See, e.g., U.S. Telecom Ass’n, 825 F.3d at 687. In
Turner Broadcasting, NCTA persuaded the Court that cable
operators engage in protected First Amendment activity when
selecting the television programming to include in their
channel lineups. Yet here, the very same party—tellingly—
raises no First Amendment challenge at all. It says quite a lot
when the party that presumably understands better than
anyone the import of the Turner Broadcasting decisions for
cable operators apparently perceives no viable First
Amendment objection to the net neutrality rule under those
decisions. (That NCTA may have raised First Amendment
concerns about previous net neutrality obligations, see infra
28 n.9 (Kavanaugh, J., dissenting), only magnifies its decision
to forgo any such objection to the current rule.)

Our dissenting colleague presents a number of associated
arguments emanating from his belief that Turner
Broadcasting vests broadband providers with First
Amendment protections when they block and throttle internet
content. Those arguments, however, tend to fall away once
one understands—as cable operators themselves evidently
do—the inapplicability of Turner Broadcasting to this case.
 21
As an example, our colleague rejects what he perceives to
be the FCC’s “use it or lose it” conception of First
Amendment rights. See infra at 24 (Kavanaugh, J.,
dissenting). But the chief reason the net neutrality rule raises
no First Amendment problem is not that ISPs have lost their
First Amendment rights by refraining from actively filtering
the internet content they transmit to subscribers. The lack of a
viable First Amendment claim stems from what ISPs have (or
have not) said, not from what they have (or have not) done.
When a broadband provider holds itself out as giving
customers neutral, indiscriminate access to web content of
their own choosing, the First Amendment poses no obstacle to
holding the provider to its representation. That amounts to an
“if you say it, do it” theory, not a “use it or lose it” theory.

Our dissenting colleague likewise errs in fearing a
slippery slope under which the government could require
widely used web platforms such as Facebook, Google,
Twitter, and YouTube, or a widely used commercial
marketplace such as Amazon, to accept or promote all
relevant content on nondiscriminatory terms. See infra at 25,
33 (Kavanaugh, J., dissenting). Those companies evidently
do not share our colleague’s concern—all but one is a
member of a group that supports the rule in this court. See
Internet Association Amicus Br. in Support of Resp’ts iv.
That may be in part because those companies, in contrast with
broadband ISPs, are not considered common carriers that hold
themselves out as affording neutral, indiscriminate access to
their platform without any editorial filtering. If an agency
sought to impose such a characterization on them, they would
presumably disagree. Here, by contrast, the rule applies only
to ISPs that represent themselves as neutral, indiscriminate
conduits to internet content, and no ISP subject to the rule—
including Alamo Broadband—has disclaimed that
characterization in this court.
 22
The real slippery-slope concerns run in the reverse
direction. Under our dissenting colleague’s approach,
broadband ISPs would have a First Amendment entitlement to
block and throttle content based on their own commercial
preferences even if they had led customers to anticipate
neutral and indiscriminate access to all internet content.
There is no apparent reason the same conclusion would not
also obtain in the case of telephone service, which, like
broadband service, is classified as common carriage.

Imagine if a telephone provider held itself out as an
indiscriminate conduit for phone communications but wished
to block or impair access to select endpoints based on the
provider’s own editorial preferences. A telephone company
might, for example, restrict access to certain numbers based
on political affiliation or other criteria. The company would
have an entitlement to do so under our colleague’s
understanding of the First Amendment.

Our colleague suggests that telephone companies differ
from broadband providers in that they generally do not carry
“mass communications.” Infra at 34 n.13 (Kavanaugh, J.,
dissenting). But speech directed to a finite audience is no less
protected than speech available on a broader scale. And the
category of “mass communications,” in any event, is hardly
self-defining. One can readily envision circumstances in
which telephone service would fairly be considered to involve
mass communication (text messages or recorded voice
messages designed to reach a broad audience, for instance).
Our colleague’s understanding of broadband providers’ First
Amendment rights would arm telephone companies with
parallel rights to block or filter phone service, contradicting a
long history of uncontroversial regulation of that service.
 23
For all of those reasons, broadband ISPs have no First
Amendment entitlement to hold themselves out as
indiscriminate conduits but then to act as something different.
The net neutrality rule assures that broadband ISPs live up to
their promise to consumers of affording them neutral access
to internet content of their own choosing. The rule, in doing
so, does not infringe the First Amendment.
 BROWN, Circuit Judge, dissenting from the denial of
rehearing en banc: An independent federal agency sits at the
intersection of the road to the White House and Constitution
Avenue. Two statues that capture struggle between man and
horse flank the agency. The statues are called “Man
Controlling Trade,” and they depict a man, the government,
restraining a horse, the marketplace. Though the statues look
similar, they are not the same. On the President’s road, the
horse—the marketplace—looks threatening, as if it will topple
the brawny man trying to grasp the reins. On Constitution
Avenue, the man—the government—is the threatening one,
grasping the reins on both sides of the animal’s head; it appears
he is trying to overpower a valiant and sympathetic horse.
Here, as with the statues, an independent agency sits at the
crossroads of competing visions—the President’s view of the
Internet as threatening consumers, and the libertarian view of
government as strangling the greatest market innovation of the
last century. But an orthodox view of checks and balances
leaves the choice of vision to Congress.

Congress passed, and President Clinton signed, the
Telecommunications Act of 1996 (the “Act”), and its meaning
could not be clearer: “to preserve the vibrant and competitive
free market that presently exists for the Internet . . ., unfettered
by Federal or State regulation.” 47 U.S.C. § 230(b)(2)
(emphasis added). For nearly two decades, the federal
government respected the Act’s deregulatory policy.
Presidents enforced it, Congresses did not alter it, and the
Federal Communications Commission (“FCC” or the
“Commission”) gave the Internet only a light-touch regulation.
When FCC regulation went beyond a light touch, this Court
intervened. See Verizon v. FCC, 740 F.3d 623, 629–30, 650–
59 (D.C. Cir. 2014). However, the regulatory proposal now
before the Court seeks to end this longstanding consensus.

When the FCC followed the Verizon “roadmap” to
implement “net neutrality” principles without heavy-handed
 2
regulation of Internet access, the Obama administration
intervened. Through covert and overt measures, FCC was
pressured into rejecting this decades-long, light-touch
consensus in favor of regulating the Internet like a public
utility. This sea change places the Commission in control of
Internet access. G. Nagesh & B. Mullins, Net Neutrality: How
White House Thwarted FCC Chief, WALL ST. J. (Feb. 4, 2015).

Abandoning Congress’s clear, deregulatory policy does
more than subject Internet access to a regulatory framework fit
for the horse and buggy. The FCC’s statutory rewrite relegates
the Constitution’s vital separation of powers framework to “a
mere parchment delineation of the boundaries;” a hollow
guarantee of liberty. See THE FEDERALIST NO. 73 (Hamilton),
p. 441 (Clinton Rossiter ed., 1961). If we take the
Constitution’s structural restraints seriously, we cannot wish
the Commission bon voyage on its Presidentially-imposed
journey to become the Federal Cyberspace Commission. As
that is exactly what the Court’s Opinion does, I respectfully
dissent from the denial of rehearing en banc. 1

I.

The Act’s Deregulatory Structure

1
The Judges concurring in today’s denial of rehearing note “[t]he
[FCC] will soon consider adopting a Notice of Proposed Rulemaking
that would replace the existing rule with a markedly different one.”
Concurral at 1. For this reason, they consider en banc review
“particularly unwarranted at this point.” Id. Of course, en banc
review is not now at issue. The motions to rehear this case were filed
in August of last year when rehearing would certainly have been
appropriate. Moreover, regardless of any future FCC action, the
broad implications of this Court’s Panel Opinion remain; Supreme
Court involvement may yet be warranted.
 3
Congress passed the Telecommunications Act of 1996 to
amend the Communications Act of 1934, and in doing so,
protect the innovation animating the Internet. See
Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56 (1996) (“An Act [t]o promote competition and reduce
regulation in order to secure lower prices and higher quality
services for American telecommunications consumers and
encourage the rapid deployment of new telecommunications
technologies.”). The Act found that the “Internet and other
interactive computer services have flourished, to the benefit of
all Americans, with a minimum of government regulation.” 47
U.S.C. § 230(a)(4) (emphasis added). Accordingly, Congress
made keeping the Internet “unfettered” by “regulation” our
national policy. Id. § 230(b)(2). Achieving this policy required
a commitment to deregulatory tools and standards. The Act
provided exactly that.

A.

Internet Access As An Information Service

As the Supreme Court explained, the 1996 Act
incorporated FCC’s prior practice of distinguishing “basic
services,” which are provided by “telecommunications
services,” and “enhanced services,” which are provided by
“information services.” See National Cable &
Telecommunications Ass’n v. Brand X Internet Services, 545
U.S. 967, 975–77 (2005) (“Brand X”). “These two statutory
classifications originated in the late 1970’s, as the Commission
developed rules to regulate data-processing services offered
over telephone wires.” Id. at 976.

“Basic services,” the analogue to the 1996 Act’s
“telecommunications services,” were defined as “a pure
transmission capability over a communications path that is
 4
virtually transparent in terms of its interaction with customer
supplied information.” Id. “[N]o computer processing or
storage of the information” was part of “basic services,”
“other than the processing or storage needed to convert the
message into electronic form and then back into the ordinary
language for purposes of transmitting it over the network—
such as a telephone or facsimile.” Id. (emphasis added). The
FCC, and then Congress in 1996, subjected these “basic
services,” these “telecommunications services,” to common
carrier regulation. Id.

“Enhanced services” are the analogue to “information
services” in the 1996 Act, and they are not subject to common
carrier regulation. Id. at 977. The Commission historically
defined “enhanced services” to be those where “computer
processing applications [were] used to act on the content, code,
protocol, and other aspects of the subscriber’s information,”
like voicemail. See id. at 976–77. The regulatory rub with
“enhanced service,” as it is here with Internet access, is that it
may be “offered via transmission wires” that, themselves, may
constitute a “basic” or “telecommunications service.” See id.
at 977. Nevertheless, “given the fast-moving, competitive
market” in which [enhanced services] were offered,” the FCC
did not subject them to common carrier regulation. Id.

Just so, when Congress exempted “information services”
from common carrier regulation in 1996, it followed the FCC’s
longstanding course. See id. at 992 (“Congress passed the
definitions in the Communications Act against the background
of this regulatory history, and we may assume that the parallel
terms ‘telecommunications service’ and ‘information service’
substantially incorporated their meaning, as the Commission
has held.”). The statute says “interactive computer service”
includes “any” provider of “information service,” and
“specifically a service or system that provides access to the
 5
Internet.” See 47 U.S.C. § 230(f)(2) (emphasis added). The
Act also specifically excludes “telecommunications services”
from the definition of “Internet access service.” Id. § 231(e)(4).

Unsurprisingly, the Act’s definition of “information
service” fits broadband Internet access like a glove.
“[G]enerating, acquiring, storing,” or “making available
information via telecommunications” is what users do on social
media websites like Facebook. See id. § 153(24).
“[T]ransforming” or “utilizing” “information via
telecommunications” is what users do on YouTube. See id.
“[A]cquiring, storing,” and “retrieving . . . information via
telecommunications” is what users do with email. See id. The
“offering of a capability” for engaging in all of these activities
is exactly what is provided by broadband Internet access. See
id.

B.

Authority To Forbear Burdensome Regulations

Before the 1996 Act, FCC sought to deregulate aspects of
the telecommunications industry on its own authority. But, its
assertions of inherent power to “forbear” common carrier
regulations engendered judicial skepticism. See, e.g., MCI
Telecomms. Corp. v. AT&T, 512 U.S. 218, 234 (1994) (“[T]he
Commission’s desire to ‘increase competition’ cannot provide
[it] authority to alter the well-established statutory filed rate
requirements . . . . [S]uch considerations address themselves to
Congress, not to the courts”); AT&T v. FCC, 978 F.2d 727, 736
(D.C. Cir. 1992) (“We understand fully why the Commission
wants the flexibility to apply the tariff provisions of the
Communications Act . . . . But the statute, as we have
interpreted it, is not open to the Commission’s construction.
The Commission will have to obtain congressional sanction for
 6
its desired policy course.”). Heeding these admonitions,
Congress gave FCC statutory authority to forbear common
carrier regulations in the 1996 Act. See Telecommunications
Act of 1996, Pub. L. No. 104-104 § 401, 110 Stat. 56, 128
(1996) (entitled “Regulatory Forbearance” and inserting this
section into the Communications Act’s Title I). Logically,
forbearance is a tool for lessening common carrier regulation,
not expanding it.

The authority to forbear regulation is limited to certain
circumstances. FCC is only permitted to forbear when it has
shown the common carriage provision is not needed: (1) to
ensure just and reasonable prices and practices; or (2) to protect
consumers. Forbearance must also be in the public interest.
See 47 U.S.C. § 160(a).

C.

Mobile Broadband Cannot Be Common Carriage

The 1996 Act also ensured providers of mobile broadband
Internet access “shall not . . . be treated as a common carrier for
any purpose.” See 47 U.S.C. § 332(c)(2) (emphasis added).
Section 332 specifies only a commercial mobile service (or a
“functional equivalent”) can be subject to common carrier
regulation. Id. §§ 332(c)(1)(A), (c)(2), (d)(3). “Private mobile
service,” in contrast, is “any mobile service” that is not a
commercial one, and it may not be regulated as a common
carrier. See id. § 332(d)(3). Section 332 defines “commercial
mobile service” as a mobile service “provided for profit [that]
makes interconnected service available [to the public].” Id. §
332(d)(1). The section then defines “interconnected service”
as a “service that is interconnected with the public switched
network (as such terms are defined by regulation by the
[FCC]).” Id. § 332(d)(2). The FCC—until the Order at issue
 7
here—always defined “interconnected service” as “giv[ing]
subscribers the capability to communicate . . . [with] all other
users on the public switched network.” See 47 C.F.R. § 20.3
(1994) (emphasis added). “[T]he public switched network”
was, in turn, defined as the “common carrier switched network
. . . that use[s] the North American Numbering Plan.” Id. In
other words, “the public switched network” is the telephone
network. Though it is legislative history, the 1996 Act’s
Conference Report buttresses this textual reading. See H.R.
Rep. No. 103-213, at 495 (1993) (characterizing the House
version of Section 332 as interconnection with “the Public
switched telephone network,” even as both the House and
Senate versions of Section 332 referred to “the public switched
network”) (emphasis added), reprinted in 1993 U.S.C.C.A.N.
1088, 1184. Moreover, § 332(d)(2) refers to one network: “the
public switched network.” In other words, the fact that another
network can connect to the telephone network does not make
that other network part of “the public switched network.”

II.

FCC Practice Preserved The Free Market For Internet
Access

It is bizarre that the FCC is now disputing the notion that
Congress would “attempt to settle the regulatory status of
broadband Internet access services” with the 1996 Act. See Op.
34–35. Barely more than a year after the 1996 Act, Congress
charged the FCC with assessing “the definitions of
‘information service’ . . . [and] ‘telecommunications service’”
in the Act, and “the application of those definitions to mixed or
hybrid services . . . including with respect to Internet access.”
See Dep’ts of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act, 1998, Pub. L. No. 105-
119, § 623, 111 Stat. 2440, 2521 (1997). What is this but
 8
inquiring into “the regulatory status” of Internet access in the
1996 Act and whether Congress was satisfied with its scheme?

The Commission’s report, known as the Universal Service
Report, made several conclusions confirming the text, history,
and structure of the 1996 Act properly classified Internet access
service as “information service.” See, e.g., Federal-State Joint
Board on Universal Service, Report to Congress, FCC 98-67,
13 FCC Rcd. 11501, 11513–14 ¶ 27, 11536–40 ¶¶ 74–82
(1998) (hereinafter Universal Service Report). In this report,
the FCC also endorsed the view of five Senators saying
“[n]othing in the 1996 Act or its legislative history suggests []
Congress intended to alter the current classification of Internet
and other information services or to expand traditional
telephone regulation to new and advanced services.” Id. at
11520 ¶¶ 38–39. As the Senators’ view parallels the
conclusions reached within the Universal Service Report, and
their view is quite prescient, their letter is worth quoting at
length:

This unparalleled success [in Internet access]
has emerged in the context of policies that favor
market forces over government regulation—
promoting the growth of innovative, cost-
effective, and diverse quality services. It is this
same pro-competitive mandate that is at the
heart of the 1996 Act. . . . Simply put, Congress
has not required the FCC to prepare and submit
a Report on Universal Service that alters this
successful and historic policy. Moreover, were
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 sciences to the
 9
detriment of our economic and educational
well-being.

Some have argued Congress intended that the
FCC’s implementing regulations be expanded
to reclassify certain information service
providers, specifically Internet Service
Providers (ISPs), as telecommunications
carriers. Rather than expand regulation to new
service providers, a critical goal of the 1996 Act
was to diminish regulatory burdens as
competition grew. Significantly, this goal has
been the springboard for sound
telecommunications policy throughout the
globe, and underscores U.S. leadership in this
area. The FCC should not act to alter this
approach.

Letter from Senators John Ashcroft, Wendell Ford, John Kerry,
Spencer Abraham, and Ron Wyden to the Honorable William
E. Kennard, Chairman, FCC (Received Mar. 23, 1998),
http://apps.fcc.gov/ecfs/document/view?id=2038710001
(emphasis added).

The FCC heeded the Universal Service Report’s
conclusions in subsequent Orders. In its Advanced Services
Order, the FCC characterized the “last mile” of Digital
Subscriber Line services (DSL services), or “broadband
Internet service furnished over telephone lines,” as a
“telecommunications service.” See Verizon, 740 F.3d at 630–
31 (citing In re Deployment of Wireline Services Offering
Advanced Telecommunications Capability, 13 FCC Rcd.
24012, 24014 ¶ 3, 24029–30 ¶¶ 35–36 (1998) (“Advanced
Services Order”)). But, the Advanced Services Order specified
the last-mile transmission between the end user and the Internet
 10
Service Provider is distinct from the “enhanced service” of
Internet access itself. “The first service is a
telecommunications service (e.g., the . . . transmission path),
and the second service is an information service, in this case
Internet access.” See Advanced Services Order 24030 ¶ 36.

In 2002, the FCC issued its Cable Broadband Order. The
Commission found that cable modem service “supports such
functions as email, newsgroups, maintenance of the user’s
world wide web presence, and the DNS. Accordingly . . . cable
modem service” is “an Internet access service,” making it “an
information service.” See Inquiry Concerning High-Speed
Access to the Internet Over Cable and Other Facilities; Internet
Over Cable Declaratory Ruling; Appropriate Regulatory
Treatment for Broadband Access to the Internet Over Cable
Facilities, FCC 02-77, 17 FCC Rcd. 4798, 4822 ¶ 38 (2002)
(“Cable Broadband Order”). This classification stood
irrespective of the fact that “cable modem service provides the
[enhanced service] capabilities described [] via
‘telecommunications.’” Id. 4823 ¶ 39. In the case of cable
modem service, “[t]he cable operator providing cable modem
service over its own facilities . . . is not offering
telecommunications service to the end user, but rather is merely
using telecommunications to provide end users with cable
modem service.” Id. 4823–24 ¶ 41. The distinction between
the services still stood, even as the nature of cable modem
service rendered it an integrated “information service.” This
confirms, again, what is of relevance here: the fact that an
“information service,” like Internet access, has
“telecommunications services” among its component parts
does not per se make it a “telecommunications service.” The
Cable Broadband Order was at issue in Brand X.

A.
 11
Brand X

In Brand X, the Supreme Court left the FCC’s
“information service” classification of cable-provided Internet
access “unchallenged.” See 545 U.S. at 987–88. Brand X also
acknowledged, as FCC acknowledged in its prior Orders and
in its briefing before the Brand X Court, “information service .
. . [is] the analog to enhanced service” in the 1996 Act, and this
“information service” includes accessing the Internet. See 545
U.S. at 987; see also FCC Brand X Reply Br. 5, No. 04-277
(Mar. 18, 2005) (explaining Internet access allows the user to
“interact[] with stored data . . . maintained on the facilities of
the other ISP (namely the contents of . . . web pages, e-mail
boxes, etc.)”). When explaining why cable modem service was
an “information service,” the Brand X Court relied on cable
modem service “provid[ing] consumers with a comprehensive
capability for manipulating information using the Internet via
high-speed telecommunications”—namely, “enabling users,
for example, to browse the World Wide Web . . . . [to] match[]
the Web page addresses that end users type into their browsers
(or ‘click’ on) with the Internet Protocol (IP) addresses of the
servers containing the Web pages the users wish to access.” Id.
at 987. Even as cable modem service relied on
“telecommunications service” to bring this “information
service” to the end user, “the nature of the functions the end
user is offered” was Internet access, an information service—
rendering the classification proper. See id. at 988 (emphasis
added). The presumption here is, under the 1996 Act, Internet
access is information service.

Brand X cannot be read to render broadband Internet
access a “telecommunications service.” As the Supreme Court
said, “the entire question [in Brand X] is whether the products
here are functionally integrated or functionally separate.” Id.
at 991 (emphasis added). In other words, does the fact that
 12
cable modem service delivers the “information service” of
Internet access through a “telecommunications service” render
the two services one “offer” of “information service?” Or, is
there one “offer” of “telecommunications service” in the
transmission and one “offer” of “information service” in the
Internet access? To channel Justice Scalia’s Brand X pizzeria
analogy, the Brand X majority found cable modem service a
single “offer” of “information service,” or a pizzeria’s single
“offer” of pizza and pizza delivery. Justice Scalia, in contrast,
thought cable modem service contained “offers” of
“telecommunications” and “information” services,
respectively, or separate “offers” of “pizza delivery” and
“pizza.” No member of the Brand X Court disputed that what
occurred at the Internet Service Providers’ computer-
processing facilities constituted an “information service.” See
545 U.S. at 997–1000; see also id. at 1009–11 (Scalia, J.,
dissenting). Or, continuing the analogy, no member of the
Brand X Court disputed that the pizzeria makes pizza. FCC
would confirm that nothing in Brand X rendered Internet access
itself a “telecommunications service.” See Appropriate
Framework for Broadband Access to the Internet Over
Wireline Facilities, et al., FCC 05-150, 20 FCC Rcd. 14853,
14862 ¶ 12 (2005) (“Internet access service is an information
service”).

B.

Reclassification and Verizon

The FCC repeatedly affirmed the Act’s deregulatory
approach toward mobile broadband Internet access as well. In
2007, the Commission said “mobile wireless broadband
Internet access service does not fit within the definition of
‘commercial mobile service’” because it is not an
“interconnected service”—it connects to the Internet and not
 13
the telephone network. See Appropriate Regulatory Treatment
for Broadband Access to the Internet Over Wireless Networks,
FCC 07-30, 22 FCC Rcd. 5901, 5916 ¶ 41, 5917 (2007). 2 The
FCC reached the same conclusion in 2011. See Reexamination
of Roaming Obligations of Commercial Mobile Radio Service
Providers and Other Providers of Mobile Data Services, FCC
11-52, 26 FCC Rcd. 5411, 5431 ¶ 41 (2011). In doing so, the
Commission confirmed mobile broadband’s status as outside
common carrier classification.

This Court was equally consistent about the status of
mobile broadband Internet service. In Cellco Partnership v.
FCC, 700 F.3d 534 (D.C. Cir. 2012), this Court said Section
332 provides a “statutory exclusion of mobile-internet
providers from common carrier status.” See id. at 544. When
the FCC attempted to treat mobile broadband like a common
carrier in Verizon, this Court minced no words—the “treatment
of mobile broadband providers as common carriers would
violate section 332.” 740 F.3d at 650.

To be sure, this Court said in Verizon that, under Section
706 of the 1996 Act, the FCC “never disclaimed authority to
regulate the Internet or Internet providers altogether.” See id.
at 638. Whatever the wisdom of Verizon’s interpretation of
Section 706, the FCC did not “reclassify broadband” to

2
Importantly, one of the reasons the FCC saw no sense in classifying
mobile broadband as “commercial mobile service” is the “internal
contradiction within the statutory scheme” doing so would create
with the status of Internet access as an information service. See 22
FCC Rcd. at 5916 ¶ 41 (“Concluding that mobile wireless broadband
Internet access service . . . should not be . . . subject to . . . common
carrier obligations . . . is most consistent with Congressional intent
to maintain a regime in which information service providers are not
subject to Title II regulations as common carriers.”) (emphasis
added).
 14
implement “net neutrality” principles in that case. See id. at
633. In fact, as Judge Williams noted in dissent from the
Court’s Opinion here, “the Verizon court struck down the rules
at issue on the ground that they imposed common carrier duties
on the broadband carriers, impermissibly so” under the Act.
See Concurring & Dissenting Op. 52 (emphasis in original);
see also Verizon, 740 F.3d at 650 (“[R]egulating broadband
providers as common carriers” would “obvious[ly] . . . violate
the Communications Act.”); see also id. at 656–59. Moreover,
Verizon did not require the FCC to reclassify broadband in the
future if the Commission wanted to implement any form of “net
neutrality.” Instead, Verizon identified FCC authority in
Section 706 to implement some “net neutrality” regulations
without reclassification (such as FCC’s “transparency rules,”
which the Verizon Court upheld). When crafting this Order,
the Commission took note of Verizon’s conclusions.

In announcing the Order here, the FCC Chairman claimed
the Order “proposed” to “reinstate rules that achieve the goals
of the 2010 Order using the Section 706-based roadmap laid
out by the court [in Verizon].” See Notice of Proposed
Rulemaking, FCC 14-61, 29 FCC Rcd. 5561, 5647 (2014)
(statement of Chairman Tom Wheeler). No statement from the
FCC—until after the President intervened, that is—ever
suggested the Commission felt compelled by Verizon to
reclassify broadband if it wanted to implement any “net
neutrality” principles. Indeed, when the Notice of Proposed
Rulemaking explained the contours of the Order’s ban on
commercially unreasonable practices, it stated the following as
FCC’s goal: “[C]odifying an enforceable rule to protect the
open Internet that is not common carriage per se.” See id. at
5599, Subpart III.E (capitalizations omitted) (emphasis added).
The Notice of Proposed Rulemaking made similar statements
with respect to its revisions to the “no-blocking” rule after
Verizon. See id. at 5595 ¶ 95.
 15

Verizon found the FCC’s proper Section 706 authority
consistent with “the backdrop of the Commission’s long
[regulatory] history.” See 740 F.3d at 638. That “backdrop”
led Verizon to say: “Congress clearly contemplated that the
Commission would continue regulating Internet providers in
the manner it had previously.” Id. at 639. Before the
President’s intervention in this Order and in light of Verizon,
the Commission was going to do exactly that. But by
reclassifying broadband Internet access as common carriage,
“the circumstances” of this Order are “entirely different” from
what Verizon considered. See id. at 638.

III.

The Order Here Lacks Congressional Authorization

The Order at issue gives FCC the authority to regulate “all
users of public IP addresses,” or everything that connects to the
Internet. See In the Matter of Protecting and Promoting the
Open Internet (“Order”) ¶ 396 (Feb. 26, 2015). By 2020,
according to the FCC Chairman, this could amount to 50 billion
interconnected devices. See, e.g., Remarks of FCC Chairman
Tom Wheeler, International Institute of Communications
Annual Conference (Oct. 7, 2015), https://apps.fcc.gov/
edocs_public/attachmatch/DOC-335877A1.pdf. This vast
power comes from two different, but related statutory
reclassifications. First, the FCC reclassifies fixed broadband
Internet access from an “information service” under Title I of
the Act to a “telecommunications service” under Title II.
Second, the FCC reclassifies mobile broadband service as an
“interconnected service” with “the public switched network”
under Title III.
 16
Both reclassifications ensure what the Court calls
“consistent regulatory treatment” of mobile and fixed
broadband Internet access. See Op. 77. By “consistent
regulatory treatment,” the Court means the FCC can treat
Internet access like monopolist railroads and telephone
services—as a common carrier subject to public utility
regulation. The innovation of modern technology now falls
prey to the regulatory labyrinth smothering the old.

Subjecting all broadband Internet access to common
carrier regulation lets FCC decide how to apply onerous
requirements on Internet access. This authority covers all the
ways in which Internet Service Providers conduct and run their
respective businesses. The Order gives the FCC authority to
determine, case-by-case, whether any activities “unreasonably
interfere with or unreasonably disadvantage the ability of
consumers to reach the Internet content, services, and
applications of their choosing.” Order ¶ 135. FCC is
empowered to assess the “reasonableness” of all rates, terms,
and practices of Internet Service Providers. See, e.g., id. ¶¶
441–52, 512, 522. The Order also includes an outright ban on
several practices, including: “throttling,” or slowing Internet
service down, id. ¶ 119; blocking access to certain Internet
content; and on individualized negotiation of Internet access
between content owners and Internet Service Providers (called
“paid prioritization”), id. ¶ 125. Some practices are explicitly
left for the FCC to address in the future, like not charging end
customers for the data used by certain applications or Internet
services (“zero rating”), and sponsored-data plans, id. ¶¶ 151–
53. In short, the Order establishes the FCC’s long-term
authority over Internet access.

The FCC’s unheralded assertion of power has already led
some smaller Internet Service Providers to “cut[] back on
investments [in broadband Internet access].” See Statement of
 17
FCC Commissioner Ajit Pai On New Evidence That President
Obama’s Plan To Regulate The Internet Harms Small
Businesses And Rural Broadband Deployment (May 7, 2015),
http://go.usa.gov/3wAkn. I doubt they will be the last
Providers to lessen their investments in Internet access, or to
attempt navigating their business practices around FCC
regulation. The Court’s Opinion is blasé about grafting public
utility regulation on to an innovative enterprise. See Op. 97.
But, the conceit of regulatory capture is often fatal to growth,
leading regulation to fail at its own aims by operating on only
a pretense of knowledge. See F.A. Hayek, THE FATAL
CONCEIT: THE ERRORS OF SOCIALISM 76 (W.W. Bartley, III ed.
1991) (“The curious task of economics is to demonstrate to
men how little they really know about what they imagine they
can design.”).

Reclassifying broadband Internet access so as to subject it
to common carrier regulation upends the Act’s core distinction
between “information service” and “telecommunications
service,” and it rewrites the statutory prohibition on treating
mobile broadband providers as common carriers.
Distinguishing “enhanced service,” like Internet access, from
“basic services” subjected to public utility regulation is not
some trivial matter, nor is it resolved simply by whether
Congress authorized FCC to have some degree of regulatory
authority over the Internet. Drawing this distinction is “the
essential characteristic” of the 1996 Act. Cf. MCI Telecomms.
Corp., 512 U.S. at 231. “What we have here, in reality, is a
fundamental revision of the statute, changing it from a scheme
of” common carrier regulation for telecommunications
services, to common carrier regulation of information service
when that service merely has telecommunications services
among its component parts. Cf. id. “That may be a good idea,
but it was not the idea Congress enacted into law in 19[96].”
See id. at 232. Therein lies the problem.
 18

A.

The Major Question Of Reclassification Requires Clear
Congressional Authority

One might be tempted to say turning Internet access into a
public utility is obviously a “major question” of deep economic
and political significance—any other conclusion would fail the
straight-face test. But, the Court exhibits no such qualms. See
Op. 37–38. Of course, the Opinion does not—and cannot—
dispute the FCC’s Order implicates a “major question.”
Indeed, the Court has already characterized “net neutrality”
regulation as a “major question,” even without the distinct
salience brought by implementing “net neutrality” through
reclassifying broadband Internet access. See Verizon, 740 F.3d
at 634 (“Before beginning our analysis, we think it important
to emphasize that . . . the question of net neutrality implicates
serious policy questions, which have engaged lawmakers,
regulators, businesses, and other members of the public for
years . . . . Regardless of how serious the problem an
administrative agency seeks to address, . . . it may not exercise
its authority in a manner that is inconsistent with the
administrative structure that Congress enacted into law.”). The
problem here is the Court’s analysis—it ignores the legal
consequences flowing from the “major question”
determination.

As Chief Justice John Marshall recognized long ago, there
is a difference between “those important subjects, which must
be entirely regulated by the legislature itself, from those of less
interest, in which a general provision may be made, and power
given to those who are to act under such general provisions to
fill up the details.” See Wayman v. Southard, 23 U.S. (10
Wheat.) 1, 43 (1825). Accordingly, the deference courts afford
 19
to administrative agencies under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
is “premised on the theory that a statute’s ambiguity constitutes
an implicit delegation from Congress to the agency to fill in the
statutory gaps.” FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 159 (2000) (citing Chevron, 467 U.S. at 844);
see also La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374
(1986) (holding the FCC has “literally . . . no power to act . . .
unless and until Congress confers power upon it”). In other
words, the mere existence of “a statutory ambiguity,” see Op.
38, “is not enough per se to warrant deference to the agency’s
interpretation. The ambiguity must be such as to make it
appear that Congress either explicitly or implicitly delegated
authority to cure that ambiguity.” Am. Bar Ass’n v. Fed. Trade
Comm’n, 430 F.3d 457, 469 (D.C. Cir. 2005); see also Brown
& Williamson, 529 U.S. at 133 (requiring an agency to bear in
mind “the fundamental canon of statutory construction that the
words of a statute must be read in their context and with a view
to their place in the overall statutory scheme”).

An agency’s freedom to regulate on a matter via a statutory
ambiguity therefore turns on what Congress authorized—and
that latter determination is “shaped, at least in some measure,
by the nature of the question presented.” See id. at 125; see
also Am. Bar Ass’n, 430 F.3d at 469. Is the agency regulating
on a “major question” of deep economic and political
significance, or is it regulating on an interstitial matter? If
Congress is not going to leave “those important subjects” to
“itself,” but instead authorize an agency to regulate on them,
an implicit authorization is insufficient. “We expect Congress
to speak clearly if it wishes to assign to an agency decisions of
vast economic and political significance.” Util. Air Regulatory
Group v. EPA, 134 S. Ct. 2427, 2444 (2014) (UARG); King v.
Burwell, 135 S. Ct. 2480, 2488–89 (2015) (“[H]ad Congress
wished to assign that [extraordinary] question to an agency, it
 20
surely would have done so expressly;” requiring the Court to
interpret the statute de novo for a clear statement of
congressional authorization); Brown & Williamson, 529 U.S.
at 160 (authorizing an agency to regulate on a matter of “such
economic and political significance” would not occur “in so
cryptic a fashion”); Whitman v. Am. Trucking Ass’n, 531 U.S.
457, 468 (2001) (“Congress . . . does not alter the fundamental
details of a regulatory scheme in vague terms or ancillary
provisions—it does not, one might say, hide elephants in
mouseholes.”); MCI Telecomms. Corp., 512 U.S. at 231 (“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—and even more unlikely that it
would achieve that through such a subtle device as permission
to ‘modify’ rate-filing requirements.”).

The Court fails to fairly engage this standard of review,
both overrating the role of the statutory ambiguity here and
underrating the application of the clear statement rule to major
questions. 3 After jumping right into Chevron’s two-step
deference analysis, the Court’s Opinion treats Brand X as the

3
Unfortunately, cavalier treatment of the clear statement
requirement for major questions is not unprecedented. When
Verizon admitted “net neutrality” implicated a major question, it
quoted Brown & Williamson’s standard of review (though, perhaps
to avoid facing the clear statement rule head on, Verizon chose to
quote a case quoting Brown & Williamson, not Brown & Williamson
itself). Compare Verizon, 740 F.3d at 634 (“Regardless of how
serious the problem an administrative agency seeks to address, . . . it
may not exercise its authority in a manner that is inconsistent with
the administrative structure that Congress enacted into law.”) with
Brown & Williamson, 529 U.S. at 125. But then, Verizon did not
apply the clear statement analysis, see 740 F.3d at 634, concluding
instead that the case “is a far cry” from Brown & Williamson, despite
its supporting quotation. See id. at 638.
 21
coup de grace for any requirement of clear congressional
authorization. See Op. 32–38. Yes, Brand X did uphold the
FCC’s determination that the “offering” of
“telecommunications service” in Title II of the
Communications Act is ambiguous. See 545 U.S. at 986, 989.
But this “statutory ambiguity” does not allow the FCC to
reclassify broadband Internet access without any serious
judicial scrutiny. But see Op. 38.

The mere fact that a “statutory ambiguity” exists for some
purposes does not mean it authorizes the agency to reach major
questions—statutory context and the overall scheme must be
considered. See, e.g., UARG, 134 S. Ct. at 2441 (“[W]hile
Massachusetts rejected EPA’s categorical contention that
greenhouse gases could not be ‘air pollutants’ for any purposes
of the Act, it did not embrace EPA’s current, equally
categorical position that greenhouse gases must be air
pollutants for all purposes, regardless of the statutory context.”)
(emphasis in original); Whitman, 531 U.S. at 469 n.1 (“None
of the sections of the CAA in which the District of Columbia
Circuit has found authority for the EPA to consider costs shares
§ 109(b)(1)’s prominence in the overall statutory scheme.”).
When the statutory context and backdrop against which
Congress passed the 1996 Act are considered, as they were in
Brand X, the Supreme Court’s decision reinforces the need for
FCC to show a textual assignment of authority before it can
reclassify broadband Internet access as common carriage.

The Order posits—and the Court’s Opinion approves—an
untenable reading of Brand X: the pizzeria no longer offers
“pizza” or “pizza delivery,” it just offers “delivery.” In other
words, because the “information service” of retrieving
information from Internet websites includes
“telecommunications service,” every aspect of that
“information service” is now just a “telecommunications
 22
service.” See, e.g., Order ¶ 195. The Court tries to wave off
this problem by quickly saying Brand X “focused on the nature
of the functions broadband providers offered to end users, not
the length of the transmission pathway” Op. 33. This is true,
but it does nothing to support the Court’s position. As the
history explained above reveals, “the nature of the functions
broadband providers offered to end users” was the focus of
Brand X because the Supreme Court did not challenge the fact
that “enabl[ing] users . . . to browse the World Wide Web” is
information service. See 545 U.S. at 987. In response, the
Court’s Opinion resorts to crying wolf—claiming a full reading
of Brand X would “freeze in place the Commission’s existing
classifications of various services,” which neither Congress nor
Brand X intended. See Op. 35. But this misses the point. Yes,
Brand X found the “offering” of “telecommunications service”
ambiguous. And yes, Brand X allows FCC to assess the
“factual particulars” of changed broadband technology. See
545 U.S. at 991. But, nothing in Brand X renders the statutory
term “information service” indistinguishable from
“telecommunications service.” Computer processing at ISP
facilities remains an “enhanced service” exempt from common
carrier status under the statute. See 47 U.S.C. §§ 230(f)(2),
231(e)(4).

By incorporating FCC’s distinction between “enhanced
service” and “basic service” into the statutory scheme, and by
placing Internet access on the “enhanced service” side,
Congress prohibited the FCC from construing the “offering” of
“telecommunications service” to be the “information service”
of Internet access. See Universal Service Report ¶ 39 (“After
careful consideration of the statutory language and legislative
history, we affirm our prior findings that telecommunications
service and information service in the 1996 Act are mutually
exclusive.”) (emphasis added); see also Sekhar v. United
States, 133 S. Ct. 2720, 2724 (2013) (“[I]f a word is obviously
 23
transplanted from another legal source . . . it brings the old soil
with it.”); see also Brown v. Gardner, 513 U.S. 115, 118 (1994)
(“Ambiguity is a creature not of definitional possibilities but of
statutory context.”); cf. Brown & Williamson, 529 U.S. at 144
(“In adopting each statute, Congress has acted against the
backdrop of FDA’s consistent and repeated statements that it
lacked authority under the FDCA to regulate tobacco . . . .”).
The issue therefore, is not whether FCC can assess
technological changes to Internet access, or whether FCC has
discretion to reasonably construe the “offer” of
“telecommunications service” by considering that transmission
part of the “information service” it transmits, or considering the
transmission itself an “offer” of “telecommunications service”
separate from the “information service” it transmits. Rather,
the issue is whether FCC can use this discretion to transgress
congressional distinctions and definitions—such as the
distinction drawn between “Internet access service” and
“telecommunications services,” see 47 U.S.C. § 231(e)(4), or
the definition of “interactive computer services,” which
“means any information service . . . including specifically a
service or system that provides access to the Internet,” id. §
230(f)(2) (emphasis added). Nothing, not even Chevron
deference, makes “a statutory ambiguity,” see Op. 38, a tool to
override congressional standards.

Congress has declined to authorize “net neutrality”
legislation of any kind, let alone revisit its classification of
Internet access as outside the realm of common carrier
regulation. The FCC’s historic practice, taken together with
Congress’s refusal to cede this authority, obligates us “to defer
not to the agency’s expansive construction of the statute, but to
Congress’[s] consistent judgment.” See Brown & Williamson,
529 U.S. at 160.

B.
 24

No Clear Congressional Authority To Reclassify

“Since an agency’s interpretation of a statute is not entitled
to deference when it goes beyond the meaning that the statute
can bear, the Commission’s . . . policy can be justified only if
it makes a less than radical or fundamental change in the Act .
. . . The Commission’s attempt to establish that no more than
that is involved greatly understates the extent to which its
policy deviates from the [Act’s] requirement[s], and greatly
undervalues the importance of the [Act’s] requirement[s].”
MCI Telecomms. Corp., 512 U.S. at 229; see also UARG, 134
S. Ct. at 2442 (“Thus, an agency interpretation that is
inconsisten[t] with the design and structure of the statute as a
whole . . . does not merit deference.”).

Perhaps this explains why the Court’s Opinion foregoes a
statutory analysis. On issue after issue, the Court puts agency
ipse dixit where reasoned analysis should be:

First, as to the 1996 Act’s policy statements, the Court
simply parrots the Commission’s speculation that it is “unlikely
[] Congress would attempt to settle the regulatory status of
broadband Internet access services in such an oblique and
indirect manner, especially given the opportunity to do so when
it adopted the Telecommunications Act of 1996.” See Op. 34–
35. But the clear statement rule requires reading the statute,
not nodding along with the agency. Broadband Internet access
may be more sophisticated than Internet access from the 1990s,
but this does not change the nature of broadband Internet
access. Cf. Brand X, 545 U.S. at 992 (“In any event, we doubt
that a statute that, for example, subjected offerors of ‘delivery’
service (such as Federal Express and United Parcel Service) to
common-carrier regulation would unambiguously require
pizza-delivery companies to offer their delivery services on a
 25
common carrier basis [too].”). 4 The Act’s policy statements
are fulfilled in specific statutory provisions, but the Court’s
Opinion ignores them.

Second, the Court’s Opinion makes mincemeat of Verizon
and sends the Universal Service Report silently into the night.
The Order here claims the Universal Service Report was “not
a binding Commission order.” Order ¶ 315. This is as
inexplicable as it is unexplained. The Order provides no
principled reason why the Universal Service Report—a report
of FCC Commissioners to Congress—should be dismissed, nor
why the FCC’s repeated citation to the Universal Service
Report in prior Orders should be ignored. The Court is silent
on this issue, and its assessment of Verizon is revisionist
history. It claims FCC “did not believe” Verizon left it with
any choice but to reclassify broadband Internet access as a
“telecommunications service” if it wished to implement “net
neutrality” principles. See Op. 43. But as Verizon’s upholding
of FCC’s transparency rules, the statements from FCC
Chairman Wheeler, and this Order’s Notice of Proposed
Rulemaking together confirm, this is false. The FCC identified
a path to implement some “net neutrality” regulation without
reclassification. The Court just ignores it.

4
Nor, incidentally, does the Act’s exclusion from “information
service” those services that are “the management, control, or
operation of a telecommunications system or the management of a
telecommunications [purpose]” provide the Court or the
Commission any assistance. See 47 U.S.C. § 153(24). A contrary
conclusion would mean that Congress in 1996 considered Internet
access, and all its computer-processing functions, a “basic service,”
able to be provided by the Bell System companies. There is no
evidence of that in the Act, FCC’s longstanding practice, or in Brand
X.
 26
Third, the Court nonsensically permits mobile
broadband’s reclassification by embracing the Order’s
redefinition of “the public switched network.” The Court’s
Opinion, like the Order, redefines “the public switched
network” to “encompass devices using both IP addresses and
telephone numbers.” See Op. 66. Since mobile broadband
Internet access allows users to access Voice-over-Internet-
Protocol (“VoIP”) applications (such as Skype), the Court
concludes mobile broadband “gives subscribers the capability
to communicate to telephone users.” See id. at 67. But the
backdrop against which Congress enacted the 1996 Act
confirms the FCC never defined “the public switched network”
to mean anything other or beyond the telephone network, and
certainly not public IP addresses. 5 Indeed, Congress itself
distinguished “the public switched network” and the Internet.
When Congress passed the Spectrum Act of 2012, it
distinguished “connectivity” to “the public Internet” from
“connectivity” to “the public switched network.” See 47
U.S.C. § 1422(b)(1). This subsequent, specific distinction can

5
Time and again leading up to the Telecommunications Act of 1996,
the FCC equated “the public switched network” with the telephone
network. This was the case in 1981. See Applications of Winter Park
Tel. Co., Mem. Op. and Order, 84 FCC 2d 689, 690 ¶ 2 n.3 (1981).
This Court said the same in 1982. See Ad Hoc Telecomms. Users
Comm. v. FCC, 680 F.2d 790, 793 (D.C. Cir. 1982). This equation
provided a key premise to the FCC’s cell service policy in 1992. See
Amendment of Part 22 of the Commission’s Rules Relating to
License Renewals in the Domestic Public Cellular Radio
Telecommunications Service, FCC 91-400, 7 FCC Rcd. 719, 720 ¶
9 (1992). Indeed, the calls to expand “the public switched network”
to include the “network of networks,” cited in the current Order,
were rejected by FCC in 1994. Compare Implementation of Sections
3(n) and 332 of the Communications Act; Regulatory Treatment of
Mobile Services, FCC 94-31, 9 FCC Rcd. 1411, 1433–34 ¶ 53, 1436–
37 ¶ 59 (1994) with Order ¶ 396 n. 1145.
 27
inform what “the public switched network” meant to Congress
in 1996. See Brown & Williamson, 529 U.S. at 133 (“[T]he
meaning of one statute may be affected by other Acts,
particularly where Congress has spoken subsequently and more
specifically to the topic at hand.”). The Court has no basis to
claim it is “counter-textual” to equate “the public switched
network” with “the public switched telephone network.” See
Op. 65 (emphasis omitted). Not even the Court can claim VoIP
services make mobile broadband and the telephone network a
single network. See id. at 67 (“[T]he VoIP service sends the
call from her tablet’s IP address over the mobile broadband
network to connect to the telephone network and, ultimately, to
her friend’s home phone.”) (emphasis added). Nothing about
the increase of consumers accessing mobile broadband Internet
service via smart phones, see id. at 68–69, the speed of Internet
connection, id. at 69, or the “bundling” of VoIP applications
with smart phones, id. at 69–70, undermines the FCC’s 2007
distinction between the transmission of VoIP traffic and the
VoIP service to the end user. Mobile broadband Internet access
simply does not constitute a service interconnected with “the
public switched network.”

Fourth, the Court lets FCC get away with satisfying none
of the statutory requirements to forbear common carriage
regulation. The judiciary should take care to ensure the
Commission rigorously applies these standards in accordance
with the 1996 Act’s overall scheme. Even as forbearance is
designed to further freedom in the 1996 Act, giving an agency
power to eviscerate statutory requirements is “astonishing even
by administrative standards.” See Phillip Hamburger, IS
ADMINISTRATIVE LAW UNLAWFUL? 121 (2014). Under our
Constitution, “[t]here is no provision . . . that authorizes the
President [or any executive agency] to enact, to amend, or to
 28
repeal statutes.” Clinton v. City of New York, 524 U.S. 417,
438 (1998). 6

“[T]he power to enact statutes may only be exercised in
accord with a single, finely wrought and exhaustively
considered, procedure.” Id. at 439–440. This power is
intrinsically legislative; it cannot be delegated away from the
legislature. When Congress has delegated authority allowing
the “suspension” or “repeal” of statutory provisions, “Congress
itself made the decision to suspend or repeal the particular

6
The FCC’s rulemaking here may “take [a] ‘legislative’ . . . form[],
but [it] [is] [an] exercise[] of—indeed under our constitutional
structure [it] must be [an] exercise[] of—the ‘executive Power.’” See
City of Arlington v. FCC, 133 S. Ct. 1863, 1873 n.4 (2013) (emphasis
in original); FCC v. Fox TV Stations, Inc., 556 U.S. 502, 524–25
(2009) (“In [Justice Stevens’] judgment, the FCC is better viewed as
an agent of Congress than as part of the Executive. . . . Leaving aside
the unconstitutionality of a scheme giving the power to enforce laws
to agents of Congress, it seems to us that Justice [Stevens’]
conclusion does not follow from his premise.”) (emphasis added);
see also 47 U.S.C. § 151 (creating the FCC to “execute and enforce
the provisions of this [Act]”). Moreover, there is an argument that,
though a nominally independent agency, the FCC, as a general
matter, should be treated like an executive agency because Congress
never created a for-cause removal statute prohibiting “the President
[from] supervis[ing], direct[ing], and remov[ing] at will the” FCC
Commissioners. See PHH Corp. v. Consumer Fin. Prot. Bureau, 839
F.3d 1, 18 n.4 (D.C. Cir. 2016). “We need not tackle that question
in this case,” however, id., because the rulemaking exercised here
facilitates a change in the execution and enforcement of the Act—
this must be executive Power, see City of Arlington, 133 S. Ct. at
1873 n.4; Fox TV Stations, 556 U.S. at 525 (“The Administrative
Procedure Act, after all, does not apply to Congress and its agencies,”
only to executive agency action).
 29
provisions at issue upon the occurrence of particular events
subsequent to enactment, and it left only the determination of
whether such events occurred up to the President,” or in this
case, the FCC. See id. at 445 (emphasis added). In other
words, only Congress may alter statutory standards—an
agency or the President is left simply to make factual findings
about whether those legal standards should apply.

Yet, as Judge Williams noted in his opinion here, “the
Commission’s massive forbearance [came] without findings
that the forbearance is justified” under the statute’s conditions.
See Concurring & Dissenting Op. 62; see also id. at 62–69.
Both the FCC and the Court found reclassifying Internet access
as a “telecommunications service,” coupled with forbearance,
would be within FCC’s power even without a change in the
underlying factual circumstances of Internet access. See Order
¶ 360 n.993; Op. 47. In other words, the Court concludes the
FCC’s forbearance need not have anything to do with factual
findings—the Commission is free to rewrite statutory terms as
it sees fit. Used in this way, forbearance usurps the
exclusively-legislative function of lawmaking because, “[i]n
both legal and practical effect, the [FCC] has amended [an]
Act[] of Congress by repealing [or amending] a portion.” See
Clinton, 524 U.S. at 438; see also UARG, 134 S. Ct. at 2446
n.8 (I am “aware of no principle of administrative law that
would allow an agency to rewrite such [] clear statutory
term[s], and [I] shudder to contemplate the effect that such a
principle w[ill] have on democratic governance”).

Troubling as the failure to follow the Act’s requirements
is, that is not the FCC’s only abuse. It also used forbearance to
pervert the Act’s requirements.

C.
 30
Perversion Of Forbearance Authority

FCC’s use of its forbearance authority confirms this Order
is “an enormous and transformative expansion [of its]
regulatory authority without clear congressional authorization”
and, thus, “unreasonable.” UARG, 134 S. Ct. at 2444 n.8. By
the FCC Chairman’s own admission, the Act’s common carrier
regulations do not contemplate broadband Internet access. So,
the Order cannot merely reclassify broadband Internet access,
it must also “modernize Title II, tailoring it for the 21st
century.” Tom Wheeler, FCC Chairman Tom Wheeler: This is
How We Will Ensure Net Neutrality, WIRED (Feb. 4, 2015,
11:00 AM), https://www.wired.com/2015/02/fcc-chairman-
wheeler-net-neutrality/. As the Chairman conceded, this
required “taking the legal construct that once was used for
phone companies and pairing it back to modernize it.” FCC
Proposes Treating All Internet Traffic Equally, PBS
NEWSHOUR (PBS television broadcast Feb. 4, 2015, 6:35 PM),
http://www.pbs.org/newshour/bb/fcc-proposes-treating-all-
internet-traffic-equally.

The Order acknowledges its tailoring of the Act’s
common carrier requirements so as to capture broadband
Internet access is “extensive,” “broad,” “[a]typical,” and
“expansive”—including at least 30 Title II provisions and 700
rules promulgated under them. See Order ¶¶ 37, 51, 438, 461,
493, 508, 512, 514. The Order also says this level of
forbearance results in a modernization of Title II “never”
before contemplated. See id. ¶¶ 37, 38. The Court’s Opinion
and the Order disregard the nature of forbearance.

Forbearance permits the FCC to reduce common carriage
regulation over telecommunications, not expand common
carriage regulation by reclassifying an information service and
shaping common carriage regulations around it. The FCC has
 31
consistently understood this, invoking forbearance toward one
of “Congress’s primary aims in the 1996 Act:” “deregulate
telecommunications markets to the extent possible.” See, e.g.,
Memorandum Op. & Order, Petition of Qwest Corp. for
Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha
Metro. Statistical Area, 20 FCC Rcd. 19415, 19454 (2005); see
also Petition of ACS of Anchorage, Inc. Pursuant to Section 10
of the Commc’ns Act of 1934, as Amended, for Forbearance
from Sections 251(c)(3) & 252(d)(1) in the Anchorage Study
Area, 22 FCC Rcd. 1958, 1969 ¶ 16 (2007) (referring to the
“deregulatory aims” of FCC’s statutory forbearance authority).
The Court, however, makes an argument foreign to the 1996
Act. The Opinion claims “the rapid deployment of new
telecommunications technologies” “might occasion the
promulgation of additional regulation.” Op. 97. Congress,
however, clearly did not consider the 1996 Act’s goals—
promoting competition and reducing regulation—in tension
with “the rapid deployment of new telecommunications
technologies.” Rather, the Act’s obvious reading is that more
competition and lower regulation would lead to increased
deployment of new telecommunications technologies. The
ensuing history of Internet innovation vindicated Congress’s
policy choice. Understanding the expansion of common carrier
regulation as an affirmative good, as the Court seems to do, is
foreign to the Act.

There is a sad irony here. Both this Court and the
Supreme Court admonished the FCC for asserting forbearance
authority without congressional authorization when the
Commission’s aim was deregulatory. Now, when the
Commission’s aim is to increase regulation, this Court is
willing to bless the Commission using forbearance without any
satisfaction of the statutory requirements, and at odds with the
nature of forbearance itself.
 32
UARG cited generally-applicable tenets of administrative
law and the separation of powers—not some Clean Air Act
novelty—when it said “[a]n agency has no power to ‘tailor’
legislation to bureaucratic policy goals by rewriting
unambiguous statutory terms.” 134 S. Ct. at 2445. The Court
blithely ignores its “severe blow to the Constitution’s
separation of powers” by reading the FCC’s forbearance
authority to expand, rather than lessen, common carrier
regulation at the legislature’s expense. See id. at 2446. The
Court provides no answer to the problems of public
accountability and individual liberty with its mere assertion of
forbearance being a “statutory mandate.” Compare Op. 41 with
Clinton, 524 U.S. at 451–52 (Kennedy, J., concurring). If the
FCC is to possess statutory forbearance authority, it should
conform to forbearance’s statutory conditions and the overall
statutory scheme. Neither is the case here. The FCC’s abuse
of forbearance amounts to rewriting the 1996 Act in the bowels
of the administrative state, when it should petition Congress for
these purportedly-necessary changes.

IV.

Presidential Interference

When all the statutory somersaults, revisionist history, and
judicial abdication are done, we are still left with a lingering
question: Why, on the verge of announcing a new Open
Internet Order in 2014 that both implemented “net neutrality”
principles and preserved broadband Internet access as an
“information service,” would the FCC instead reclassify
broadband Internet access as a public utility? Simple.
President Obama pressured the FCC to do it. This Court once
held “an agency may not repudiate precedent simply to
conform with a shifting political mood.” Nat’l Black Media
 33
Coal. v. FCC, 775 F.2d 342, 356 n.17 (D.C. Cir. 1985). Alas,
here we see the exception that kills the rule.

The FCC released its Notice of Proposed Rulemaking in
May of 2014—where it was clear that broadband Internet
would not be reclassified for common carrier regulation.
Afterward, “an unusual, secretive effort” began “inside the
White House” with activists interested in getting the FCC to
change its position. See G. Nagesh & B. Mullins, Net
Neutrality: How White House Thwarted FCC Chief, WALL ST.
J. (Feb. 4, 2015). White House staffers were directed “not to
discuss the process openly.” Id. One can see why—the FCC
is, after all, supposed to be independent from Presidential
control. See, e.g., Humphrey’s Ex’r v. United States, 295 U.S.
602, 624–26 (1935).

In addition to the White House’s private meetings, the
President issued an online video (from China, without any
irony) urging the subjugation of broadband Internet access to
common carrier regulation. See G. Nagesh & B. Mullins, Net
Neutrality: How White House Thwarted FCC Chief, WALL ST.
J. (Feb. 4, 2015); see also The President’s Message On Net
Neutrality (Nov. 10, 2014), https://www.whitehouse.gov/net-
neutrality (“To put these protections in place, I am asking the
FCC to reclassify Internet service under Title II of a law known
as the Telecommunications Act.”). In the President’s written
statement, he said this reclassification should be facilitated by
“at the same time forbearing from rate regulation and other
provisions less relevant to broadband services.” Id.

The President’s statements “stunned officials at the FCC;”
“the statement[s] boxed in [the FCC Chairman] by giving the
FCC’s two other Democratic commissioners cover to vote
against anything falling short of [the President’s] position.” G.
Nagesh & B. Mullins, Net Neutrality: How White House
 34
Thwarted FCC Chief, WALL ST. J. (Feb. 4, 2015). Moreover,
President Obama’s statements were issued “outside of the
window that the FCC had set for public comments,” but the
FCC accepted them anyway. See Kathryn A. Watts,
Controlling Presidential Control, 114 MICH. L. REV. 683, 741
(2016); see also The Path To A Free And Open Internet,
https://www.whitehouse.gov/net-neutrality (identifying in a
timeline that “[t]he FCC’s comment period c[ame] to a close”
on September 15, 2014, but “President Obama call[ed] on the
FCC to take up the strongest possible rules to protect net
neutrality” on November 10, 2014).

The President’s efforts “essentially killed the
compromise” of “net neutrality” without reclassification. G.
Nagesh & B. Mullins, Net Neutrality: How White House
Thwarted FCC Chief, WALL ST. J. (Feb. 4, 2015). The FCC
Chairman promptly delayed release of the new Order to
consider the President’s position. See FCC Chairman Tom
Wheeler’s Statement on President Barack Obama’s Statement
Regarding Open Internet (Nov. 10, 2014),
https://apps.fcc.gov/edocs_public/attachmatch/DOC-
330414A1.pdf. “On February 26, 2015, the FCC voted 3-2
along party lines to regulate broadband Internet service as a
public utility under Title II of the Communications Act, thus
voting for net neutrality rules aligned with [President] Obama’s
own plan.” Watts, Controlling Presidential Control, 114
MICH. L. REV. at 741.

There is a wide spectrum of agreement that the President’s
intervention into the FCC’s deliberations was, with respect to
broadband’s reclassification, outcome determinative. This
spectrum includes a former Special Assistant to President
Obama and current “net neutrality” advocate. See Susan
Crawford, A Tale of Two Commissioners, BACKCHANNEL
(May 26, 2015), https://backchannel.com/how-the-fcc-found-
 35
its-backbone-960331bfac95#.s1rj231ui (“[T]he FCC, although
an independent agency, can read the President’s speeches like
everyone else, sense the change in the wind, and act
accordingly.”). It includes a dissenting FCC Commissioner.
See Order (dissenting statement of Commissioner Ajit Pai)
(“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.”). It includes
a Report from the Majority Staff of the Senate Committee on
Homeland Security and Governmental Affairs, which
investigated the White House’s involvement in the FCC’s
deliberations. See Majority Staff Report, Committee on
Homeland Security and Governmental Affairs (Ron Johnson,
Chairman), Regulating The Internet: How The White House
Bowled Over FCC Independence, *2 (Feb. 29, 2016)
http://www.hsgac.senate.gov/download/regulating-the-
internet-how-the-white-house-bowled-over-fcc-independence
(citing internal FCC correspondence to conclude, the
“influence [of President Obama] was disproportionate relative
to the comments of members of the public,” and that his
involvement created a “pause” within the FCC’s deliberations
so to build a legal argument for reclassification). It also
includes law professors ultimately sympathetic with the
President’s intervention. See, e.g., Watts, Controlling
Presidential Control, 114 MICH. L. REV. at 719 (“Pai is clearly
correct that President Obama played a key causal role in the
FCC’s shift in its approach and ultimate decision to reclassify
broadband.”).

Despite President Obama’s “key causal role” behind the
FCC’s reclassification flip, his involvement goes virtually
unmentioned in the Order. In the course of the Order’s
 36
hundreds of pages and more than a thousand footnotes, there
is one, indirect, reference to President Obama’s advocacy,
buried in the middle of a footnote. See Order ¶ 416 n. 1223
(quoting a letter asking whether “the President’s push for Title
II reclassification would affect” a company’s broadband
investments). Despite the FCC’s dearth of reference to the
President’s involvement, two footnotes within the Order
contain citations to sources characterizing the approach the
FCC would ultimately take toward “net neutrality” as President
Obama’s “plan.” See Order ¶ 40 n. 35, ¶ 416 n. 1220.

The President’s conduct—and the involvement of White
House staff more generally—raise questions about the form
and substance of executive Power. Unfortunately, none of
these questions were addressed by the Court. Given the
salience of these questions to our Constitution’s separation of
powers, this Court owed the American people a legal analysis,
not silent obedience.

A.

A Double Standard

The questions of form raised by the President’s
involvement concern the rulemaking procedures designed to
ensure public accountability—namely, the FCC’s regulations
on ex parte communications and adherence to notice and
comment requirements. To be sure, rulemaking is not a
“rarified technocratic process, unaffected by political
considerations or the presence of Presidential power.” Sierra
Club v. Costle, 657 F.2d 298, 408 (D.C. Cir. 1981). And, as
we have held, “the need for disclosing ex parte conversations
in some settings do[es] not require that courts know the details
of every White House contact . . . .” See id. at 407. The FCC,
 37
however, has its own rules regarding ex parte contacts, and the
White House would be aware of them.

The Order’s Notice of Proposed Rulemaking referred to
and detailed some of the FCC’s ex parte requirements. See
Notice of Proposed Rulemaking 5624–25 ¶ 181 (citing, inter
alia, FCC’s ex parte rules, at 47 C.F.R. §§ 1.1200 et seq.). FCC
Chairman Wheeler said the Commission would “incorporate
the President’s submission into the record of the Open Internet
Proceeding,” FCC Chairman Tom Wheeler’s Statement on
President Barack Obama’s Statement Regarding Open
Internet (Nov. 10, 2014),
https://apps.fcc.gov/edocs_public/attachmatch/DOC-
330414A1.pdf. But, neither the Chairman’s statement nor the
Order explain why the President was allowed to make his
submission after the comment period expired. See Watts,
Controlling Presidential Control, 114 MICH. L. REV. at 741.
Nor does the Commission ever explain why further public
comment was not solicited after the President intervened—
despite the Chairman stating he welcomed further comment.
The Order’s record does not establish whether the
communications between White House staffers and the FCC
satisfied the Commission’s regulations on ex parte
communications (or why these communications were exempt
from these rules). See Majority Staff Report, Committee on
Homeland Security and Governmental Affairs (Ron Johnson,
Chairman), Regulating The Internet: How The White House
Bowled Over FCC Independence, *25 (Feb. 29, 2016)
http://www.hsgac.senate.gov/download/regulating-the-
internet-how-the-white-house-bowled-over-fcc-independence
(“The documents reviewed by the Committee make clear that
Chairman Wheeler regularly communicated with presidential
advisors. None of the communications reviewed by the
Committee were submitted to the FCC’s formal record in the
form of ex parte notices although the [Open Internet] Order
 38
was clearly discussed.”). The White House had reason to know
of its obligations under the FCC’s ex parte rules. See, e.g.,
Memorandum from Deputy Assistant Attorney Gen. John O.
McGinnis to the Deputy Counsel to President George H. W.
Bush, 15 Op. O.L.C. 1, 1 (Jan. 14, 1991) (assessing the
propriety of ex parte communications between White House
officials and the FCC, concluding that “communications by the
White House must be disclosed in the FCC rulemaking record
if they are of substantial significance and clearly intended to
affect the ultimate decision”) (emphasis added). In short, the
Order and its administrative record leave us with many
questions about the involvement of the President and his
staff—questions made significant by us knowing enough to
know that the President’s involvement was outcome
determinative.

Perhaps the involved parties thought the President’s public
advocacy of “net neutrality” through reclassifying broadband
Internet access provided sufficient accountability; excusing the
White House from following the FCC’s rules. Perhaps the
FCC paid no mind to the matter because of the many filed
comments endorsing some form of “net neutrality” regulation
during the comment period. Whatever the thinking, this course
“effectively created two very different proceedings: First there
was the FCC’s conventional notice-and-comment proceeding
replete with its formalized procedures and deadlines regarding
the submission of comments and ex parte contacts. Next
emerged a different, more real-world proceeding,” the one
where the President provided outcome-determinative
influence. See Watts, Controlling Presidential Control, 114
MICH. L. REV. at 741. This “leav[es] the notice-and-comment
proceeding and the political proceeding disconnected from one
another and mak[es] the notice-and-comment process look like
no more than a smokescreen.” See id. Rules are only for
Americans who lack friends in high places.
 39

To be clear, I am not suggesting the President has no
legitimate means of interjecting himself into an agency’s
rulemaking process. Nor am I suggesting that the President
should not bring an independent agency’s executive actions
within the Executive Branch. See Free Enter. Fund. v. Pub.
Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010) (“One
can have a government that functions without being ruled by
functionaries, and a government that benefits from expertise
without being ruled by experts. Our Constitution was adopted
to enable the people to govern themselves, through their elected
leaders. The growth of the Executive Branch, which now
wields vast power and touches almost every aspect of daily life,
heightens the concern that it may slip from the Executive’s
control, and thus from that of the people.”). Rather, my
assertion follows from the nature of executive Power.

Executive Branch authority over the execution and
enforcement of existing law is, in part, meant to ensure our
government’s republican form—thereby remaining publicly
accountable. Some Presidents, in the name of shaping an
agency’s direction, “might accept a novel practice that violates
Article II,” but “‘the separation of powers does not depend on
the views of individual Presidents . . . .’” PHH Corp., 839 F.3d
at 35 (quoting Free Enterprise Fund, 561 U.S. at 497). The
Constitution’s structural features are, themselves, legal
procedures designed to safeguard liberty by preserving public
accountability against the current moment’s political priorities.
A President may attempt to shape an agency’s deliberations so
as to vindicate the Constitution’s structural allocation of power;
ensuring the exercise of executive Power is consistent with the
publicly-accountable executive. See, e.g., Costle, 657 F.2d at
405 (“The executive power under our Constitution, after all, is
not shared[;] it rests exclusively with the President. . . . [T]he
Founders chose to risk the potential for tyranny inherent in
 40
placing power in one person, in order to gain the advantages of
accountability fixed on a single source.”). But if the means by
which the President seeks to shape the agency’s deliberations
transgress legal procedures designed to ensure public
accountability—like notice-and-comment requirements and
rules regarding ex parte communications—he undermines the
accountability rationale for confining executive Power to the
President. Cf. Elena Kagan, Presidential Administration, 114
HARV. L. REV. 2245, 2332 (2001) (characterizing “the degree
to which the public can understand the sources and levers of
bureaucratic action” as a “fundamental precondition of
accountability in administration”). Acting with concern for
public accountability seems especially salient when the
President “and his White House staff” seek to exert influence
over the direction of an ostensibly-independent agency. Cf.
Costle, 657 F.2d at 405–06 (“In the particular case of EPA,
Presidential authority is clear since it has never been
considered an ‘independent agency,’ but always part of the
Executive Branch.”). Perchance something else explains the
White House’s conduct here than attempting to confine the
exercise of executive Power to the President. But, rather than
acknowledge the double standard the President’s involvement
created between the American People and their Chief
Executive, the FCC opted for the silent treatment. This Court
has no such luxury. “[S]ome might think that judges should
simply defer to the elected branches’ design of the
administrative state. But that hands-off attitude would flout a
long, long line of Supreme Court precedent.” PHH Corp., 839
F.3d at 35. Unfortunately, under this Court’s Opinion, the
American People will never know quite how the government
came to regulate their Internet access so pervasively.

B.
 41
Reclassification Is Not A “Faithful” Execution Of Existing
Law

The questions of substance regarding the President’s
involvement here go to the core of our Constitution’s
separation of executive and legislative Power.

The nature of executive Power differs depending upon
whether the President is executing law, or seeking a change in
existing law. In the former context, the President is required
to “faithfully” execute the law. See U.S. CONST. Art. II, § 3, cl.
5; 7 see also Robert G. Natelson, The Original Meaning of the
Constitution’s “Executive Vesting Clause,” 31 WHITT. L. REV.
1, 14 & n.59 (2009) (discussing Article II’s Take Care Clause
as a “power-conferring” text historically “reminiscent” of
“royal instructions” to act as an agent). “In the framework of
our Constitution, the President’s power to see that the laws are
faithfully executed refutes the idea that he is to be a lawmaker.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587
(1952); United States v. Midwest Oil Co., 236 U.S. 459, 505
(1915) (“The Constitution does not confer upon [the President]
any power to enact laws or to suspend or repeal such as the
Congress enacts.”). The lawmaking power belongs exclusively
to Congress, not to agencies. See City of Arlington, 133 S. Ct.
at 1873 n.4. When the President petitions Congress to change
the law, however, he, necessarily, need not advocate a position
“faithful” to existing law. See U.S. CONST. Art. II, § 3, cl. 2

7
The President’s obligation under the Take Care Clause does not
extend to laws the President considers unconstitutional, nor does it
prohibit prosecutorial discretion. But, otherwise, “the Executive has
to follow and comply with laws regulating the executive branch.”
See Brett M. Kavanaugh, Our Anchor for 225 Years and Counting:
The Enduring Significance of the Precise Text of the Constitution, 89
NOTRE DAME L. REV. 1907, 1911 (2014).
 42
(authorizing the President to “recommend such measures as he
shall judge necessary and expedient”).

To be sure, the creation of agency rules can muddle these
distinct aspects of executive Power. “Because most regulatory
statutes have multiple goals and are not written with crystal
clarity, the agency often has considerable interpretational
leeway before it steps over the statutory line, and the President
may attempt to push the agency as close to that line as
possible.” Thomas O. McGarity, Presidential Control of
Regulatory Agency Decisionmaking, 36 AM. U.L. REV. 443,
454 (1987). Our Constitution ensures that the line remains,
however. Cf. THE FEDERALIST NO. 73 (Hamilton), p. 441
(Clinton Rossiter ed., 1961) (adhering to the separation of
powers avoids “the legislative and executive powers . . .
com[ing] to be blended in the same hands”). “An activist
President with control over the rulemaking process could use
his power to press agencies beyond statutory limits that he was
unable to persuade Congress to remove. Such a President
would be guilty of unfaithful execution of the laws.”
McGarity, Presidential Control of Regulatory Agency
Decisionmaking, 36 AM. U.L. REV. at 455. A “related
problem” “occurs when members of the President’s staff
attempt to implement their own policy agendas in the name of
the President.” See id. Given the outcome-determinative
nature of the President’s involvement on the reclassification of
broadband Internet access—and the clarity with which
Congress set forth its deregulatory policy and standards in the
1996 Act—the question of how the President upheld his Take
Care Clause obligation in urging the FCC to reclassify Internet
access arises.

Here, the President did not ask the FCC to enforce “a
congressional policy . . . in a manner prescribed by Congress;”
instead, he called on FCC to “execute” a “presidential policy”
 43
preference on net neutrality “in a manner prescribed by the
President.” Youngstown, 343 U.S. at 588. The President did
not ask Congress to reclassify broadband Internet access as a
“telecommunications service” and implement “net neutrality”
through public utility regulation. Rather, the President urged
the FCC to reject Congress’s deregulatory aims and its
classification of Internet access to further his preferred
approach to “net neutrality.” As explained above, the
classification of Internet access as “information service” is a
core feature of the 1996 Act. The use of forbearance to lessen,
rather than expand common carrier regulation, and the
prohibition on treating mobile broadband Internet access as
common carriage are all part of the 1996 Act’s deregulatory
text, history, and structure. Nevertheless, the President sought
to change this law not by petitioning Congress, but by
influencing the FCC’s deliberations over how to enforce
existing law. The President’s conduct collapsed the distinction
between his constitutional authority to seek changes in the law
from the legislature, and his constitutional obligation to
faithfully execute the law passed by Congress when interacting
with the agency charged with executing the law.

The President’s obligation to “faithfully” execute existing
law limits the realm of reasonable constructions he can provide
to those charged with enforcing existing law. For example,
during the “Quasi War” with France, Congress passed a statute
permitting the seizure of any U.S. ship bound for France or its
dependent powers. When President Adams sent the statute to
the military for execution, he reinterpreted the statute—
allowing for the seizure of any U.S. ship going “to or from
Fr[e]nch ports.” See Little v. Barreme, 6 U.S. (2 Cranch) 170,
178 (1804) (emphasis added). The Supreme Court affirmed the
Circuit Court’s finding that the seizure of a U.S. ship from
French-controlled Haiti (then Jérémie) to Danish-controlled St.
Thomas was invalid. Writing for the Court, Chief Justice
 44
Marshall said it did not matter that the President’s construction
was motivated by it being “obvious[] that if only vessels sailing
to a French port could be seized on the high seas that the law
would very often be evaded.” Id. Congress, the Marshall Court
said, “prescribed [] the manner in which this law shall be
carried into execution,” and that “was to exclude a seizure of
any vessel not bound to a French port.” Id. at 177–78.
President Adams, however, gave it a “different construction,”
id. at 178, one at odds with what Congress passed in both the
statute’s “general clause” stating its purpose and the statute’s
more specific limitations, id. at 177–78.

Similarly here, 8 the President urged the FCC to adopt a
construction of Internet classification at odds with both the
“general clause[s]” of the 1996 Act’s deregulatory policy and
the statute’s more specific definitions of “interactive computer
service,” “information service,” “Internet access service,”
“interconnected service,” and “the public switched network.”
No doubt the President thought reclassifying broadband
8
That the military is under the President’s command and the FCC is
an independent agency is of no moment here. The issue here is not
the scope of the President’s authority to enforce the law (i.e., the
extent to which the President can “direct” the FCC to act). Rather,
the issue here is the nature of the authority the President exercises
when seeking to change the enforcement of existing law.
Enforcement authority cannot be conflated with the President’s
separate and distinct ability to petition for changes in existing law
itself. Nevertheless, as explained above, that is what the President
attempted. It is no answer to say the President’s action is not subject
to judicial direction. See Mississippi v. Johnson, 71 U.S. (4 Wall.)
475, 499 (1867). I do not dispute that the Court cannot issue an order
directing the President’s “exercise of judgment” in law enforcement.
See id. What is within this Court’s determination, however, is
whether the Order at issue faithfully executes existing law. It does
not, and it does not because of the construction set forth by the
President.
 45
Internet access better captured the on-the-ground realities of
Internet access. But, as in Barreme, Congress “prescribed []
the manner in which this law shall be carried into execution,”
and the President is limited to urging the execution of existing
law with legal constructions that faithfully execute what
Congress enacted. See id. at 177–78. As Justice Jackson
famously put it, “[w]hen the President takes measures
incompatible with the expressed or implied will of Congress,
his power is at its lowest ebb.” Youngstown, 343 U.S. at 637
(Jackson, J., concurring).

The President’s intervention did not result from a “failure
of Congress to legislate” on the issue of Internet access
regulation, but because he desired “a different and inconsistent
way of his own” respecting that regulation. See id. at 639
(Jackson, J., concurring). The fact that Congress has, up until
now, decided not to revise its 1996 Act with legislation
amenable to President Obama’s view of Internet regulation
does not mean Congress has “failed” to act. Congress “acted”
with respect to the classification of Internet access service in
1996—if President Obama thought a reclassification was
needed, then Congress was the place to go. See, e.g., id. at 603
(Frankfurter, J., concurring) (explaining that, five years before
President Truman’s steel seizure, “Congress said to the
President, ‘You may not seize. Please report to us and ask for
seizure power if you think it is needed in a specific situation.’”).
Nothing about our Constitution’s deliberative legislative
structure is meant to facilitate a one-way ratchet in the
President’s favor. See id. at 604 (Frankfurter, J., concurring)
(“The need for new legislation does not enact it. Nor does it
repeal or amend existing law.”); THE FEDERALIST NO. 73
(Hamilton) p. 442 (Clinton Rosseiter ed., 1961) (“It may
perhaps be said that the power of preventing bad laws includes
that of preventing good ones . . . . But this objection will have
little weight with those who can properly estimate the
 46
mischiefs of that inconstancy and mutability in the laws . . . .
They will consider every institution calculated to . . . keep
things in the same state in which they happen to be at any given
period as much more likely to do good than harm.”). Nor does
the Constitution give the President an “I’m-frustrated-with-
democracy” exception to Bicameralism and Presentment;
allowing him to petition the FCC, rather than Congress, for a
change in existing law. See NLRB v. Noel Canning, 134 S. Ct.
2550, 2567 (2014) (“It should go without saying . . . that
political opposition in the Senate would not qualify as an
unusual circumstance” allowing the President to disregard
constitutional limitations).

“With all its defects, delays and inconveniences, men have
discovered no technique for long preserving free government
except that the Executive be under the law, and that the law be
made by parliamentary deliberations. . . . [I]t is the duty of the
Court to be last, not first, to give [these institutions] up.”
Youngstown, 343 U.S. at 655 (Jackson, J., concurring). This
issue deserved much more scrutiny than the silence given to it
by this Court.

V.

This Order shows signs of a government having grown
beyond the consent of the governed: the collapsing respect for
Bicameralism and Presentment; the administrative state
shoehorning major questions into long-extant statutory
provisions without congressional authorization; a preference
for rent-seeking over liberty. This Court had an opportunity to
see the wisdom of the “Man Controlling Trade” statue on
Constitution Avenue, but we are no longer on the
Constitution’s path. Hopefully, there is a clearer view of the
road back to a government of limited, enumerated power from
 47
One First Street in our Capital City. In that hope, I respectfully
dissent from the Court’s denial of rehearing en banc.
 KAVANAUGH, Circuit Judge, dissenting from the denial
of rehearing en banc:

The FCC’s 2015 net neutrality rule is one of the most
consequential regulations ever issued by any executive or
independent agency in the history of the United States. The
rule transforms the Internet by imposing common-carrier
obligations on Internet service providers and thereby
prohibiting Internet service providers from exercising
editorial control over the content they transmit to consumers.
The rule will affect every Internet service provider, every
Internet content provider, and every Internet consumer. The
economic and political significance of the rule is vast.

The net neutrality rule is unlawful and must be vacated,
however, for two alternative and independent reasons.

First, Congress did not clearly authorize the FCC to issue
the net neutrality rule. Congress has debated net neutrality for
many years, but Congress has never enacted net neutrality
legislation or clearly authorized the FCC to impose common-
carrier obligations on Internet service providers. The lack of
clear congressional authorization matters. In a series of
important cases over the last 25 years, the Supreme Court has
required clear congressional authorization for major agency
rules of this kind. The Court, speaking through Justice Scalia,
recently summarized the major rules doctrine in this way:
“We expect Congress to speak clearly if it wishes to assign to
an agency decisions of vast ‘economic and political
significance.’” Utility Air Regulatory Group v. EPA, 134 S.
Ct. 2427, 2444, slip op. at 19 (2014) (quoting FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)).
The major rules doctrine helps preserve the separation of
powers and operates as a vital check on expansive and
aggressive assertions of executive authority.
 2
Here, because Congress never passed net neutrality
legislation, the FCC relied on the 1934 Communications Act,
as amended in 1996, as its source of authority for the net
neutrality rule. But that Act does not supply clear
congressional authorization for the FCC to impose common-
carrier regulation on Internet service providers. Therefore,
under the Supreme Court’s precedents applying the major
rules doctrine, the net neutrality rule is unlawful.

Second and in the alternative, the net neutrality rule
violates the First Amendment to the U.S. Constitution. Under
the Supreme Court’s landmark decisions in Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), and
Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180
(1997), the First Amendment bars the Government from
restricting the editorial discretion of Internet service
providers, absent a showing that an Internet service provider
possesses market power in a relevant geographic market.
Here, however, the FCC has not even tried to make a market
power showing. Therefore, under the Supreme Court’s
precedents applying the First Amendment, the net neutrality
rule violates the First Amendment.

In short, although the briefs and commentary about the
net neutrality issue are voluminous, the legal analysis is
straightforward: If the Supreme Court’s major rules doctrine
means what it says, then the net neutrality rule is unlawful
because Congress has not clearly authorized the FCC to issue
this major rule. And if the Supreme Court’s Turner
Broadcasting decisions mean what they say, then the net
neutrality rule is unlawful because the rule impermissibly
infringes on the Internet service providers’ editorial
discretion. To state the obvious, the Supreme Court could
always refine or reconsider the major rules doctrine or its
decisions in the Turner Broadcasting cases. But as a lower
 3
court, we do not possess that power. Our job is to apply
Supreme Court precedent as it stands.

For those two alternative and independent reasons, the
FCC’s net neutrality regulation is unlawful and must be
vacated. I respectfully disagree with the panel majority’s
contrary decision and, given the exceptional importance of the
issue, respectfully dissent from the denial of rehearing en
banc.1

I

The FCC’s net neutrality rule is a major rule, but
Congress has not clearly authorized the FCC to issue the rule.
For that reason alone, the rule is unlawful.

A

The Framers of the Constitution viewed the separation of
powers as the great safeguard of liberty in the new National
Government. To protect liberty, the Constitution divides
power among the three branches of the National Government.
The Constitution vests Congress with the legislative power.
U.S. CONST. art. I, § 1. The Constitution vests the President
with the executive power, including the responsibility to “take

1
I also agree with much of Judge Williams’ panel dissent and
with much of Part III.A and Part III.B of Judge Brown’s dissent
from denial of rehearing en banc.
The concurrence in the denial of rehearing en banc suggests
that the FCC may withdraw the net neutrality rule, mitigating any
need for en banc review now. Unless and until the FCC does so,
however, the panel opinion will remain the law of the Circuit. If
the panel were to withdraw its opinion or if the opinion gets vacated
as moot, then the need for en banc review would go away as well.
But not until then, in my judgment.
 4
Care that the Laws be faithfully executed.” Id. art. II, § 1, cl.
1; id. § 3. The Constitution vests the Judiciary with the
judicial power, including the power in appropriate cases to
determine whether the Executive has acted consistently with
the Constitution and statutes. See id. art. III, §§ 1, 2; Marbury
v. Madison, 5 U.S. 137 (1803).

Under the Constitution’s separation of powers, Congress
makes the laws, and the Executive implements and enforces
the laws. The Executive Branch does not possess a general,
free-standing authority to issue binding legal rules. The
Executive may issue rules only pursuant to and consistent
with a grant of authority from Congress (or a grant of
authority directly from the Constitution). See Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).

When the Judiciary exercises its Article III authority to
determine whether an agency’s rule is consistent with a
governing statute, two competing canons of statutory
interpretation come into play.

First, for ordinary agency rules, the Supreme Court
applies what is known as Chevron deference to authoritative
agency interpretations of statutes. If the statute is clear, the
agency must follow the statute. But if the statute is
ambiguous, the agency has discretion to adopt its own
preferred interpretation, so long as that interpretation is at
least reasonable. See Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-45
(1984). The theory of Chevron is that a statutory ambiguity
or gap reflects Congress’s implicit delegation of authority for
the agency to make policy and issue rules within the
reasonable range of the statutory ambiguity or gap.
 5
Second, in a narrow class of cases involving major
agency rules of great economic and political significance, the
Supreme Court has articulated a countervailing canon that
constrains the Executive and helps to maintain the
Constitution’s separation of powers. For an agency to issue a
major rule, Congress must clearly authorize the agency to do
so. If a statute only ambiguously supplies authority for the
major rule, the rule is unlawful. This major rules doctrine
(usually called the major questions doctrine) is grounded in
two overlapping and reinforcing presumptions: (i) a
separation of powers-based presumption against the
delegation of major lawmaking authority from Congress to
the Executive Branch, see Industrial Union Department, AFL-
CIO v. American Petroleum Institute, 448 U.S. 607, 645-46
(1980) (opinion of Stevens, J.), and (ii) a presumption that
Congress intends to make major policy decisions itself, not
leave those decisions to agencies.

In short, while the Chevron doctrine allows an agency to
rely on statutory ambiguity to issue ordinary rules, the major
rules doctrine prevents an agency from relying on statutory
ambiguity to issue major rules.

Justice Breyer appears to have been the first to describe a
dichotomy between ordinary and major rules and to articulate
the major rules doctrine as a distinct principle of statutory
interpretation. In an article written more than 30 years ago,
he explained the principle this way: When determining “the
extent to which Congress intended that courts should defer to
the agency’s view of the proper interpretation,” courts should
take into account the legislative reality that Congress may
grant the Executive Branch the authority to resolve various
“interstitial matters,” but Congress itself is “more likely to
have focused upon, and answered, major questions.” Stephen
Breyer, Judicial Review of Questions of Law and Policy, 38
 6
Admin. L. Rev. 363, 370 (1986). Citing Justice Breyer’s
1986 article, the Supreme Court later explained that, in
“extraordinary cases,” Congress could not have “intended to
delegate a decision of such economic and political
significance to an agency in so cryptic a fashion.” FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 159, 160
(2000).

In keeping with the principle articulated by Justice
Breyer, the Supreme Court has repeatedly rejected agency
attempts to take major regulatory action without clear
congressional authorization. Consider the following
examples:

 MCI Telecommunications Corp. v. American
Telephone & Telegraph Co., 512 U.S. 218 (1994).
The Communications Act of 1934 gave the FCC
authority to “modify” rate-filing requirements. The
FCC issued a rule that completely exempted certain
telephone companies from rate-filing requirements.
The Court struck down the rule, holding that the
FCC’s authority to modify statutory requirements did
not permit the agency to eliminate those requirements.
It would have been a major step for the FCC to
eliminate those requirements. Yet there was no clear
statutory authority for the FCC to do so. The Court
explained that it was “highly unlikely that Congress
would leave the determination of whether an industry
will be entirely, or even substantially, rate-regulated to
agency discretion.” Id. at 231.
 FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120 (2000). The Food, Drug, and Cosmetic Act gave
the FDA broad and general authority to regulate
“drugs” and “devices.” The FDA attempted to use this
general authority to regulate the tobacco industry,
 7
including cigarettes. Regulating cigarettes would have
been a major economic and political action. Yet there
was no clear statutory authorization for the FDA to
regulate the tobacco industry generally, or cigarettes
specifically. The Court thus invalidated the rule,
stating that it was “confident that Congress could not
have intended to delegate a decision of such economic
and political significance to an agency in so cryptic a
fashion.” Id. at 160.
 Gonzales v. Oregon, 546 U.S. 243 (2006). The
Controlled Substances Act gave the Attorney General
authority to de-register physicians, thus preventing
them from writing prescriptions for certain drugs, if
the Attorney General concluded that de-registration
was in the “public interest.” The Attorney General
issued an interpretive rule declaring that physicians
could not prescribe controlled substances for assisted
suicides. It would have been a major step for the
Attorney General to proscribe physician-assisted
suicide in this way. Yet there was no clear statutory
authority for the Attorney General to do so. The Court
therefore rejected the rule, stating that it “would be
anomalous for Congress to have so painstakingly
described the Attorney General’s limited authority to
deregister a single physician or schedule a single drug,
but to have given him, just by implication, authority to
declare an entire class of activity outside the course of
professional practice.” Id. at 262 (internal quotation
marks omitted). “The idea that Congress gave the
Attorney General such broad and unusual authority
through an implicit delegation in the CSA’s
registration provision is not sustainable.” Id. at 267.
 Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427
(2014). Various parts of the Clean Air Act gave the
Environmental Protection Agency authority to
 8
regulate “any air pollutant.” It was not clear whether
greenhouse gases were air pollutants for all Clean Air
Act programs. The EPA nonetheless promulgated a
rule subjecting millions of previously unregulated
emitters of greenhouse gases to burdensome
permitting regulations under the Clean Air Act’s
Prevention of Significant Deterioration and Title V
permitting programs. It would have been a major step
for EPA to regulate the greenhouse gas emissions of
so many large and small facilities. But there was no
clear statutory authorization for the EPA to do so. As
a result, the Supreme Court vacated the relevant part
of the rule, stating: “When an agency claims to
discover in a long-extant statute an unheralded power
to regulate ‘a significant portion of the American
economy,’ we typically greet its announcement with a
measure of skepticism. We expect Congress to speak
clearly if it wishes to assign to an agency decisions of
vast ‘economic and political significance.’” Id. at
2444, slip op. at 19 (quoting Brown & Williamson,
529 U.S. at 159, 160) (citation omitted).2

2
For completeness, two other cases warrant mention. First, in
Massachusetts v. EPA, 549 U.S. 497 (2007), the Court concluded
that the Clean Air Act’s provision for the regulation of new motor
vehicles clearly authorized EPA to regulate the greenhouse gas
emissions of those vehicles, once EPA made a finding that
greenhouse gases may endanger the public health. See id. at 528-
29. So even though such a rule would presumably be a major rule,
the statute clearly authorized it, according to the Court. In UARG,
by contrast, the Court concluded that the Clean Air Act’s
Prevention of Significant Deterioration and Title V permitting
programs did not clearly authorize EPA to regulate emitters of
greenhouse gases under those programs.
Second, in King v. Burwell, 135 S. Ct. 2480 (2015), the Court
applied a form of the major rules doctrine and stated that Chevron
 9

The lesson from those cases is apparent. If an agency
wants to exercise expansive regulatory authority over some
major social or economic activity – regulating cigarettes,
banning physician-assisted suicide, eliminating
telecommunications rate-filing requirements, or regulating
greenhouse gas emitters, for example – an ambiguous grant of
statutory authority is not enough. Congress must clearly
authorize an agency to take such a major regulatory action.3

Consistent with the Supreme Court case law, leading
scholars on statutory interpretation have recognized the
significance of the major rules doctrine. Professor Eskridge
has explained the doctrine this way: The “Supreme Court has
carved out a potentially important exception to delegation, the

deference did not apply to the major question of whether the
Affordable Care Act authorized government subsidies to
individuals who obtained health insurance on exchanges established
by the Federal Government. Id. at 2488-89, slip op. at 8. That case
is somewhat different from the prototypical major rules cases
because the agency in that particular rule was not seeking to
regulate or de-regulate (as opposed to tax or subsidize) some major
private activity. Rather, the case concerned the scope of
government subsidies under the health care statute. The case
therefore seems to stand for the distinct proposition that Chevron
deference may not apply when an agency interprets a major
government benefits or appropriations provision of a statute.
3
This Court has also employed the major rules doctrine. See,
e.g., District of Columbia v. Department of Labor, 819 F.3d 444,
446 (D.C. Cir. 2016) (rejecting the Department of Labor’s
interpretation of the Davis-Bacon Act, which regulates public
works, to apply to construction of privately funded, owned, and
operated buildings); Loving v. IRS, 742 F.3d 1013, 1021 (D.C. Cir.
2014) (rejecting the Internal Revenue Service’s interpretation of a
tax statute to authorize new regulation of hundreds of thousands of
tax-return preparers).
 10
major questions canon. Even if Congress has delegated an
agency general rulemaking or adjudicatory power, judges
presume that Congress does not delegate its authority to settle
or amend major social and economic policy decisions.”
WILLIAM N. ESKRIDGE JR., INTERPRETING LAW: A PRIMER ON
HOW TO READ STATUTES AND THE CONSTITUTION 288 (2016).
The “key reason” for the doctrine, Professor Eskridge has
explained, “is the strong presumption of continuity for major
policies unless and until Congress has deliberated about and
enacted a change in those major policies . . . . Because a
major policy change should be made by the most
democratically accountable process—Article I, Section 7
legislation—this kind of continuity is consistent with
democratic values.” Id. at 289.

In their landmark study of Congress’s statutory drafting
practices, Professors Gluck and Bressman likewise stated that
“the major questions doctrine is a departure from Chevron’s
simple presumption of delegation. In particular, that doctrine
supports a presumption of nondelegation in the face of
statutory ambiguity over major policy questions or questions
of major political or economic significance.” Abbe R. Gluck
& Lisa Schultz Bressman, Statutory Interpretation from the
Inside—An Empirical Study of Congressional Drafting,
Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901,
1003 (2013). Their empirical study concluded that the major
rules doctrine reflects congressional intent and accords with
the in-the-arena reality of how legislators and congressional
staff approach the legislative function. As one congressional
official put it to them: “Major policy questions, major
economic questions, major political questions, preemption
questions are all the same. Drafters don’t intend to leave
 11
them unresolved.” Id. at 1004 (internal quotation marks and
alterations omitted).4

In short, the major rules doctrine constitutes an important
principle of statutory interpretation in agency cases. As a
lower court, we must follow the major rules doctrine as it has
been articulated by the Supreme Court.

B

In order for the FCC to issue a major rule, Congress must
provide clear authorization. We therefore must address two
questions in this case: (1) Is the net neutrality rule a major
rule? (2) If so, has Congress clearly authorized the FCC to
issue the net neutrality rule?

1

The FCC’s net neutrality rule is a major rule for purposes
of the Supreme Court’s major rules doctrine. Indeed, I
believe that proposition is indisputable.

The Supreme Court has described major rules as those of
“vast ‘economic and political significance.’” UARG, 134 S.
Ct. at 2444, slip op. at 19 (quoting Brown & Williamson, 529

4
Some commentators do not believe that there should be a
major rules doctrine. See, e.g., Lisa Heinzerling, The Power
Canons, 58 Wm. & Mary L. Rev. (forthcoming 2017); Kevin O.
Leske, Major Questions About the “Major Questions” Doctrine, 5
Mich. J. Envtl. & Admin. L. 479 (2016). But as a lower court, we
are constrained by precedent. The Supreme Court has articulated
and applied the major rules doctrine in a series of high-profile and
important cases. As a lower court, we cannot dismiss the Court’s
repeated invocations of the doctrine as casual or meaningless
asides. We cannot airbrush the cases out of the picture.
 12
U.S at 160). The Court has not articulated a bright-line test
that distinguishes major rules from ordinary rules. As a
general matter, however, the Court’s cases indicate that a
number of factors are relevant, including: the amount of
money involved for regulated and affected parties, the overall
impact on the economy, the number of people affected, and
the degree of congressional and public attention to the issue.
See UARG, 134 S. Ct. at 2443-44, slip op. at 17-19 (regulation
would impose massive compliance costs on millions of
previously unregulated emitters); Gonzales v. Oregon, 546
U.S. at 267 (physician-assisted suicide is an important issue
subject to “earnest and profound debate across the country”);
Brown & Williamson, 529 U.S. at 126-27, 133, 143-61
(FDA’s asserted authority would give it expansive power over
tobacco industry, which was previously unregulated under the
relevant statute); MCI, 512 U.S. at 230, 231 (rate-filing
requirements are “utterly central” and of “enormous
importance” to the statutory scheme). The Court’s concern
about an agency’s issuance of a seemingly major rule is
heightened, moreover, when an agency relies on a long-extant
statute to support the agency’s bold new assertion of
regulatory authority. See UARG, 134 S. Ct. at 2444, slip op.
at 19.

To be sure, determining whether a rule constitutes a
major rule sometimes has a bit of a “know it when you see it”
quality. So there inevitably will be close cases and debates at
the margins about whether a rule qualifies as major. But
under any conceivable test for what makes a rule major, the
net neutrality rule qualifies as a major rule.

The net neutrality rule is a major rule because it imposes
common-carrier regulation on Internet service providers. (A
common carrier generally must carry all traffic on an equal
basis without unreasonable discrimination as to price and
 13
carriage.) In so doing, the net neutrality rule fundamentally
transforms the Internet by prohibiting Internet service
providers from choosing the content they want to transmit to
consumers and from fully responding to their customers’
preferences. The rule therefore wrests control of the Internet
from the people and private Internet service providers and
gives control to the Government. The rule will affect every
Internet service provider, every Internet content provider, and
every Internet consumer. The financial impact of the rule – in
terms of the portion of the economy affected, as well as the
impact on investment in infrastructure, content, and
business – is staggering. Not surprisingly, consumer interest
groups and industry groups alike have mobilized
extraordinary resources to influence the outcome of the policy
discussions.

Moreover, Congress and the public have paid close
attention to the issue. Congress has been studying and
debating net neutrality regulation for years. It has considered
(but never passed) a variety of bills relating to net neutrality
and the imposition of common-carrier regulations on Internet
service providers. See, e.g., H.R. 5252, 109th Cong. (2006);
H.R. 5273, 109th Cong. (2006); H.R. 5417, 109th Cong.
(2006); S. 2360, 109th Cong. (2006); S. 2686, 109th Cong.
(2006); S. 2917, 109th Cong. (2006); S. 215, 110th Cong.
(2007); H.R. 5353, 110th Cong. (2008); H.R. 5994, 110th
Cong. (2008); H.R. 3458, 111th Cong. (2009); S. 74, 112th
Cong. (2011); S. 3703, 112th Cong. (2012); H.R. 2666, 114th
Cong. (2016). The public has also focused intensely on the
net neutrality debate. For example, when the issue was before
the FCC, the agency received some 4 million comments on
the proposed rule, apparently the largest number (by far) of
comments that the FCC has ever received about a proposed
rule. Indeed, even President Obama publicly weighed in on
the net neutrality issue, an unusual presidential action when
 14
an independent agency is considering a proposed rule. See
Statement on Internet Neutrality, 2014 DAILY COMP. PRES.
DOC. 841 (Nov. 10, 2014). The President’s intervention only
underscores the enormous significance of the net neutrality
issue.

In addition, as in other cases where the Supreme Court
has held that the major rules doctrine applied, the FCC is
relying here on a long-extant statute – namely, the
Communications Act of 1934, as amended in 1996. In
UARG, the Supreme Court wrote the following: “When an
agency claims to discover in a long-extant statute an
unheralded power to regulate ‘a significant portion of the
American economy,’ we typically greet its announcement
with a measure of skepticism. We expect Congress to speak
clearly if it wishes to assign to an agency decisions of vast
‘economic and political significance.’” 134 S. Ct. at 2444,
slip op. at 19 (quoting Brown & Williamson, 529 U.S. at 159,
160) (citation omitted). The Court in UARG might as well
have been speaking about the net neutrality rule. That UARG
language is directly on point here.

The net neutrality rule is a major rule under any plausible
conception of the major rules doctrine. As Judge Brown
rightly states, “any other conclusion would fail the straight-
face test.” Brown Dissent at 18.

2

Because the net neutrality rule is a major rule, the next
question is whether Congress clearly authorized the FCC to
issue the net neutrality rule and impose common-carrier
regulations on Internet service providers. The answer is no.
 15
Congress enacted the Communications Act in 1934 and
amended it in 1996. The statute sets up different regulatory
schemes for “telecommunications services” and “information
services.” To simplify for present purposes, the statute
authorizes heavy common-carrier regulation of
telecommunications services but light regulation of
information services. (Recall that a common carrier generally
must carry all traffic on an equal basis without unreasonable
discrimination as to price and carriage.) The statute was
originally designed to regulate telephone service providers as
common carriers.

By the time of the 1996 amendments to the Act, the
Internet had come into being. The 1996 amendments
reflected that development. Among other things, the
amendments articulated a general philosophy of limited
regulation of the Internet. “It is the policy of the United
States,” Congress stated, “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.” 47 U.S.C. § 230(b).

In keeping with the express statutory philosophy of light
regulation of the Internet, the FCC until 2015 regulated
Internet service provided over cable systems as an
information service, the lighter regulatory model. The 1934
Act (as amended in 1996) permits such light regulation of the
Internet. What that Act does not clearly do is treat Internet
service as a telecommunications service and thereby authorize
the FCC to regulate Internet service providers as common
carriers. At most, the Act is ambiguous about whether
Internet service is an information service or a
telecommunications service.
 16
Since 1996, Congress has not passed a statute clearly
classifying Internet service as a telecommunications service
or otherwise giving the FCC authority to impose common-
carrier regulations on Internet service providers. That
inaction has not been the result of inattention. On the
contrary, as noted above, Congress has been studying and
debating the net neutrality issue for years. And Congress has
considered a variety of bills relating to net neutrality and the
imposition of common-carrier regulations on Internet service
providers. But none of those bills has passed.

In 2015, notwithstanding the lack of clear congressional
authorization, the FCC decided to unilaterally plow forward
and issue its net neutrality rule. The rule classified Internet
service as a telecommunications service and imposed onerous
common-carrier regulations on Internet service providers. By
doing so, the FCC’s 2015 net neutrality rule upended the
agency’s traditional light-touch regulatory approach to the
Internet.

The problem for the FCC is that Congress has not clearly
authorized the FCC to classify Internet service as a
telecommunications service and impose common-carrier
obligations on Internet service providers. Indeed, not even
the FCC claims that Internet service is clearly a
telecommunications service under the statute. On the
contrary, the FCC concedes that “the Communications Act
did not clearly resolve the question of how broadband should
be classified.” FCC Opposition Br. 9. Therefore, by the
FCC’s own admission, Congress has not clearly authorized
the FCC to subject Internet service providers to the range of
burdensome common-carrier regulations associated with
telecommunications services.
 17
Under the major rules doctrine, that is the end of the
game for the net neutrality rule: Congress must clearly
authorize an agency to issue a major rule. And Congress has
not done so here, as even the FCC admits.

To avoid that conclusion, the FCC relies almost
exclusively on the Supreme Court’s 2005 decision in National
Cable & Telecommunications Association v. Brand X Internet
Services, 545 U.S. 967 (2005). In Brand X, the FCC had
classified Internet service over cable lines as an information
service and, consistent with that classification, imposed only
light regulation on Internet service providers. Various
petitioners sued to try to force the FCC to classify Internet
service as a telecommunications service and to impose
common-carrier regulation on Internet service providers. The
Supreme Court stated that the statute was ambiguous about
whether Internet service was an information service or a
telecommunications service. The Court applied Chevron
deference and upheld the FCC’s decision to classify Internet
service as an information service and to subject Internet
service providers to only light regulation.

Here, the FCC argues that, under Brand X, the agency has
authority to classify Internet service as a telecommunications
service because the statute is ambiguous. The FCC is badly
mistaken. Brand X’s finding of statutory ambiguity cannot be
the source of the FCC’s authority to classify Internet service
as a telecommunications service. Rather, under the major
rules doctrine, Brand X’s finding of statutory ambiguity is a
bar to the FCC’s authority to classify Internet service as a
telecommunications service.

Importantly, the Brand X Court did not have to – and did
not – consider whether classifying Internet service as a
telecommunications service and imposing common-carrier
 18
regulation on the Internet would be consistent with the major
rules doctrine. In other words, Brand X nowhere addressed
the question presented in this case: namely, whether Congress
has clearly authorized common-carrier regulation of Internet
service providers.5 Therefore, we must consider that question
in the first instance. And that is where Brand X’s finding of
statutory ambiguity actually torpedoes the FCC’s current
argument. Brand X’s finding of ambiguity by definition
means that Congress has not clearly authorized the FCC to
issue the net neutrality rule. And that means that the net
neutrality rule is unlawful under the major rules doctrine.6

5
One might wonder whether it was a major step for the FCC
to impose even light-touch “information services” regulation on
Internet service providers. The answer is no; indeed, apparently no
Internet service provider raised such a claim in Brand X. The
FCC’s light-touch regulation did not entail common-carrier
regulation and was not some major new regulatory step of vast
economic and political significance. The rule at issue in Brand X
therefore was an ordinary rule, not a major rule. As a result, the
Chevron doctrine applied, not the major rules doctrine.
6
The concurrence in the denial of rehearing en banc articulates
what it describes as “two distinct species of ambiguity.”
Concurrence at 9. The concurrence distinguishes (i) whether the
statute itself clearly classifies Internet service providers as
telecommunications providers and (ii) whether the statute clearly
authorizes the agency to classify Internet service providers as
telecommunications providers. I agree that those are two distinct
questions. But the answer to both questions is no. I see no
statutory language that, in the concurrence’s words, “clearly
classifies ISPs as telecommunications providers” or “clearly
authorizes the agency to classify ISPs as telecommunications
providers.” Id. Nor did Brand X, as I read it, say either of those
two things.
 19
* * *

The FCC adopted the net neutrality rule because the
agency believed the rule to be wise policy and because
Congress would not pass it. The net neutrality rule might be
wise policy. But even assuming that the net neutrality rule is
wise policy, congressional inaction does not license the
Executive Branch to take matters into its own hands. Far
from it. See Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006)
(Breyer, J., concurring) (gravely serious policy problem is
nonetheless not a “blank check” for the Executive Branch to
address the problem); Youngstown Sheet & Tube Co., 343
U.S. 579 (Jackson, J., concurring). Under our system of
separation of powers, an agency may act only pursuant to
statutory authority and may not exceed that authority. For
major rules, moreover, the agency must have clear
congressional authorization. The net neutrality rule is a major
rule. But Congress has not clearly authorized the FCC to
issue that rule. Under the Supreme Court’s major rules
doctrine, the net neutrality rule is therefore unlawful and must
be vacated.7

II

The net neutrality rule is unlawful for an alternative and
independent reason. The rule violates the First Amendment,
as that Amendment has been interpreted by the Supreme

7
If the major rules doctrine meant only that Chevron did not
apply, but did not go so far as to require clear congressional
authorization for a major rule, we would then simply determine the
better reading of this statute without a thumb on the scale in either
direction. It is not necessary to delve deeply into that hypothetical
inquiry here, but the better reading of this statute is that Internet
service is an information service, as Judge Brown has explained.
See Brown Dissent at 3-5.
 20
Court. Absent a demonstration that an Internet service
provider possesses market power in a relevant geographic
market – a demonstration that the FCC concedes it did not
make here – imposing common-carrier regulations on Internet
service providers violates the First Amendment.

A

The threshold question is whether the First Amendment
applies to Internet service providers when they exercise
editorial discretion and choose what content to carry and not
to carry. The answer is yes.

Article I of the Constitution affords Congress substantial
power to regulate interstate commerce. But the First
Amendment demands that the Government employ a more
“laissez-faire regime” for the press and other editors and
speakers in the communications marketplace. Columbia
Broadcasting System, Inc. v. Democratic National Committee,
412 U.S. 94, 161 (1973) (Douglas, J., concurring in
judgment).

Ratified in 1791, the First Amendment provides that
“Congress shall make no law . . . abridging the freedom of
speech, or of the press.” U.S. CONST. amend. I. The First
Amendment protects an independent media and an
independent communications marketplace against takeover
efforts by the Legislative and Executive Branches. The First
Amendment operates as a vital guarantee of democratic self-
government.

At the time of the Founding, the First Amendment
protected (among other things) the editorial discretion of the
many publishers, newspapers, and pamphleteers who
produced and supplied written communications to the citizens
 21
of the United States. For example, the Federal Government
could not tell newspapers that they had to publish letters or
commentary from all citizens, or from citizens who had
different viewpoints. The Federal Government could not
compel book publishers to accept and promote all books on
equal terms or to publish books from authors with different
perspectives. As Benjamin Franklin once remarked, his
newspaper “was not a stagecoach, with seats for everyone.”
Columbia Broadcasting System, 412 U.S. at 152 (Douglas, J.,
concurring in judgment) (quoting FRANK LUTHER MOTT,
AMERICAN JOURNALISM: A HISTORY, 1690-1960, at 55 (3d ed.
1962)).

The Supreme Court’s landmark decisions in Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994), and
Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180
(1997) (Turner Broadcasting II), established that those
foundational First Amendment principles apply to editors and
speakers in the modern communications marketplace in much
the same way that the principles apply to the newspapers,
magazines, pamphleteers, publishers, bookstores, and
newsstands traditionally protected by the First Amendment.

The Turner Broadcasting cases addressed “must-carry”
regulation of cable operators. The relevant statute required
cable operators to carry certain local and public television
stations. Proponents of must-carry regulation argued that the
First Amendment posed little barrier to must-carry regulation
because cable operators merely operated the pipes that
transmitted third-party content and did not exercise the kind
of editorial discretion that was traditionally protected by the
First Amendment.

The Supreme Court, speaking though Justice Kennedy in
both Turner Broadcasting cases, rejected that threshold
 22
argument out of hand. The Court held that “cable operators
engage in and transmit speech, and they are entitled to the
protection of the speech and press provisions of the First
Amendment.” Turner Broadcasting, 512 U.S. at 636. As the
Court recognized, cable operators deliver television content to
subscribers. Although the cable operators may not always
generate that content themselves, they decide what content to
transmit. That decision, the Supreme Court stated, constitutes
an act of editorial discretion receiving First Amendment
protection. In the Court’s words: “Through ‘original
programming or by exercising editorial discretion over which
stations or programs to include in its repertoire,’ cable
programmers and operators ‘seek to communicate messages
on a wide variety of topics and in a wide variety of formats.’”
Id. (alteration omitted) (quoting Los Angeles v. Preferred
Communications, Inc., 476 U.S. 488, 494 (1986)); see also
Arkansas Educational Television Commission v. Forbes, 523
U.S. 666, 674 (1998) (“Although programming decisions
often involve the compilation of the speech of third parties,
the decisions nonetheless constitute communicative acts.”).

The Court’s ultimate conclusion on that threshold First
Amendment point was not obvious beforehand. One could
have imagined the Court saying that cable operators merely
operate the transmission pipes and are not traditional editors.
One could have imagined the Court comparing cable
operators to electricity providers, trucking companies, and
railroads – all entities subject to traditional economic
regulation. But that was not the analytical path charted by the
Turner Broadcasting Court. Instead, the Court analogized the
cable operators to the publishers, pamphleteers, and bookstore
owners traditionally protected by the First Amendment. As
Turner Broadcasting concluded, the First Amendment’s basic
principles “do not vary when a new and different medium for
communication appears” – although there of course can be
 23
some differences in how the ultimate First Amendment
analysis plays out depending on the nature of (and
competition in) a particular communications market. Brown
v. Entertainment Merchants Association, 564 U.S. 786, 790
(2011) (internal quotation mark omitted).

Here, of course, we deal with Internet service providers,
not cable television operators. But Internet service providers
and cable operators perform the same kinds of functions in
their respective networks. Just like cable operators, Internet
service providers deliver content to consumers. Internet
service providers may not necessarily generate much content
of their own, but they may decide what content they will
transmit, just as cable operators decide what content they will
transmit. Deciding whether and how to transmit ESPN and
deciding whether and how to transmit ESPN.com are not
meaningfully different for First Amendment purposes.

Indeed, some of the same entities that provide cable
television service – colloquially known as cable companies –
provide Internet access over the very same wires. If those
entities receive First Amendment protection when they
transmit television stations and networks, they likewise
receive First Amendment protection when they transmit
Internet content. It would be entirely illogical to conclude
otherwise. In short, Internet service providers enjoy First
Amendment protection of their rights to speak and exercise
editorial discretion, just as cable operators do.

The FCC advances two primary arguments in its effort to
distinguish Turner Broadcasting and demonstrate that there is
no real First Amendment issue here.

First, the FCC argues (and the panel agreed) that Turner
Broadcasting does not apply in this case because many
 24
Internet service providers do not actually exercise editorial
discretion to favor some content over others. Many Internet
service providers simply allow access to all Internet content
providers on an equal basis. For that reason, the FCC
contends that it may prevent Internet service providers from
exercising their editorial discretion or speech rights to favor
some content or disfavor other content.

I find that argument mystifying. The FCC’s “use it or
lose it” theory of First Amendment rights finds no support in
the Constitution or precedent. The FCC’s theory is circular,
in essence saying: “They have no First Amendment rights
because they have not been regularly exercising any First
Amendment rights and therefore they have no First
Amendment rights.” It may be true that some, many, or even
most Internet service providers have chosen not to exercise
much editorial discretion, and instead have decided to allow
most or all Internet content to be transmitted on an equal
basis. But that “carry all comers” decision itself is an exercise
of editorial discretion. Moreover, the fact that the Internet
service providers have not been aggressively exercising their
editorial discretion does not mean that they have no right to
exercise their editorial discretion. That would be akin to
arguing that people lose the right to vote if they sit out a few
elections. Or citizens lose the right to protest if they have not
protested before. Or a bookstore loses the right to display its
favored books if it has not done so recently. That is not how
constitutional rights work. The FCC’s “use it or lose it”
theory is wholly foreign to the First Amendment.

Relatedly, the FCC claims that, under the net neutrality
rule, an Internet service provider supposedly may opt out of
the rule by choosing to carry only some Internet content. But
even under the FCC’s description of the rule, an Internet
service provider that chooses to carry most or all content still
 25
is not allowed to favor some content over other content when
it comes to price, speed, and availability. That half-baked
regulatory approach is just as foreign to the First Amendment.
If a bookstore (or Amazon) decides to carry all books, may
the Government then force the bookstore (or Amazon) to
feature and promote all books in the same manner? If a
newsstand carries all newspapers, may the Government force
the newsstand to display all newspapers in the same way?
May the Government force the newsstand to price them all
equally? Of course not. There is no such theory of the First
Amendment. Here, either Internet service providers have a
right to exercise editorial discretion, or they do not. If they
have a right to exercise editorial discretion, the choice of
whether and how to exercise that editorial discretion is up to
them, not up to the Government.

Think about what the FCC is saying: Under the rule, you
supposedly can exercise your editorial discretion to refuse to
carry some Internet content. But if you choose to carry most
or all Internet content, you cannot exercise your editorial
discretion to favor some content over other content. What
First Amendment case or principle supports that theory?
Crickets.8

8
The concurrence in the denial of rehearing en banc seems to
suggest that the net neutrality rule is voluntary. According to the
concurrence, Internet service providers may comply with the net
neutrality rule if they want to comply, but can choose not to comply
if they do not want to comply. To the concurring judges, net
neutrality merely means “if you say it, do it.” Concurrence at 21.
If that description were really true, the net neutrality rule would be
a simple prohibition against false advertising. But that does not
appear to be an accurate description of the rule. See Protecting and
Promoting the Open Internet, 30 FCC Rcd. 5601, 5682 ¶ 187
(2015) (imposing various net neutrality requirements on an Internet
service provider that “provides the capability” to access “all or
 26

Second, the FCC suggests that Turner Broadcasting may
not apply in the same way in the Internet context because the
Internet service providers do not face the same kind of
scarcity-of-space problem that a cable operator, for example,
might face. In other words, the FCC argues that cable
operators have fixed “space” and can carry only a limited
number of channels; therefore, forced-carriage requirements
would necessarily restrict First Amendment rights by
depriving cable operators of their ability to carry some desired
content. By contrast, for the Internet, forced-carriage
requirements do not necessarily deprive Internet service
providers of their ability to carry any of their desired content.
There is space for everyone.

That argument, too, makes little sense as a matter of basic
First Amendment law. First Amendment protection does not
go away simply because you have a large communications
platform. A large bookstore has the same right to exercise
editorial discretion as a small bookstore. Suppose Amazon
has capacity to sell every book currently in publication and
therefore does not face the scarcity of space that a bookstore
does. Could the Government therefore force Amazon to sell,
feature, and promote every book on an equal basis, and
prohibit Amazon from promoting or recommending particular

substantially all” content on the Internet) (italics omitted). It would
be strange indeed if all of the controversy were over a “rule” that is
in fact entirely voluntary and merely proscribes false advertising.
In any event, I tend to doubt that Internet service providers can now
simply say that they will choose not to comply with any aspects of
the net neutrality rule and be done with it. But if that is what the
concurrence means to say, that would of course avoid any First
Amendment problem: To state the obvious, a supposed “rule” that
actually imposes no mandates or prohibitions and need not be
followed would not raise a First Amendment issue.
 27
books or authors? Of course not. And there is no reason for a
different result here. Put simply, the Internet’s technological
architecture may mean that Internet service providers can
provide unlimited content; it does not mean that they must.

Keep in mind, moreover, why that is so. The First
Amendment affords editors and speakers the right not to
speak and not to carry or favor unwanted speech of others, at
least absent sufficient governmental justification for
infringing on that right. See, e.g., Riley v. National
Federation of the Blind of North Carolina, Inc., 487 U.S. 781,
796-97 (1988); Pacific Gas & Electric Co. v. Public Utilities
Commission of California, 475 U.S. 1, 16 (1986) (plurality
opinion); Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241, 256-58 (1974). That foundational principle packs at
least as much punch when you have room on your platform to
carry a lot of speakers as it does when you have room on your
platform to carry only a few speakers.

In short, the Supreme Court’s Turner Broadcasting
decisions mean that Internet service providers possess a First
Amendment right to exercise their editorial discretion over
what content to carry and how to carry it. To be sure, the
Turner Broadcasting decisions have sparked great
controversy because they have constrained the Government’s
ability to regulate the communications marketplace. See, e.g.,
Susan Crawford, First Amendment Common Sense, 127 Harv.
L. Rev. 2343, 2345 (2014); Stuart Minor Benjamin,
Transmitting, Editing, and Communicating: Determining
What “The Freedom of Speech” Encompasses, 60 Duke L.J.
1673, 1682 (2011); Moran Yemini, Mandated Network
Neutrality and the First Amendment: Lessons from Turner
and a New Approach, 13 Va. J.L. & Tech. 1, 38 (2008).
Those critics advance very forceful arguments. Perhaps the
Supreme Court will someday overrule or narrow those cases.
 28
But unless and until that happens, lower courts must follow
the Supreme Court. The Turner Broadcasting cases were
landmark decisions that were intended to (and have) marked
the First Amendment boundaries for communications
gatekeepers in the 21st century. And under those decisions,
the First Amendment does not allow the FCC to treat Internet
service providers as mere pipeline operators rather than as
First Amendment-protected editors and speakers.9

B

In light of the Turner Broadcasting decisions, Internet
service providers have First Amendment rights. Of course,
under the Supreme Court’s case law, First Amendment rights
are not always absolute: The Government may sometimes
infringe on First Amendment rights if the Government shows
a sufficient justification for doing so.

Turner Broadcasting establishes that, to impose content-
neutral regulations on Internet service providers, the
Government must satisfy the intermediate scrutiny test. To

9
The concurrence in the denial of rehearing en banc notes that
the cable trade association NCTA has not raised a First Amendment
argument. But other Internet service providers have raised the First
Amendment argument in this and other forums. And NCTA itself
has previously argued that net neutrality obligations violate the
First Amendment. See, e.g., National Cable &
Telecommunications Association, Comment Letter on Preserving
the Open Internet 49-64 (Jan. 14, 2010). Moreover, the
concurrence’s point reflects a misunderstanding of who NCTA now
is. NCTA represents content providers as well as cable operators.
And content providers obviously have little interest in advocating
for the First Amendment rights of Internet service providers and
video programming distributors. That presumably explains
NCTA’s current silence on the First Amendment issue.
 29
satisfy the intermediate scrutiny test, the Government’s
regulation must promote a “substantial governmental
interest,” be “unrelated to the suppression of free expression,”
and impose a restriction on First Amendment rights that “is no
greater than is essential to the furtherance of that interest.”
Turner Broadcasting, 512 U.S. at 662 (internal quotation
mark omitted) (quoting United States v. O’Brien, 391 U.S.
367, 377 (1968)).

Does the FCC’s net neutrality rule satisfy intermediate
scrutiny? The answer is no.

In the abstract, the intermediate scrutiny test is somewhat
question-begging (as is the strict scrutiny test, for that matter).
The test almost necessarily calls for common-law-like
decisions articulating and recognizing exceptions and
qualifications to constitutional rights. In this particular
context, however, the Supreme Court has already applied the
intermediate scrutiny test in a way that provides relatively
clear guidance for lower courts.

Applying intermediate scrutiny, the Turner Broadcasting
Court held that content-neutral restrictions on a
communications service provider’s speech and editorial rights
may be justified if the service provider possesses “bottleneck
monopoly power” in the relevant geographic market. Id. at
661; see also id. at 666-67; Turner Broadcasting II, 520 U.S.
180 (controlling opinion of Kennedy, J.).10 But absent a
demonstration of a company’s market power in the relevant
geographic market, the Government may not interfere with a
10
In Turner Broadcasting II, Justice Kennedy’s opinion for
four justices was controlling because it represented the “position
taken by those Members who concurred in the judgment[] on the
narrowest grounds.” Marks v. United States, 430 U.S. 188, 193
(1977).
 30
cable operator’s or an Internet service provider’s First
Amendment right to exercise editorial discretion over the
content it carries. See Comcast Cable Communications, LLC
v. FCC, 717 F.3d 982, 993 (D.C. Cir. 2013) (Kavanaugh, J.,
concurring); Cablevision Systems Corp. v. FCC, 597 F.3d
1306, 1323 (D.C. Cir. 2010) (Kavanaugh, J., dissenting).

At the time of the Turner Broadcasting decisions, cable
operators exercised monopoly power in the local cable
television markets. That monopoly power afforded cable
operators the ability to unfairly disadvantage certain broadcast
stations and networks. In the absence of a competitive
market, a broadcast station had few places to turn when a
cable operator declined to carry it. Without Government
intervention, cable operators could have disfavored certain
broadcasters and indeed forced some broadcasters out of the
market altogether. That would diminish the content available
to consumers. The Supreme Court concluded that the cable
operators’ market-distorting monopoly power justified
Government intervention. Because of the cable operators’
monopoly power, the Court ultimately upheld the must-carry
statute. See Turner Broadcasting II, 520 U.S. at 196-208
(controlling opinion of Kennedy, J.).

The problem for the FCC in this case is that here, unlike
in Turner Broadcasting, the FCC has not shown that Internet
service providers possess market power in a relevant
geographic market. Indeed, the FCC freely acknowledges
that it has not even tried to demonstrate market power. The
FCC’s Order states that “these rules do not address, and are
not designed to deal with, the acquisition or maintenance of
market power or its abuse, real or potential.” Protecting and
 31
Promoting the Open Internet, 30 FCC Rcd. 5601, 5606 ¶ 11
n.12 (2015).11

Rather than addressing any problem of market power, the
net neutrality rule instead compels private Internet service
providers to supply an open platform for all would-be Internet
speakers, and thereby diversify and increase the number of
voices available on the Internet. The rule forcibly reduces the
relative voices of some Internet service and content providers
and enhances the relative voices of other Internet content
providers.

But except in rare circumstances, the First Amendment
does not allow the Government to regulate the content choices
of private editors just so that the Government may enhance
certain voices and alter the content available to the citizenry.
As the Supreme Court stated in Buckley v. Valeo, in one of the
most important sentences in First Amendment history: The
“concept that government may restrict the speech of some
elements of our society in order to enhance the relative voice
of others is wholly foreign to the First Amendment.” 424
U.S. 1, 48-49 (1976). The Court in Turner Broadcasting re-
affirmed that Buckley principle, as have many other Supreme
Court cases before and since. See, e.g., Arizona Free
Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S.
721, 741 (2011); Citizens United v. FEC, 558 U.S. 310, 350
(2010); Meyer v. Grant, 486 U.S. 414, 426 n.7 (1988); First
National Bank of Boston v. Bellotti, 435 U.S. 765, 790-92
(1978).

11
Because the FCC has not tried to show market power, I need
not determine exactly what a market power showing would entail in
this context with respect to market share and the like. In Turner
Broadcasting, the Court relied on the fact that the cable operators
possessed “bottleneck monopoly power.” 512 U.S. at 661; see also
id. at 666-67.
 32

Consistent with that bedrock Buckley principle, Turner
Broadcasting did not allow the Government to satisfy
intermediate scrutiny merely by asserting an interest in
diversifying or increasing the number of speakers available on
cable systems. After all, if that interest sufficed to uphold
must-carry regulation without a showing of market power, the
Turner Broadcasting litigation would have unfolded much
differently. The Supreme Court would have had little or no
need to determine whether the cable operators had market
power. But the Supreme Court emphasized and relied on the
Government’s market power showing when the Court upheld
the must-carry requirements. See Turner Broadcasting II, 520
U.S. at 196-208 (controlling opinion of Kennedy, J.). Indeed,
in Turner Broadcasting II, Justice Breyer specifically
disagreed with the Court’s emphasis on market power as the
justification for the must-carry law. Justice Breyer would
have held that the Government’s interest in promoting a
multiplicity of voices sufficed to satisfy intermediate scrutiny.
See id. at 226 (Breyer, J., concurring in part). But the Court
did not go that route.

To be sure, the interests in diversifying and increasing
content are important governmental interests in the abstract,
according to the Supreme Court. See Turner Broadcasting,
512 U.S. at 663. But absent some market dysfunction,
Government regulation of the content carriage decisions of
communications service providers is not essential to
furthering those interests, as is required to satisfy intermediate
scrutiny. See id. at 662 (Content-neutral regulation will be
sustained “if it furthers an important or substantial
governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that
 33
interest.”) (emphasis added) (internal quotation marks
omitted). If the relevant communications marketplace is a
competitive market, the theory is that the marketplace itself
will both generate and provide room for a diversity and
multiplicity of voices, without a need or justification for
Government interference with private editorial choices. That
is the lesson of the critical sentence in Buckley; it is the lesson
of Turner Broadcasting; and indeed, it is the lesson of the
entire history of First Amendment and competition law.

Consider the implications if the law were otherwise. If
market power need not be shown, the Government could
regulate the editorial decisions of Facebook and Google, of
MSNBC and Fox, of NYTimes.com and WSJ.com, of
YouTube and Twitter. Can the Government really force
Facebook and Google and all of those other entities to operate
as common carriers? Can the Government really impose
forced-carriage or equal-access obligations on YouTube and
Twitter? If the Government’s theory in this case were
accepted, then the answers would be yes. After all, if the
Government could force Internet service providers to carry
unwanted content even absent a showing of market power,
then it could do the same to all those other entities as well.
There is no principled distinction between this case and those
hypothetical cases.

In short, under Turner Broadcasting, the net neutrality
rule flunks intermediate scrutiny because the FCC has not
shown that Internet service providers possess market power in
a relevant geographic market.12 It is debatable, moreover,
12
At a minimum, Turner Broadcasting requires the
Government to show market power in order to satisfy intermediate
scrutiny. But Turner Broadcasting seems to require even more
from the Government. The Government apparently must also show
that the market power would actually be used to disadvantage
 34
whether the FCC could make such a market power showing in
the current competitive marketplace. One leading scholar has
explained that the presence of “vibrant competition” in the
Internet service market makes it “difficult to see how any
court could invoke the bottleneck rationale articulated in
Turner I to justify greater intrusions into Internet providers’
editorial discretion than would be permissible with respect to
newspapers.” Christopher S. Yoo, Free Speech and the Myth
of the Internet as an Unintermediated Experience, 78 Geo.
Wash. L. Rev. 697, 748, 749 (2010). In any event, the FCC
did not try to make such a market power showing here.13

The net neutrality rule reflects a fear that the real threat to
free speech today comes from private entities such as Internet
service providers, not from the Government. For that reason,
some say, the Government must be able to freely intervene in
the market to counteract the influence of Internet service
providers.

certain content providers, thereby diminishing the diversity and
amount of content available. See Turner Broadcasting, 512 U.S. at
664-68; Turner Broadcasting II, 520 U.S. at 196-213 (controlling
opinion of Kennedy, J.).
13
Some defenders of net neutrality raise a slippery slope
argument: If the First Amendment really bars the net neutrality
rule, then the First Amendment would also bar Government
regulation of telephone companies that connect person-to-person
calls. That scary-sounding hypothetical is unpersuasive, however,
because the telephone company is not engaged in carrying or
making mass communications in those circumstances: “Mass-
media speech implicates a broader range of free speech values that
include interests of audiences and intermediaries, as well as
speakers.” Yoo, Free Speech, 78 Geo. Wash. L. Rev. at 701. The
transmission of person-to-person communications does not
implicate the same editorial discretion issues. So that slippery
slope argument is not a persuasive reason to fear, or refrain from
recognizing, Internet service providers’ First Amendment rights.
 35

That argument necessitates two responses. To begin
with, the First Amendment is a restraint on the Government
and protects private editors and speakers from Government
regulation. The First Amendment protects the independent
media and independent communications marketplace against
Government control and overreaching.14

More to the point, the Turner Broadcasting cases already
grant the Government ample authority to counteract the
exercise of market power by private Internet service
providers. If the Internet service providers have market
power, then the Government may impose open-access or
similar carriage obligations. In other words, if private
Internet service providers possess market power, then Turner
Broadcasting already gives the Government tools to confront
that problem.

14
Over the years, many highly respected academic
commentators have questioned that vision of the First Amendment.
They have advanced extremely thoughtful arguments. See, e.g.,
CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE
SPEECH (1993); Robert Post & Amanda Shanor, Adam Smith’s
First Amendment, 128 Harv. L. Rev. F. 165 (2015). But the
traditional laissez-faire model still reflects the basic tenor of the
Supreme Court’s First Amendment jurisprudence. Indeed, that
approach to the First Amendment seems to have grown only
stronger in recent decades. See, e.g., Brown, 564 U.S. 786; Sorrell
v. IMS Health Inc., 564 U.S. 552 (2011); United States v. Stevens,
559 U.S. 460 (2010); Citizens United, 558 U.S. 310; Thompson v.
Western States Medical Center, 535 U.S. 357 (2002); Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525 (2001); Greater New Orleans
Broadcasting Association, Inc. v. United States, 527 U.S. 173
(1999); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996);
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). As a lower
court, we of course must take the Supreme Court’s jurisprudence as
we find it.
 36

Therefore, it is important to be crystal clear about one
key point: The Supreme Court’s First Amendment precedents
allow the Government to impose net neutrality obligations on
Internet service providers that possess market power. In that
respect, Turner Broadcasting reached a middle ground. The
Supreme Court did not go as far as some wanted in terms of
protecting cable operators’ editorial discretion even when the
cable operators have market power. Some argued that a cable
operator should receive the same First Amendment
protections as a newspaper, whose editorial discretion is
protected even if the newspaper has market power. See
Tornillo, 418 U.S. 241. But the Court in Turner Broadcasting
did not adopt that absolutist principle for cable operators.

Therefore, absent a showing of market power, the
Government must keep its hands off the editorial decisions of
Internet service providers. Absent a showing of market
power, the Government may not tell Internet service providers
how to exercise their editorial discretion about what content
to carry or favor any more than the Government can tell
Amazon or Politics & Prose what books to promote; or tell
The Washington Post or the Drudge Report what columns to
carry; or tell ESPN or the NFL Network what games to show;
or tell How Appealing or Bench Memos what articles to
feature; or tell Twitter or YouTube what videos to post; or tell
Facebook or Google what content to favor.

On this record, the net neutrality rule violates the First
Amendment. For that reason alone, the rule is unlawful, even
apart from the rule’s invalidity under the major rules doctrine
discussed in Part I of this opinion.
 37
* * *

In the hierarchical court system established by Article III,
a lower court must carefully follow Supreme Court precedent.
If we faithfully apply current Supreme Court doctrine here,
then this becomes a fairly straightforward case. First,
Supreme Court precedent requires clear congressional
authorization for an agency’s major rule. See Utility Air
Regulatory Group v. EPA, 134 S. Ct. 2427, 2444, slip op. at
19 (2014). The net neutrality rule is a major rule. But
Congress has not clearly authorized the FCC to issue the net
neutrality rule. The rule is therefore unlawful. Second,
Supreme Court precedent establishes that Internet service
providers have a First Amendment right to exercise editorial
discretion over whether and how to carry Internet content.
See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622
(1994). The Government may interfere with that right only if
it shows that an Internet service provider has market power in
a relevant geographic market. But the FCC has not shown (or
even attempted to show) market power here. On this record,
therefore, the rule violates the First Amendment.

For those two alternative and independent reasons, the
net neutrality rule is unlawful and must be vacated. I
respectfully disagree with the panel’s contrary decision and,
given the exceptional importance of the issue, respectfully
dissent from the denial of rehearing en banc.