(Continued from previous page) (continued….) See, e.g., National Arts and Cultural Organizations Comments at 3 (“[B]roadband Internet service has inspired tremendous innovation, which has in turn enabled individual artists and arts organizations to reach new audiences, cultivate patrons and supporters, collaborate with peers, stimulate local economies and enrich cultural and civic discourse.”); Common Cause Comments at 3-8 (arguing that the open Internet promotes free speech and civic engagement); Letter from Lauren M. Wilson, Policy Counsel, Free Press to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 (filed Jan. 13, 2015) (Free Press et al. Jan. 13, 2015 Ex Parte Letter) (describing the important role the open Internet plays in the work of public interest, social justice, and activist groups); Higher Education and Libraries Comments at ii (“Libraries and institutions of higher education depend upon an open Internet to carry out their missions and to serve their communities.”); Engine Advocacy Comments at 3-13 (arguing that an open Internet has been essential to promoting entrepreneurship, economic growth, and innovation). Unless otherwise noted, all citations to comments in this item refer to comments filed in GN Docket No. 14-28. “Remand PN Comments” is used to denote comments that were filed in response to the Feb. 19, 2014 Public Notice released by the Wireline Competition Bureau. See New Docket Established to Address Open Internet Remand, GN Docket No. 14-28, Public Notice, 29 FCC Rcd 1746 (Wireline Comp. Bur. 2014). “Comments” or “Reply” are used to denote comments filed in response to the Notice of Proposed Rulemaking released by the Commission on May 15, 2014. See Protecting and Promoting the Open Internet, GN Docket No. 14-28, Notice of Proposed Rulemaking, 29 FCC Rcd 5561 (2014) (2014 Open Internet NPRM). Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014). Id. at 659. Id. at 645. See infra Section III.B. Verizon Oral Arg. Tr. at 31 (“I’m authorized to state by my client [Verizon] today that, but for these rules, we would be exploring those commercial arrangements, but this order prohibits those, and in fact would shrink the types of services that will be available on the Internet.”). But see Letter from William H. Johnson, Vice President & Associate General Counsel, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1 (filed Feb. 11, 2015) (Verizon Feb. 11 Ex Parte Letter) (arguing that “[t]he ‘commercial arrangements’ referenced by counsel had nothing to do with ‘restrict[ing] access’ to content”). Also, during the oral argument before the D.C. Circuit, Verizon stated that “in paragraph 64 of the Order the Agency also sets forth the no charging of edge providers rule as a corollary to the no blocking rule, and that’s a large part of what is causing us our harm here.” In response, Judge Silberman stated, “if you were allowed to charge, which are you assuming you’re allowed to charge because of the anti-common carrier point of view, if somebody refused to pay then just like in the dispute between C[B]S and Warner, Time Warner . . . you could refuse to carry.” Verizon’s counsel responded: “[r]ight.” Verizon Oral Arg. Tr. at 28. Fierce Wireless, 1H2014: LTE Share 33% of all Mobile Connections in the U.S. and Canada vs. 4% Worldwide, (Sept. 2014), http://www.fiercewireless.com/press-releases/1h2014-lte-share-33-all-mobile-connections-us-and-canada-vs-4-worldwide (reporting remarkable growth with 16 million LTE connections at the end of June 2012; 63 million LTE connections as of June 2013; 127 million LTE connections as of June 2014). See, e.g., Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 13-135, Seventeenth Report, 29 FCC Rcd 15311 (Wireless Tel. Bur. 2014) (17th Mobile Wireless Report); Robert F. Roche and Liz Dale, Annual Wireless Survey Results: A Comprehensive Report from CTIA Analyzing the U.S. Wireless Industry (June 2014); Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as Amended by the Broadband Data Improvement Act, GN Docket No. 14-126, 2015 Broadband Progress Report and Notice of Inquiry, FCC 15-10, at para. 120 (rel. Feb. 4, 2015) (2015 Broadband Progress Report) (“We recognize that many households subscribe to both fixed and mobile services because they use fixed and mobile services in fundamentally different ways and, as such, view fixed and mobile services as distinct product offerings.”). See supra para. REF _Ref412551735 \r \h 3; see also Netflix Inc., 2010 Annual Report (Form 10-K) (Feb. 18, 2011), http://files.shareholder.com/downloads/NFLX/3969047782x0x460274/17454c5b-3088-48c7-957a-b5a83a14cf1b/132054ACL.PDF; Letter from Reed Hastings, CEO and David Wells, CFO, Netflix to Shareholders of Netflix (Jan. 20, 2015), http://ir.netflix.com/results.cfm (follow “Q4 14 Letter to shareholders” hyperlink) (for 2014, Netflix reported 39.1 million domestic streaming subscribers compared to 5.8 million domestic DVD subscribers); Emily Steel, Cord-Cutters Rejoice: CBS Joins Web Stream, N.Y. Times (Oct. 16, 2014),  http://www.nytimes.com/2014/10/17/business/cbs-to-offer-web-subscription-service.html; Brian Stelter, ESPN on the web for $20 a month is coming soon, CNN Money (Jan. 5, 2015), http://money.cnn.com/2015/01/05/media/dish-virtual-cable/; Alex Ben Block, Discovery Founder Launching SVOD Service Described as Netflix "For Curious People,” Hollywood Reporter (Jan. 14, 2014), http://www.hollywoodreporter.com/news/discovery-founder-launching-svod-service-763885; Jenelle Riley, Amazon, ‘Transparent’ Make History at Golden Globes, Variety (Jan. 11, 2015), http://variety.com/2015/tv/news/amazon-transparent-make-history-at-golden-globes-1201400485/. See Public Knowledge, Benton Foundation, and Access Sonoma Broadband (Public Knowledge) Comments at 52-53 (discussing exemption of Xfinity online video application on Xbox from Comcast’s data cap without similar exemption for unaffiliated over-the-top video services). 2014 Open Internet NPRM, 29 FCC Rcd at 5562, para. 2. Consistent with the Verizon court’s analysis, this Order need not conclude that any specific market power exists in the hands of one or more broadband providers in order to create and enforce these rules. Thus, 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. Moreover, it is worth noting that the Commission acts in a manner that is both complementary to the work of the antitrust agencies and supported by their application of antitrust laws. See generally 47 U.S.C. § 152(b) (“[N]othing in this Act . . . shall be construed to modify, impair, or supersede the applicability of any of the antitrust laws.”). Nothing in this Order in any way precludes the Antitrust Division of the Department of Justice or the Commission itself from fulfilling their respective responsibilities under Section 7 of the Clayton Act (15 U.S.C. §18), or the Commission’s public interest standard as it assesses prospective transactions. 5 U.S.C. § 553(c). Attorney General’s Committee, Final Report of the Attorney General Committee at 102 (1941), http://www.law.fsu.edu/library/admin/pdfdownload/apa1941.pdf. Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983) (quoting BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 641 (1st Cir. 1979)). Use of the Carterfone Device in Message Toll Telephone Service; Thomas F. Carter and Carter Electronics Corp., Dallas, Tex. (Complainants), v. American Telephone and Telegraph Co., Associated Bell System Companies, Southwestern Bell Telephone Co., and General Telephone Co. of the Southwest (Defendants), Docket Nos. 16942, 17073, Decision, 13 FCC 2d 420 (1968) (Carterfone), recon. denied, 14 FCC 2d 571 (1968). To be clear, the protections of the no-blocking and no-throttling rules apply to particular classes of applications, content and services as well as particular applications, content, and services. Unlike the no-blocking and no-throttling rules, there is no “reasonable network management” exception to the paid prioritization rule because paid prioritization is inherently a business practice rather than a network management practice. Verizon, 740 F.3d at 645-46. Mozilla Comments at 20. See, e.g., Free Press Comments at 50 (“In packet-switching, if there is no congestion, there is no meaning to priority.”). AT&T Reply at 3 (proposing “a distinction between paid prioritization that is not directed by end users, and prioritization arrangements that are user-driven” and that “the Commission should not categorically foreclose such consumer-driven choices”). All Commission rules are subject to waiver requests and that principle applies to the open Internet rules. See 47 C.F.R. § 1.925; Blanca Telephone Co. v. FCC, 743 F.3d 860, 864 (D.C. Cir. 2014) (“When evaluating an agency’s interpretation and application of a general, discretionary waiver standard ‘[o]ur review . . . is extremely limited.’”) (quoting BDPCS, Inc. v. FCC, 351 F.3d 1177, 1181 (D.C. Cir. 2003)). As Public Knowledge has recognized, “the Commission must not only permit such Petitions and waiver applications, but genuinely consider their merits [however,] the Commission has broad discretion with regard to what standard it will apply.” Letter from Gene Kimmelman, President, Public Knowledge to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2 (filed Nov. 7, 2014) (Public Knowledge Nov. 7, 2014 Ex Parte Letter). The Order requires any applicant to demonstrate that the proposed paid prioritization practice “would provide some significant public interest benefit and would not harm the open nature of the Internet.” It is very important to understand that a party seeking a waiver is banned from an inappropriate practice. Its only recourse is to seek a waiver, and that waiver request would not be decided until the Commission, after public comment and its own investigation, reaches a decision. Preserving the Open Internet, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC Rcd 17905, 17911, para. 14 (2010) (2010 Open Internet Order), aff’d in part, vacated and remanded in part sub nom. Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014). Benjamin Franklin, Poor Richard’s Almanac (1757). 47 U.S.C. § 230(a)(3). 47 C.F.R. § 8.3. We note that our use of the term “broadband” in this Order includes but is not limited to services meeting the threshold for “advanced telecommunications capability,” as defined in Section 706 of the Telecommunications Act of 1996, as amended. 47 U.S.C. § 1302(b). Section 706 defines that term as “high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.” 47 U.S.C. § 1302(d)(1). The 2015 Broadband Progress Report specifically notes that “advanced telecommunications capability,” while sometimes referred to as “broadband,” differs from the Commission’s use of the term “broadband” in other contexts. 2015 Broadband Progress Report at n.1 (rel. Feb. 4, 2015). See Letter from Sarah J. Morris, Senior Policy Counsel, Open Technology Institute, New America Foundation to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 (filed Oct. 30, 2014), Attach. MLab, ISP Interconnection and Its Impact on Consumer Internet Performance, A Measurement Lab Consortium Technical Report (Oct. 28, 2014) (MLab ISP Interconnection Report). See Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Services, GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411 (1994) (CMRS Second Report & Order) (forbearing from various Title II requirements for CMRS). See CTIA Wireless Industry Indices: Annual Wireless Survey Results: A Comprehensive Report from CTIA Analyzing the U.S. Wireless Industry Year-End 2013 Results, 2014 at 25, 76, 97. See Verizon Communications, Inc., Financial Reporting Quarterly Reports 2008-2014 (Form 10-K) http://www.verizon.com/about/investors/quarterly-reports/ (last visited Feb. 23, 2015); see also Service Rules for the 698-746, 747-762 and 777-792 MHz Bands; Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible Telephones; Biennial Regulatory Review-Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services; Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules; Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010; Declaratory Ruling on Reporting Requirement under Commission's Part 1 Anti-Collusion Rule, WT Docket Nos. 07-166, 06-169, 06-150, 03-264, 96-86, PS Docket No. 06-229, CC Docket No. 94-102, Second Report and Order, 22 FCC Rcd 15289, 15364, paras. 203-204 (2007) (700 MHz Second Report and Order); 47 C.F.R. § 27.16. Comments of AT&T, Inc., WC Docket No. 05-25, at 2-3 (filed Apr. 16, 2013). See US Telecom Research Brief, Latest Data Show Broadband Investment Surged in 2013 at 2, Chart 2 (Sept. 8, 2014) (wireline broadband capital expenditures peaked at $79 billion in 2000), http://www.ustelecom.org/sites/default/files/documents/090814%20Latest%20Data%20Show%20Broadband%20Investment%20Surged%20in%202013.pdf. See, e.g., Philip Cusick et al., Net Neutrality: Prepared for Title II but We Take Less Negative View, J.P. Morgan, (Nov. 11, 2014) (“We wouldn’t change any of the fundamental assumptions on cable companies under our coverage under Title II, and shares are likely to rebound over time.”); Paul Gallant, Title 2 Appears Likely Outcome at FCC, but Headline Risk May Exceed Real Risk, Guggenheim Securities, LLC, (Dec. 8, 2014) (“We would not view a Title II decision by the FCC as changing the existing Washington framework for cable broadband service. The marketplace reality under Title II would be far less problematic for cable/telcos than most believe.”); Paul de Sa et al., Bernstein Research, (Nov. 17, 2014) (“We think net neutrality is largely irrelevant for fundamental value drivers. But headline noise in the coming months will likely result in fears about price regulation, increasing volatility and perhaps temporarily depressing cable & telco equity values.”). Letter from Stephen Bye, Chief Technology Officer, Sprint, to Chairman Wheeler, FCC, GN Docket No. 14-28, at 1 (filed Jan. 16, 2015) (Sprint Jan. 16. 2015 Ex Parte Letter); see also Transcript of Verizon Communications Presents at UBS 42nd Annual Global Media and Communications Conference Call, Seeking Alpha (Dec. 9. 2014), available at http://seekingalpha.com/article/2743375-verizon-communications-vz-presents-at-ubs-42nd-annual-global-media-and-communications-conference-transcript?all=true&find=John%2BHodulik (quoting Verizon CFO Fran Shammo as saying “I mean, to be real clear, I mean this does not influence the way we invest. I mean we’re going to continue to invest in our networks and our platforms, both in Wireless and Wireline FiOS and where we need to. So nothing will influence that. I mean if you think about it, look, I mean we were born out of a highly regulated company, so we know how this operates.”); Brian Fung, Verizon: Actually Strong Net Neutrality Rules Won’t Affect our Network Investment, Washington Post (Dec. 10, 2014), http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/10/verizon-actually-strong-net-neutrality-rules-wont-affect-our-network-investment/; Brian Fung, Comcast, Charter and Time Warner Cable All Say Obama’s Net Neutrality Plan Shouldn’t Worry Investors, Washington Post (Dec. 16, 2014), http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/16/comcast-charter-and-time-warner-cable-all-tell-investors-strict-net-neutrality-wouldnt-change-much/; Letter from Angie Kronenberg, COMPTEL to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Dec. 11, 2014) (COMPTEL Dec. 11, 2014 Ex Parte Letter). See John Eggerton, AWS-3 Powers Past $44 Billion, Broadcasting & Cable (Dec. 16, 2014), http://www.broadcastingcable.com/news/washington/aws-3-powers-past-44-billion/136438. Verizon, 740 F.3d at 650. Id. at 653. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980-81 (2005) (Brand X). Id. at 986, 1001. See infra para. REF _Ref412531599 \r \h 314 & n. NOTEREF _Ref410904622 \h 810. Id. at 1005 (Scalia, J., dissenting).  Id. at 1007-09. 47 U.S.C. § 332(d)(2). Section 332 of the Act defines “private mobile service” as “any mobile service . . . that is not a commercial mobile service or the functional equivalent of a commercial mobile service, as specified by regulation by the Commission.” 47 U.S.C. § 332(d)(3). Specifically, we do not forbear from the enforcement authorities set forth in sections 206, 207, 208, 209, 216, and 217. To preserve existing CALEA obligations that already apply to broadband Internet access service, we also decline to forbear from section 229. 47 U.S.C. § 229. See also 47 C.F.R. §§ 1.20000 et seq. 47 U.S.C. § 222(a); Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer Proprietary Network Information and Other Customer Information, CC Docket No. 96-115, WC Docket No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6959, para. 64 (2007) (2007 CPNI Order). See TerraCom, Inc. and YourTel America, Inc. Apparent Liability for Forfeiture, File No.: EB-TCD-13-00009175, Notice of Apparent Liability, 29 FCC Rcd 13325, 13335-40, paras. 31-41 (2014). Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14930, para. 148 (2005) (Wireline Broadband Classification Order); see also id. at 14931, para. 149 & n.447 (noting that “long before Congress enacted section 222 of the Act, the Commission had recognized the need for privacy requirements associated with the provision of enhanced services and had adopted CPNI-related requirements in conjunction with other Computer Inquiry obligations”). See, e.g., Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as Amended by the Broadband Data Improvement Act, GN Docket No. 11-121, Report, 27 FCC Rcd 10342, 10410, para. 154 (2012) (2012 Eighth Broadband Progress Report). 2007 CPNI Order, 22 FCC Rcd at 6957, para. 59; see also FCC, Connecting America: The National Broadband Plan at 55 (National Broadband Plan) (explaining that without privacy protections, new innovation and investment in broadband applications and content may be held back, and these applications and content, in turn, are likely the most effective means to advance many of Congress’s goals for broadband). As explained in greater detail below, this Order does, however, forbear in part from the application of TRS contribution obligations that otherwise would apply to broadband Internet access service. Section 251(a)(2) precludes the installation of “network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to section 255 or 256.” See infra Section REF _Ref412402683 \r \h V. See, e.g., Letter from Kathryn Zachem, Senior Vice President, Comcast, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 at 25 n.107 (filed Dec. 24, 2014) (Comcast Dec. 24, 2014 Ex Parte Letter); Letter from Matthew Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 21 (Dec. 23, 2014) (NCTA Dec. 23, 2014 Ex Parte Letter); see also, e.g., Letter from Marvin Ammori and Julie Samuels, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1 (filed Nov. 12, 2014) (“Title II forbearance should be implemented in such a way so as to encourage continued deployment and investment in networks by for example preserving pole attachment rights.”). 47 U.S.C. § 224(f)(1). The first sentence of section 254(d) authorizes the Commission to impose universal service contributions requirements on telecommunications carriers—and, indeed, goes even further to require “[e]very telecommunications carrier that provides interstate telecommunications services” to contribute. 47 U.S.C. § 254(d). Carterfone, 13 FCC 2d 420. Carterfone, 13 FCC 2d at 421, 427. These “foreign attachment” provisions effectively allowed the company to extend its monopoly over phone service to the telephone equipment market as well. After AT&T prohibited use of the Carterfone, the product’s manufacturer brought an antitrust action against AT&T and certain other telephone companies. The district court, applying the doctrine of primary jurisdiction, asked the Commission to determine the reasonableness and validity of the tariff and telephone companies’ practices. The manufacturer also filed a formal complaint against certain of the telephone companies, and the Commission consolidated the two proceedings. Id. at 421-22. Carterfone, 13 FCC 2d at 423-424 (“[O]ur conclusion here is that a customer desiring to use an interconnecting device . . . should be able to do so, so long as the interconnection does not adversely affect the telephone company's operations or the telephone system’s utility for others.”). As the Commission implicitly recognized, allowing AT&T to preclude adoption of even non-harmful third-party devices forestalled the development of a competitive telephone technology market, harming innovators and consumers alike. See id. at 424 (“No one entity need provide all interconnection equipment for our telephone system any more than a single source is needed to supply the parts for a space probe.”); Amendment of Section 64.702 of the Commission’s Rules and Regulations (Second Computer Inquiry), Docket No. 20828, Final Decision, 77 FCC 2d 384, 439 para. 141 (1980) (Computer II). Michael T. Hoeker, Comment, From Carterfone to the iPhone: Consumer Choice in the Wireless Telecommunications Marketplace, 17 CommLaw Conspectus 187, 190-91 (2008); Kevin Werbach, The Federal Computer Commission, 84 N.C. L. Rev. 1, 20-21 (2005) (The Federal Computer Commission). Regulatory & Policy Problems Presented by the Interdependence of Computer & Commc'n Servs. & Facilities, Docket No. 16979, Final Decision and Order, 28 FCC 2d 267 (1971) (Computer I); Computer II, 77 FCC 2d 384; Amendment of Sections 64.702 of the Commission’s Rules and Regulations (Third Computer Inquiry); and Policy and Rules Concerning Rates for Competitive Common Carrier Services and Facilities Authorizations Thereof Communications Protocols under Section 64.702 of the Commission’s Rules and Regulations, CC Docket No. 85-229, Report and Order, 104 FCC 2d 958 (1986) (Computer III). The Federal Computer Commission at 22-26; James B. Speta, A Common Carrier Approach to Internet Interconnection, 54 Fed. Comm. L.J. 225, 264-67 (2002). Robert Cannon, The Legacy of the Federal Communications Commission’s Computer Inquiries, 55 Fed. Comm. L.J. 167, 169, 204-205 (2003) (arguing that the rules established in the Computer Inquiries “have been wildly successful” and were “a necessary precondition for the success of the Internet”). Michael K. Powell, Chairman, Federal Communications Commission, Preserving Internet Freedom: Guiding Principles for the Industry 3, Remarks at the Silicon Flatirons Symposium (Feb. 8, 2004), https://apps.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf. Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review-Review of Computer III and ONA Safeguards and Requirements; 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, GN Docket No. 00-185, CC Docket Nos. 02-33, 01-33, 98-10, 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986, 14987-88, para. 4 (2005) (Internet Policy Statement). Subject to “reasonable network management,” the principles were intended to ensure consumers had the right to (1) “access the lawful Internet content of their choice;” (2) “run applications and use services of their choice;” (3) “connect their choice of legal devices that do not harm the network;” and (4) enjoy “competition among network providers, application and service providers, and content providers.” Internet Policy Statement, 20 FCC Rcd at 14987-88, para. 4. SBC Communications, Inc. and AT&T Corp. Applications for Approval of Transfer of Control, WC Docket No. 05-65, Memorandum Opinion and Order, 20 FCC Rcd 18290, 18392, para. 211 & Appx. F (2005) (SBC/AT&T Merger Order); Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control, WC Docket No. 05-75, Memorandum Opinion and Order, 20 FCC Rcd 18433, 18537, para. 221 (2005) (Verizon/MCI Merger Order); Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. for Consent to Assign Licenses and Transfer Control of Licenses, MB Docket No. 10-56, Memorandum Opinion and Order, 26 FCC Rcd 4239, 4275, para. 94 & n.213 (2011) (Comcast/NBCU Merger Order);700 MHz Second Report and Order, 22 FCC Rcd at 15364, paras. 203-204; 47 C.F.R. § 27.16. SBC/AT&T Merger Order, 20 FCC Rcd at 18392, para. 211 & Appx. F; Verizon/MCI Merger Order, 20 FCC Rcd at 18537, para. 221; Comcast/NBCU Merger Order, 26 FCC Rcd at 4275, para. 94 & n.213; 700 MHz Second Report and Order, 22 FCC Rcd at 15364, paras. 203-204; 47 C.F.R. § 27.16. Additionally, the Commission used the Internet Policy Statement principles as a yardstick to evaluate other large-scale transactions, such as an Adelphia/Time Warner/Comcast licensing agreement, and the AT&T/BellSouth merger. Applications for Consent to the Assignment and/or Transfer of Control of Licenses, Adelphia Communications Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors, to Time Warner Cable Inc. (Subsidiaries), Assignees, Adelphia Communications Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors and Transferors, to Comcast Corporation (Subsidiaries), Assignees and Transferees, Comcast Corporation, Transferor, to Time Warner Inc., Transferee, Time Warner Inc., Transferor, to Comcast Corporation, Transferee, MB Docket No. 05-192, Memorandum Opinion and Order, 21 FCC Rcd 8203, 8299, para. 223 (2006); AT&T Inc. and BellSouth Corporation Application for Transfer of Control, WC Docket No. 06-74, Memorandum Opinion and Order, 22 FCC Rcd 5662, 5727-28, para. 119 (2007) (AT&T/BellSouth Merger Order). These actions resulted in a 2005 consent decree by DSL service provider Madison River requiring it to discontinue its practice of blocking Voice over Internet Protocol (VoIP) telephone calls, and a 2008 Order against Comcast for interfering with peer-to-peer file sharing, which the Commission found “contravened federal policy” by “significantly imped[ing] consumers’ ability to access the content and use the applications of their choice.” Madison River Communications, File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (Enforcement Bur. 2005) (Madison River Order); Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband Industry Practices; Petition of Free Press et al. for Declaratory Ruling that Degrading an Internet Application Violates the FCC's Internet Policy Statement and Does Not Meet an Exception for “Reasonable Network Management,” File No. EB-08-IH-1518, WC Docket No. 07-52, Memorandum Opinion and Order, 23 FCC Rcd 13028, 13054, 13057, paras. 44, 49 (2008) (Comcast Order). Framework for Broadband Internet Service, GN Docket No. 10-127, Notice of Inquiry, 25 FCC Rcd 7866, 7867, para. 2 (2010) (Broadband Framework NOI), citing Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010). The D.C. Circuit held that the Commission could not rely solely on ancillary authority in taking enforcement action against Comcast. Id. at 652. Further, the court held that another potential source of authority, section 706 of the Telecommunications Act of 1996, likewise could not support the Commission’s action because the Commission was bound in Comcast by a prior determination that section 706 did not constitute such a grant of authority. Id. at 658-59. Broadband Framework NOI, 25 FCC Rcd at 7867, para. 1. Id. at 7867, para. 2. Id. 2010 Open Internet Order, 25 FCC Rcd 17905. Id. at 17906, para. 1; 2014 Open Internet NPRM, 29 FCC Rcd at 5568, para. 21. 2010 Open Internet Order, 25 FCC Rcd at 17906, para. 1. Id. Id. at 17946, paras. 74-75. Id. at 17947, para. 76. See infra Section REF _Ref412402749 \r \h III.C.1.c. Id. Id. Id. Id. 47 C.F.R. § 8.5. Id. 2010 Open Internet Order, 25 FCC Rcd at 17928, para. 30, 17966, para. 114. Verizon, 740 F.3d 623. Id. at 635-42. Id. at 645. Id. at 656-59. Common carriage, which applies to certain entities like telephone service providers, imposes restrictions on the degree to which a service provider can enter into individualized agreements with similarly-situated customers. Id. at 651-52. Verizon, 740 F.3d at 655-58 (vacating the Commission’s rule prohibiting “unreasonable discrimination” by fixed broadband providers on the theory that it “so limited broadband providers’ control over edge providers’ transmissions that [it] constitute[d] common carriage per se” and finding that the no-blocking rules “would appear on their face” to impose common carrier obligations on fixed and mobile broadband providers); see also 2014 Open Internet NPRM, 29 FCC Rcd at 5600-01, para. 114. Verizon, 740 F.3d at 650; see also United Power Line Council’s Petition for Declaratory Ruling Regarding the Classification of Broadband over Power Line Internet Access Service as an Information Service, WC Docket No. 06-10, Memorandum Opinion and Order, 21 FCC Rcd 13281 (2006) (BPL-Enabled Broadband Order); Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Universal Service Obligations of Broadband Providers; Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review – Review of Computer III and ONA Safeguards and Requirements; Conditional Petition of the Verizon Telephone Companies for Forbearance Under 47 U.S.C. § 160(c) with Regard to Broadband Services Provided via Fiber to the Premises; Petition of the Verizon Telephone Companies for Declaratory Ruling or, Alternatively, for Interim Waiver with Regard to Broadband Services Provided via Fiber to the Premises; Consumer Protection in the Broadband Era, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14855, para. 1 (2005) (Wireline Broadband Classification Order); 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, GN Docket No. 00-785, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798, 4801, para. 4 (2002) (Cable Modem Declaratory Ruling), aff’d, Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). Verizon, 740 F.3d at 650; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901 (2007) (Wireless Broadband Classification Order). Verizon, 740 F.3d at 656. In making its determination, the Verizon court relied on a previous decision in which it upheld the Commission’s data roaming requirements against a common carrier challenge. Cellco P'ship v. FCC, 700 F.3d 534 (D.C. Cir. 2012). The Verizon court emphasized that, unlike the data roaming rules at issue in Cellco, which explicitly left room for individualized negotiations, the Open Internet Order did not attempt to “ensure that [the] reasonableness standard remains flexible.” Cellco, 700 F.3d at 548; Verizon, 740 F.3d at 657. See generally 2014 Open Internet NPRM, 29 FCC Rcd 5561. Id. at 5563, para. 2. Id. at 5563, para 4. The Commission proposed to “retain the definitions and scope of the 2010 rules,” adopting the text of the 2010 no-blocking rule under a revised rationale, and enhancing the transparency rule that remained in place after Verizon. Id. at 5564-65, para. 10. The 2014 Open Internet NPRM also proposed to add a separate layer of protection against anti-competitive conduct by service providers that would otherwise be permissible under the no-blocking rule. This new rule would require that service providers “adhere to an enforceable legal standard of commercially reasonable practices” in the provision of broadband Internet access service. Id. Dr. David A. Bray, FCC Chief Information Officer, Official FCC Blog, An Update on the Volume of Open Internet Comments Submitted to the FCC (Sept. 17, 2014), http://www.fcc.gov/blog/update-volume-open-internet-comments-submitted-fcc; Dr. David A. Bray, FCC Chief Information Officer, Official FCC Blog, An Additional Option for Filing Open Internet Comments (Sept. 11, 2014), http://www.fcc.gov/blog/additional-option-filing-open-internet-comments; Gigi B. Sohn, Special Counsel for External Affairs, Office of the Chairman, Official FCC Blog, FCC Makes Open Internet Comments More Accessible to Public (August 5, 2014), http://www.fcc.gov/blog/fcc-makes-open-internet-comments-more-accessible-public. Open Internet Roundtable, Policy Approaches to Ensure an Open Internet, Sept. 16, 2014 (recording available at http://www.fcc.gov/events/open-internet-roundtable-policy-approaches). Open Internet Roundtable, Mobile Broadband and the Open Internet, Sept. 16, 2014 (recording available at http://www.fcc.gov/events/open-internet-roundtable-mobile-broadband). Open Internet Roundtable, Effective Enforcement of Open Internet Requirements, Sept. 19, 2014 (recording available at http://www.fcc.gov/events/open-internet-roundtable-technological-aspects). Open Internet Roundtable, Technological Aspects of an Open Internet, Sept. 19, 2014 (recording available at http://www.fcc.gov/events/open-internet-roundtable-technological-aspects). Open Internet Roundtable, Economics of Broadband: Market Successes and Market Failures, Oct.2, 2014 (recording available at http://www.fcc.gov/events/open-internet-roundtable-economics). Open Internet Roundtable, Internet Openness and the Law, Oct. 7, 2014 (recording available at http://www.fcc.gov/events/open-internet-roundtable-law). Gigi B. Sohn, Special Counsel for External Affairs, Office of the Chairman, Official FCC Blog, FCC Releases Open Internet Reply Comments to the Public (Oct. 22, 2014, updated Dec. 23, 2014), http://www.fcc.gov/blog/fcc-releases-open-internet-reply-comments-public. In order to accommodate this unprecedented level of public involvement, both the comment and reply comment periods were extended via public notice. See Wireline Competition Bureau Will Treat as Timely Filed Any Comments Filed in Response to the Open Internet Notice of Proposed Rulemaking and the Framework for Broadband Internet Access Service Refreshing the Record Public Notice if Filed by July 18, 2014, GN Docket Nos. 10-127, 14-28, Public Notice, 29 FCC Rcd 8335 (Wireline Comp. Bur. 2014); Wireline Competition Bureau Extends Deadline for Filing Reply Comments in the Open Internet and Framework for Broadband Internet Service Proceedings, GN Docket Nos. 14-28, 10-127, Public Notice, 29 FCC Rcd 9714 (Wireline Comp. Bur. 2014). Knight Foundation, Decoding the Net Neutrality Debate at 14 (2014), http://www.knightfoundation.org/features/netneutrality/ (Knight Foundation, Decoding the Net Neutrality Debate); see also Bob Lannon & Andrew Pendleton, What Can We Learn From 800,000 Public Comments on the FCC's Net Neutrality Plan? (Sept. 2, 2014), http://sunlightfoundation.com/blog/2014/09/02/what-can-we-learn-from-800000-public-comments-on-the-fccs-net-neutrality-plan/. An initial analysis of 800,000 comments performed by the Sunlight Foundation estimated that “less than 1 percent of comments were clearly opposed to net neutrality.” Bob Lannon & Andrew Pendleton, What Can We Learn From 800,000 Public Comments on the FCC's Net Neutrality Plan? (Sept. 2, 2014), http://sunlightfoundation.com/blog/2014/09/02/what-can-we-learn-from-800000-public-comments-on-the-fccs-net-neutrality-plan/. A subsequent study of reply comments found that “[n]on-form-letter submissions had a similar sentiment distribution as comments in the first round, at less than 1% opposed to net neutrality.” Andrew Pendleton & Bob Lannon, One Group Dominates the Second Round of Net Neutrality Comments (Dec. 16, 2014), http://sunlightfoundation.com/blog/2014/12/16/one-group-dominates-the-second-round-of-net-neutrality-comments/. Knight Foundation, Decoding the Net Neutrality Debate at 15. Verizon, 740 F.3d at 644. Id. 2014 Open Internet NPRM, 29 FCC Rcd at 5570, para. 25. See, e.g., AARP Comments at 9 (explaining that pro-innovation and pro-competition regulatory certainty is needed to protect the exponential economic growth and economic benefits enabled by the Internet); Bright House Networks (Bright House) Comments at 1-2 (discussing the positive trend in investment and enhancement of Internet access services and competitive choices that took place under the prior open Internet rules); Communications Workers of America & National Association for the Advancement of Colored People (CWA & NAACP) Comments at 4 (“The ‘virtuous circle’. . . has led to nearly $230 billion in capital expenditures by the leading network and edge providers over the three-year period since the Open Internet Order took effect (2011 to 2013). Network providers were responsible for a full 84 percent of these capital expenditures, or $193 billion.”); Internet Innovation Alliance Reply at 7 (explaining that private capital investment in broadband networks has also grown under the open Internet rules); Online Publishers Association Comments at 3-4 (“For content innovation to continue flourishing online . . . the Commission should, consistent with the 2010 Open Internet Order, adopt open Internet principles that continue to encourage investment and innovation in content creation. . . .”). In the 2015 Broadband Progress Report, the Commission explained that “[b]roadband networks continue to grow due to significant investments by private industry. Some reports indicate that broadband providers invest tens of billions of dollars each year to further extend the reach of their networks, with providers spending a total $1.3 trillion since 1996 and $75 billion in 2013 alone.” 2015 Broadband Progress Report at para. 139. Additionally, the Commission noted that “[f]rom December 2011 to December 2013, Americans without access to a fixed 25 Mbps/3 Mbps broadband service or higher declined approximately 11 percentage points for the United States as a whole, declined 12 percentage points in rural areas, and declined 11 percentage points in urban areas.” Id. at para. 84. See also, e.g., AT&T Comments at 9 (“U.S. investment in broadband networks shows no signs of slowing: USTelecom reports that broadband capital expenditures rose from $64 billion in 2009 to $68 billion in 2012. AT&T has [devoted] more than $20 billion annually to capital investment.”); CenturyLink Comments at 4-5 (stating that “AT&T, Verizon, and CenturyLink, alone, report annual capital investment (of which the vast majority is for broadband network build-out) over the last three years in the approximate average amounts of $20 billion, $16 billion, and $3 billion, respectively. On the cable side, Comcast, Time Warner and Charter report annual broadband network investment of approximate average amounts of $5 billion, $3 billion, and $2 billion, respectively, over this same time period . . . . Moreover, a University of Pennsylvania report shows that per capita network investment in the United States is more than twice that of Europe.”); NCTA Comments at 7-8 (“Broadband providers in the U.S. have invested an astounding $1.2 trillion in private capital since 1996 to develop and deploy advanced broadband networks. Over the past two decades, the broadband industry has invested an average of $70 billion a year in our nation’s wired and wireless broadband networks. And this investment is only accelerating; in fact, since 2012, broadband providers in the United States have laid more high-speed fiber cables than in any similar period since 2000.”); Public Knowledge Comments at 25 (“[I]n June 2013, the number of [wireless] connections with downstream speeds of at least 10 Mbps increased by 118% over June 2012, to 103 million connections, including 45 million mobile connections. The most recent FCC data on Internet access service shows that the number of mobile Internet subscription connections with speeds over 200 kbps in at least one direction increased by 18% year over year to 181 million.”). See, e.g., Internet Innovation Alliance Reply at 7; Iridescent Networks Comments at 5 (explaining that “[t]he spread of mobile broadband and the extensive usage on the mobile networks is increasing at incredibly accelerating rates”); Massachusetts Department of Telecommunications and Cable (MDTC) Comments at 2 (noting that according to the Census Bureau of the U.S. Department of Commerce, “there was an estimated $71.2 billion dollars in retail e-commerce sales in the first quarter of 2014”); Roku Comments at iv, 3 & n.3 (stating that “Internet video traffic [was] estimated at 66 percent of all traffic in 2013 and expected to rise to nearly 79 percent in just four years” and that “the number of Americans that most often stream shows is up three percent since 2012, and that nearly a quarter of Americans say that they watch more streaming television than they did a year ago”); Telecommunications Industry Association (TIA) Comments at 8 (Regarding VoIP, “the number of residential VoIP subscribers through cable [rose] 10.1 percent in 2013 to 25 million. The non-cable VoIP market more than doubled between 2009 and 2012. The overall residential VoIP market will increase from 35.9 million subscribers in 2013 to 46.8 million in 2017.”); Writers Guild of America, West (WGAW) Comments at 6 (“The number of online videos viewed each month by Americans has increased from 7.2 billion in January of 2007 to 52.4 billion in December of 2013. Meanwhile, the segment of Americans who watch or download videos has grown from 69% of adult internet users in 2009 to 78% in 2013.”). See, e.g., Internet Innovation Alliance Reply at 7 (“In January, the well-respected Pew Center noted that 87 percent of Americans now use the Internet, up 8 percent from 2010, marking another ‘explosive adoption’ of Internet usage.”) (citing Susannah Fox and Lee Rainie, The Web at 25 in the U.S. 4, Pew Research Internet Project (2014)); see also 2015 Broadband Progress Report at para. 92 (explaining that from December 31, 2011 to December 31, 2013 “[a]doption grew 23 percentage points for fixed 25 Mbps/3 Mbps broadband service or higher (7 percent to 30 percent), 20 percentage points for fixed 3 Mbps/768 kbps service or higher (45 percent to 65 percent) and 6 percentage points for fixed 768 kbps/200 kbps service or higher (68 percent to 74 percent)”). See, e.g., Asian Americans Advancing Justice (AAJC ) Comments at 1-2 (explaining that a free and open Internet is critical for a variety of reasons including: “level[ing] the playing field for free speech, including for small and marginalized communities [and] empower[ing] our community to organize politically and promote civic engagement”); American Civil Liberties Union (ACLU) Comments at 2 (arguing that “[t]he equitable provision of high quality access to a free and open Internet, and especially the closing of the digital divide, represents one of the most important free speech challenges of the information age. As information technology advances apace, the meaningful exercise of our constitutional rights – including the freedoms of speech, assembly, press and the right to petition government – has become literally dependent on broadband internet access”); Open Media and Information Companies Initiative (Open MIC) Comments at 3 (noting that “Open Internet principles also promote free speech, civic participation, democratic engagement and marketplace competition, as well as robust broadband adoption and participation in the Internet community by minorities and other socially and economically disadvantaged groups”). See, e.g., AOL Comments at 2 (explaining that “[t]he Internet’s openness has fostered innovation and investment—both in advancements in network deployment and the services that ride upon them—creating . . . a virtuous circle, where richer and more diverse content on the ‘edge’ jump-starts demand, which brings about infrastructure investment, which brings about even richer and more diverse content”); CWA and NAACP Comments at 1 (“Preserving an open and free Internet consistent with the need to promote job-creating investment and closing the digital divide in our nation’s high speed networks is critical to safeguard our nation’s economic, social, and democratic fabric and future.”); European Digital Rights Comments at 2 (warning that “[a]n end to net neutrality in the USA will come at severe costs to innovation and competition, privacy and freedom of communication”); Online Publishers Association Comments at 3-4 (“For content innovation to continue flourishing online . . . and for broadband to serve more social objective[s], the Commission should adopt open Internet principles that continue to encourage investment and innovation in content creation, and ensure that the Internet is an open platform that supports consumer choice and the open exchange of ideas and information.”). See 2010 Open Internet Order, 25 FCC Rcd at 17910-11, para. 14. See also, e.g., Common Cause Comments at 2 (noting that “[i]ncreased broadband adoption and new service offerings demonstrate that Open Internet protections foster the ‘virtuous circle’ of innovation, generating both consumption and new discourse, driving additional investment and yet more creative applications”); Comcast Comments at 2 (explaining that substantial benefits such as economic growth, innovation, competition, free expression, and broadband investment and deployment are “closely tied to the Internet’s openness, which enables a ‘virtuous circle’ of innovation”); Higher Education and Libraries Comments at 5 (explaining that Internet openness is an essential driver of the “virtuous circle,” and “[t]he unimpeded flow of knowledge, information, and interaction across the Internet enables the circle of innovation, user demand, and subsequent broadband expansion that have generated the dramatic social, cultural, and economic benefits acknowledged by the Commission, the courts, and the nation as a whole”); Online Publishers Association Comments at 1 (“An open Internet enables innovators to create and offer new content, applications and services, and it allows development and distribution of new technologies by a broad range of sources, including broadband providers that operate the network.”); WTA – Advocates for Rural Broadband (WTA) Comments at 1 (arguing that “Internet openness will be promoted and enhanced as service providers are encouraged and enabled to invest in the deployment of higher and higher broadband capacities that enable their customers to obtain faster and more affordable access to new content, applications and services”). 2014 Open Internet NPRM, 29 FCC Rcd at 5570, para. 25; see also, e.g., ACLU Comments at 2 (“The equitable provision of high quality access to a free and open internet, and especially the closing of the digital divide, represents one of the most important free speech challenges of the information age. As information technology advances apace, the meaningful exercise of our constitutional rights- including the freedoms of speech, assembly, press and the right to petition government – has become literally dependent on broadband internet access.”); Al Franken, Edward J. Markey, Bernie Sanders, Ben Cardin, Sheldon Whitehouse, Cory Booker, Kirsten Gillibrand, Charles E. Schumer, Richard Blumenthal, Elizabeth Warren, and Ron Wyden (US Senators) Comments at 1 (“An open Internet has become the world’s most successful platform for innovation, job­creation and entrepreneurialism. An open Internet enables freedom of expression and the sharing of ideas around the world. An open Internet is driving economic growth throughout the United States.”); Comcast Comments at 2 (explaining that substantial benefits such as economic growth, innovation, competition, free expression, and broadband investment and deployment are “closely tied to the Internet’s openness, which enables a ‘virtuous circle’ of innovation”); Electronic Frontier Foundation (EFF) Comments at 1 (“An open, neutral, and fast Internet has helped spark an explosion of free expression, innovation, and political change.”). See, e.g., COMPTEL Comments at 2-3 (explaining that broadband providers serve as gatekeepers to transit providers and CDNs that deliver content to the broadband providers’ end users); Open Technology Institute at the New America Foundation and Benton Foundation (OTI) Comments at 11 (“[V]ertical integration, which provides greater incentive to block competitors, and . . . increasing horizontal consolidation, . . . increases the power of large ISPs and their resulting leverage as gatekeepers.”); Smithwick & Belendiuk Comments at 2 (“A handful of gatekeepers, the Internet Service Providers (‘ISPs’), control access to broadband customers.”); Vonage Comments at 16 (stating that “concentration in the broadband market exacerbates broadband providers’ ability to act as gatekeepers and their natural incentive to favor their own services over competitive edge services”). See 2010 Open Internet Order, 25 FCC Rcd at 17915-26, paras. 20-37. As the Commission explained in the Open Internet Order, examples such as the Madison River case, the Comcast-Bit Torrent case, and various mobile wireless Internet providers restricting customers’ use of competitive payment applications, competitive voice applications, and remote video applications, indicate that broadband providers have the technical ability to act on incentives to harm the open Internet. Id. at 17925, para. 35 & n.107. The D.C. Circuit also found that these examples buttressed the Commission’s conclusion that broadband providers’ incentives and ability to restrict Internet traffic could interfere with the Internet’s openness. Verizon, 740 F.3d at 648-49. See also, e.g., EFF Comments at 23 (noting that AT&T blocked Apple’s FaceTime iPhone and iPad applications over AT&T’s mobile data network in 2012); WGAW Comments at 14 (describing the situation where Comcast exempted its own online video service from data caps when streamed to an Xbox). It is not surprising that, during a decade in which the Commission vowed to keep the Internet open, that Commission policy served as a deterrent to additional bad acts. Verizon, 740 F.3d at 645. See, e.g., Internet Association Comments at 13 (“Broadband Internet access providers have long had the ability to engineer choke points into their networks in order to slow traffic from certain sources. Advances in network technologies, however, have provided them with an unprecedented ability to discriminate among sources and types of Internet traffic in real time and with little cost.”); Roku Comments at 14 (explaining that market power of broadband providers allows them to favor certain content with faster delivery or higher performance); AARP Comments at 47 (“The market power possessed by broadband providers in retail markets for broadband Internet access also translates into market power with regard to edge providers who need to reach their subscribers/users.”); Consumer Federation of America (CFA) Comments at 3 (“Competition is much weaker in the network segment of the digital platform than in the edge segments, which means network owners face less pressure to innovate; have the ability to influence industrial structure to favor their interests at the expense of the public interest; can use vertical leverage (where they are integrated) to gain competitive advantage over independent edge entrepreneurs; and have the ability to extract rents, where they possess market power or where switching costs are high.”). We are not persuaded by arguments to the contrary, as explained infra. But see AT&T Comments at 18 (“[T]he Commission appears to misunderstand the technical capabilities of broadband Internet access providers. In particular, the Commission’s assumption that providers have the ability to engage in end-to-end prioritization of Internet traffic is incorrect in the vast majority of cases.”); CenturyLink Comments at 11 (“[B]roadband providers are not able to sustain broadband price increases above competitive levels. If they did so, customers would simply choose another option.”). See, e.g., 2014 Open Internet NPRM, 29 FCC Rcd at 5576, para. 42 (citing the 2010 Open Internet Order, 25 FCC Rcd at 17924-25, para. 34); Ad Hoc Telecommunications Users Committee (Ad Hoc) Comments at 7; Public Knowledge Comments at 18-19 (arguing that mobile broadband is not a substitute for fixed broadband services, so its increased adoption does not “change the essential points” about broadband providers’ position as gatekeepers). See, e.g., Mozilla Comments at 25; COMPTEL Comments at 23; Free Press Comments at 44. But see Letter from Kathleen Grillo, Senior Vice President, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. at 18-23 (filed Jan. 15, 2015) (Verizon Jan.15, 2015 Ex Parte Letter) (arguing that the [gatekeeper] theory does not apply to mobile broadband); Letter from Jonathan Banks, Senior Vice President, Law & Policy, USTelecom, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2-3 (filed Feb. 18, 2015) (USTelecom Feb. 18, 2015 Ex Parte Letter) (arguing that the gatekeeper theory is inapplicable to broadband in general because the Commission made its original arguments on this theory in the context of voice services subject to a calling party network pays regime, and reliance on switching costs as a justification was irrelevant to those original findings). See, e.g., Ad Hoc Comments at 8-9 (discussing the incentive of broadband providers to demand paid prioritization fees); Bauer, Clark & Claffy Reply at 4 (“Access ISPs presumptively have market power as a [gatekeeper], and can impose both technical and economic harms as part of a business negotiation, or favor their own higher-level services.”); Microsoft Comments at 10 (explaining that broadband providers can use their power as gatekeepers “to pressure edge providers into entering such arrangements and demand increasingly higher rates and greater concessions from edge providers over time”); Netflix Comments at 12 (stating that its dispute with Comcast shows how a broadband provider can use its position as gatekeeper “to harm edge providers, its own customers, and the virtuous circle by discriminating at interconnection and peering points”); Roku Comments at 8 (noting that preferences for affiliated content pose imminent threats to consumer choice and competition); see also infra Section REF _Ref412402795 \r \h III.C.1.c; para. REF _Ref410923234 \r \h \* MERGEFORMAT 81 (discussing the relationship between switching costs and broadband providers’ gatekeeper position). See, e.g., Ad Hoc Comments at 13; Bauer, Clark & Claffy Comments at 4 (arguing that one way to limit broadband providers’ gatekeeper power is “to require ISPs to provide adequate means for edge providers and off-net users to reach their customers over interconnection and transit links”). See Verizon,740 F.3d at 646 (quoting 2010 Open Internet Order, 25 FCC Rcd at 17919, 17935, paras. 24, 50). We find, for example, that even though edge providers may possess bargaining power, they do not have the same ability as broadband providers to control the flow of traffic or block access to the Internet. See, e.g., 2010 Open Internet Order, 25 FCC Rcd at 17918, para. 24 & n.66 (explaining that a broadband provider can act as a gatekeeper even if some edge providers would have bargaining power in negotiations with broadband providers over access or prioritization fees). See also infra Section REF _Ref412402852 \r \h III.F.1-2. We note that Judge Silberman expressed concern over relying on the terminating monopoly and gatekeeper concepts because terminating monopolies are not largely discussed outside of Commission jurisprudence, and “[t]he gatekeeper effect is a tool that facilitates the exercise of market power over sellers; it is not market power itself.” Verizon, 740 F.3d at 663 & n.7 (Silberman, J., concurring in part and dissenting in part). However, our reliance on these terms for our determinations today focuses on how this unique “gatekeeper” position of broadband providers in combination with other realities about broadband availability and access affects broadband providers’ incentives and abilities to harm the open nature of the Internet. As explained further below, the Commission’s discussion of these terms is especially important in combination with switching costs and limited retail broadband competition for fixed broadband. With respect to mobile, the presence of some additional retail competition is not enough to alter our conclusion here. See infra Section REF _Ref412403030 \r \h III.B.3. See, e.g., Ad Hoc Comments at 12 (noting that “[a]t this point in time, there is no evidence to suggest that a sizable number of consumers actually procure Internet access service from multiple ISPs simultaneously or that they would be able to switch seamlessly from one ISP to another in order to receive content from a provider imposing restrictions or burdensome charges on edge providers”); Level 3 Comments at 3 (“[T]he largest mass-market retail ISPs stand in a uniquely favorable place in the Internet ecosystem: they control access to several million users who cannot be reached through alternate routing. In Internet terms, these mass-market customers are ‘single-homed,’ meaning they draw service from a single ISP. This contrasts with enterprise users, who are frequently ‘multi-homed,’ meaning that they can access the Internet through more than one ISP.”). But see Layton Reply at 20-21 (arguing that pre-paid mobile services may be purchased in exchange for, or in supplement to, a family broadband plan, which is a form of multi-homing); Verizon Jan. 15, 2015 Ex Parte Letter Attach. at 29 (arguing that customers multi-home when purchasing both mobile wireless and fixed service, allowing consumers to “substitute across those providers”). However, many customers view fixed and mobile broadband services as distinct product offerings. See supra para. REF _Ref413068209 \r \h 9; 2015 Broadband Progress Report at para. 120 (“We recognize that many households subscribe to both fixed and mobile services because they use fixed and mobile services in fundamentally different ways and, as such, view fixed and mobile services as distinct product offerings.”) and Public Knowledge Comments at 18-19 (arguing that mobile broadband is not a substitute for fixed broadband services, so its increased adoption does not “change the essential points” about broadband providers’ position as gatekeepers). See, e.g., Access Comments at 15; Consumers Union Comments at 14; People of the State of Illinois and People of the State of New York (Illinois and New York) Comments at 11; Public Knowledge Comments at 17. Applications of AT&T Inc. and DIRECTV for Consent to Assign or Transfer Control of Licenses and Authorizations, MB Docket No. 14-90, Katz Decl. at 28, n.57 (filed June 11, 2014) (quoting AT&T internal report). See, e.g., Consumers Union Comments at 14 (referring to a January 2014 Consumer Reports article that reported that “high switching costs continue to serve as barriers to customers freely changing carriers”); see also, e.g., ACLU Comments at 4 (explaining that although they present problems in both the mobile and fixed contexts, “concentration and consumer lock-in are particularly acute in the fixed broadband market”); EFF Comments at 1 (warning that “switching costs and consumer lock-in further undermine the ability of marketplace forces to prevent non-neutral practices”). In the 2015 Broadband Progress Report, the Commission noted that approximately 55 million Americans live in areas unserved by terrestrial-fixed broadband meeting the 25 Mbps/3 Mbps benchmark. In addition, people living in rural and on Tribal lands are disproportionately lacking access to broadband at this increased benchmark speed. Data show that 25 Mbps/3 Mbps is available to 92 percent of Americans living in urban areas, 47 percent of Americans in rural areas, and 37 percent of Americans on Tribal lands. 2015 Broadband Progress Report at 79. This data suggests that meaningful alternative broadband options may be largely unavailable to many Americans, further limiting the ability to switch providers. Based on the submissions from various commenters, it appears that between 65% and 70% of households have at most two options for high speed Internet access. See, e.g., Common Cause Comments at 2; Access Comments at 14. When we look to the new standard articulated in the 2015 Broadband Progress Report, the data suggest that only 12 percent of households have 3 or more options for 25 Mbps/3 Mbps broadband service; 27 percent of households have two provider options for this service; and 45 percent of households have only single provider option for these services. Approximately 16 percent of households reside in areas without a single provider of fixed broadband services. See 2015 Broadband Progress Report at 83. See, e.g., Cogent Reply at 24-26 (advocating for enhanced disclosure requirements that would provide customers with information such as performance data for speeds of popular edge-provider content); Utilities Telecom Council Reply at 13 (explaining that “the unstructured and open nature of the Internet provides tremendous opportunities for innovation and growth, yet it also prevents end users from fully understanding the current or potential limitations of any particular service offering”). See, e.g., COMPTEL Comments at 18 (explaining that some carriers offering unlimited data plans may need to limit speeds of customers using more than 5GB of data per month); iClick2Media Comments at 2 (describing a concern that an end user may pay “for one thing and is given something else that is suppose[d] to be comparable but is not i.e. paying for an unlimited plan but throttling the End user[’s] speed down if they reach a certain point”). See infra paras. REF _Ref410923283 \r \h \* MERGEFORMAT 97- REF _Ref410923290 \r \h \* MERGEFORMAT 99. See, e.g., Consumers Union Comments at 13; see also, e.g., ACLU Comments at 5 (arguing that the “logical corollary to this incentive and ability is the potential for broadband providers’ to engage in content-based regulation of edge providers’ applications, services, devices or programming”). 2015 Broadband Progress Report at para. 83. See, e.g., Internet Association Comments at 15; Consumers Union Comments at 3 (agreeing that “vertically integrated providers can restrict access to affiliated content or block, degrade, or otherwise act contrary to open Internet principles with respect to delivery of unaffiliated online video to their broadband subscribers”); Roku Comments at 8 (noting that such preference for affiliated content poses imminent threats to consumer choice and competition); Vermont Public Service Board and Vermont Public Service Department (Vermont) Reply at 5 (warning that paid prioritization arrangements, for example, can allow broadband providers to “to skew the playing field in favor of their own preferred services, products, information, and partners”); OTI Comments at 28-29 (explaining that mobile carriers have demonstrated that they have the incentives and inclination to block or throttle to favor their own services). See, e.g., Internet Association Comments at 3. See Public Knowledge Comments at 48; see also Consumers Union Reply at 2 (explaining that “even if providers do not block content outright, providers can still utilize their market power to harm consumers in more subtle ways, such as by lowering data caps or exempting their own services from such caps”); Roku Comments at 1-2 (“[T]hrottling is only the most transparent of a long list of discriminatory actions that an ISP with market power can undertake. To promote and protect an open Internet, the FCC’s rules and policies must guard against a broader list of discriminatory conduct that has the effect of restricting, degrading, or otherwise interfering with consumer access to lawfully available content or services.”). For a more comprehensive discussion, see infra Section REF _Ref412403055 \r \h III.C.2. See Fiber to the Home Council Americas (FTTH) Comments at 4. See, e.g., Microsoft Comments at 10 (“Preferential transmission arrangements are particularly concerning because broadband access providers can use their [gatekeeper position] to pressure edge providers into entering such arrangements and demand increasingly higher rates and greater concessions from edge providers over time.”); Access Comments at 8 (commenting that with regard to prioritization, broadband providers have incentives that could lead to “invest[ing] in infrastructure to disproportionately improve the priority option, cease investment in infrastructure that helps the network as a whole, create artificial scarcity, or even degrade the quality of the current non-priority infrastructure to make prioritized options seem more attractive.”); EFF Comments at 1 (noting that broadband providers “have economic incentives to leverage their ownership of the transmission infrastructure at the expense of the open and neutral Internet”); Media Alliance Comments at 2 (agreeing that there are “short-term incentives for network providers to block or disadvantage particular providers or classes of providers, charge for prioritized access to end users, or degrade or decline the level of service provided to non-prioritized content”). See infra Section REF _Ref412403077 \r \h III.C.1.c. 2010 Open Internet Order 25 FCC Rcd at 17919-20, para. 25. Id. at 17920, para. 25, n.68. See, e.g., Senator Ron Wyden Comments at 6 (“The risks identified by the Commission in 2010 have not gone away; if anything, the Internet is even more important to social and economic interactions and the market conditions are even more threatening.”); see also ACLU Comments at 7 (discussing the Commission’s explanation of negative externalities in the Open Internet Order, and explaining that “[i]deally, competitive pressures would encourage demand growth at all points in the broadband market. Unfortunately, given the oligopolistic nature of the local broadband market, many providers can collect the overcharge represented by a paid prioritization or similar agreement while not taking the hit from lowered demand flowing from poorer or more expensive internet service.”); Mozilla Comments at 21 (arguing that “[p]aid prioritization has a distinct degrading effect on other access service traffic, an effect that creates complex incentives for network operators. It also represents a visceral deviation from the end-to-end, best efforts history of the Internet, meaning that as a practical matter, it’s impossible to understand ex ante the full effects and potential negative externalities that could arise.”). See Verizon, 740 F.3d at 648 (citing 2010 Open Internet Order, 25 FCC Rcd at 17923, para. 32). See 2010 Open Internet Order, 25 FCC Rcd at 17923, para. 32, n.87. Verizon, 740 F.3d at 648. We note further that, of course, our reclassification of broadband Internet access service as a “telecommunications service” subject to Title II below likewise does not rely on such a test or any measure of market power. Indeed, our reclassification decision is based on whether BIAS meets the statutory definition of a “telecommunications service,” and not any additional economic circumstances. We note, however, that in areas where there are limited competitive alternatives, this may exacerbate other problems such as the ability to switch from one provider to another. See 2015 Broadband Progress Report at para. 83 (indicating that data show that only 12 percent of households have 3 or more options for 25 Mbps/3 Mbps broadband service; 27 percent of households have two provider options for this service; and 45 percent of households have only a single provider option for these services). See supra Section III.B.2.a. See Broadband Internet Technical Advisory Group, Real-Time Network Management of Internet Congestion at 19 (2013), http://www.bitag.org/documents/BITAG_-_Congestion_Management_Report.pdf (BITAG Congestion Report) (discussing which traffic is subject to congestion management). Id. at 19 (discussing application-based congestion management). See Jon Peha Comments at 3; NetAccess Futures Comments at 13-14 (noting that these mechanisms are “indispensable for network function or reasonable network management, [but all] of these mechanisms can also be abused, to the detriment of Open Internet principles”). See Internet Association Comments at 14; see also Tumblr Reply at 6-7 (warning that “[w]hether broadband providers engage in blocking, discrimination, or access fees through deep packet inspection, or engage in functionally equivalent practices through underinvestment at points of interconnection, consumers and edge providers will still be harmed, and innovation and free expression will still be stifled”). But see NCTA Comments at 15 (claiming that “[e]ven if broadband providers had an incentive to degrade their customers’ online experience in some circumstances, they have no practical ability to act on such an incentive”). See NetAccess Futures Comments at 16; Jon Peha Comments at 3 (filed July 15, 2014) (explaining that “[m]ethods to discriminate among traffic classes once traffic has been categorized include separation of traffic into separate real or virtual channels, and use of traffic control algorithms for functions such as packet scheduling, packet dropping, or routing that discriminate”) (emphasis in original); OTI Comments at 18 (arguing that “[i]t does not matter either to consumers or to applications providers if the carriers abuse their power through interference that takes advantage of deep packet inspection in routers in their network or through interconnection abuse—the resulting harms are the same”). 2010 Open Internet Order, 25 FCC Rcd 17956, para. 93. Id. Id. at 17956-57, para. 94. Id. Id. Id. at 17957, para. 95 Id. 2014 Open Internet NPRM, 29 FCC Rcd at 5583, para. 62. Id. Although we adopt the same rules for both fixed and mobile services, we recognize that with respect to the reasonable network management exception, the rule may apply differently to fixed and mobile broadband providers. See infra Section REF _Ref412403103 \r \h III.D.4. Cisco, Cisco Visual Networking Index: Global Mobile Data Traffic Forecast Update 2010-2015 at 13 (2011). Cisco, Cisco Visual Networking Index: Forecast Highlights (2014), http://www.cisco.com/web/solutions/sp/vni/vni_forecast_highlights/index.html. These connection speeds are inclusive of all types of devices, while speeds for smartphones may be higher. Cisco reported an average connection speed of 9,942 kbps for smartphones in 2013. Id. Long-Term Evolution (LTE) is a high-speed packet switched mobile broadband network technology. Starting in 2014, some operators introduced LTE-Advanced, mainly by using carrier aggregation and more capable devices. Telegeography, US Remains at Forefront of LTE Service Adoption (Mar. 15, 2012), https://www.telegeography.com/products/commsupdate/articles/2012/03/15/us-remains-at-forefront-of-lte-service-adoption/ (last visited Feb. 10, 2015). CTIA Blog, Mobile Broadband: A Story of Dynamism and Transformation (Jan. 9, 2015), http://blog.ctia.org/2015/01/09/dynamism/ (last visited Feb. 10, 2015). Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993; Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 13-135, Seventeenth Report, 29 FCC Rcd 15311 (Wireless Tel. Bur. 2014) (17th Mobile Wireless Report); Robert F. Roche & Liz Dale, Annual Wireless Survey Results: A Comprehensive Report from CTIA Analyzing the U.S. Wireless Industry (June 2014). Section 6002(B) of the Omnibus Budget Reconciliation Act of 1993;Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 11-186, Sixteenth Report, 28 FCC Rcd 3700, 3910-11, para. 334 (Wireless Tel. Bur. 2013) (16th Mobile Wireless Report). See AT&T, AT&T Adds High-Quality Spectrum to Support Customers’ Growing Demand for Mobile Video and High-Speed Internet (Jan. 30, 2015), http://about.att.com/story/att_adds_high_quality_spectrum_to_support_growing_demand_for_mobile_video_and_high_speed_internet.html. T-Mobile Reply at 5. Letter from Abigail Slater, Vice President Legal and Regulatory Policy, Internet Association to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Oct. 13, 2014). OTI Comments at 33-34. Id. at 33. Stephen J. Blumberg & Julian V. Luke, Wireless Substitution: Early Release of Estimates from the National Health Interview Survey, January-June 2014 at 5, U.S. Department of Health and Human Services, Centers for Disease Control and Prevention (Dec. 2014), http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201412.pdf. Id. at 2. Living in poverty is defined as being below the U.S. Census Bureau’s household income poverty thresholds. Higher income is defined as having an income of 200 percent of the poverty threshold or greater. Id. at 7. See 17th Mobile Wireless Report, 29 FCC Rcd at 15338, para. 55 (presenting data that, as of January 2014, 92.0 percent of non-rural U.S. POPs lived in a census block covered by 4 or more mobile broadband providers, while the figure was 39.6 percent for rural U.S. POPs). One should note however, that the number of providers in a census block represent network coverage, which does not necessarily reflect the number of choices available to a particular individual or household. Coverage calculations based on Mosaik data, while useful for measuring developments in mobile wireless coverage, have certain limitations that likely overstate the extent of mobile wireless coverage. See id. at 15333, para. 45 n.69. Microsoft Comments at 21. See, e.g., OTI Comments at 57-59 (arguing that “[t]here is nothing about the technology of today’s increasingly prevalent 4G wireless data networks that should preclude compliance with open Internet protections, including the extension of basic Carterfone protections to mobile broadband Internet access networks. Although mobile 4G/LTE technologies have advanced considerably since 2010, they have evolved in a manner that make open platforms and a non-discrimination rule far more feasible to implement than the Commission anticipated four years ago.”). See, e.g., OTI Reply at 23-24; Cisco, Integrated DPI and Cisco In-Line Services: Optimize the Flow of Traffic and Monetize Your Network, www.cisco.com/c/en/us/solutions/collateral/wireless/network-traffic-optimization/white_paper_c11-607164-00.html (last visited Feb. 10, 2015) (“Industry experts agree that DPI and its complementary applications are the best way to increase network efficiency and a mobile operator's revenue.”); see also Sandvine, Deep Packet Inspection (DPI), https://www.sandvine.com/platform/deep-packet-inspection.html (last visited Feb. 10, 2015). See supra paras. REF _Ref411504320 \r \h \* MERGEFORMAT 82- REF _Ref410927166 \r \h \* MERGEFORMAT 83. 2010 Open Internet Order, 25 FCC Rcd at 17956, para. 93. Id. See, e.g., CDT Comments at 28; Consumers Union Comments at 11-14; Cox Comments at 8-11; Frontier Comments at 8-10; Internet Association Reply at 5-7; Microsoft Comments at 19-27; Mozilla Reply at 20-21; NCTA Comments at 69-70; OTI Comments at 27-28; Public Knowledge Comments at 23-24; Time Warner Cable (TWC) Comments at 27-28; Vonage Comments at 30-33. CTIA Comments at 11-13. T-Mobile Reply at 2. Verizon Reply at 27; see also Verizon Jan. 15, 2015 Ex Parte Letter Attach. at 6-8. AT&T Reply at 60-79. Letter from Scott K. Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Nov. 6, 2014); see also Letter from Scott K. Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (CTIA Feb. 10, 2015 Ex Parte Letter) (“Today, the mobile broadband market is even more competitive than it was in 2010: Data from the Commission’s just-released Seventeenth Report shows that 82% of Americans can choose among four or more mobile broadband providers.”) However, we note that this data cited from the 17th Mobile Wireless Report represent network coverage, which does not necessarily reflect the number of choices available for purchase by a particular individual household. Coverage calculations are based on Mosaik data, which have certain limitations that likely overstate the extent of mobile wireless coverage. Furthermore, as discussed above, the ability of broadband providers to threaten the open Internet does not depend on them having market power over their end users. See also infra para. REF _Ref411611018 \r \h 98 (citing some recent examples of consolidation in the wireless industry); Policies Regarding Mobile Spectrum Holdings, WT Docket No. 12-269, Report and Order, 29 FCC Rcd. 6133, 6156-57, para. 46 (2014) (describing past consolidation of the wireless industry, including in terms of factors beyond only the number of competitors, such as market shares and spectrum holdings). Mozilla Reply at 22. OTI Comments at 4-5. 700 MHz Second Report and Order, 22 FCC Rcd at 15359, para. 60; 47 C.F.R. § 27.16. See Microsoft Comments at 6. See generally Cellco Partnership d/b/a Verizon Wireless, File No. EB-11-IH-1351, Acct. No. 201232080028, FRN 0003290673, Order and Consent Decree, 27 FCC Rcd 8932 (2012). AT&T initially restricted use of Apple’s FaceTime and iPad application to times when the end user was connected to Wi-Fi and thus to another broadband provider. The Commission did not conclude whether such a practice violated open Internet principles. See David Kravets, AT&T Holding FaceTime Hostage is No Net-Neutrality Breach, Wired.com (Aug. 22, 2012) http://www.wired.com/threatlevel/2012/08/facetime-net-neutrality0flap/ (last visited Feb. 10, 2015); see also Open Internet Advisory Committee, 2013 Annual Report (Aug. 20, 2013), at 39-46, http://transition.fcc.gov/cgb/oiac/oiac-2013-annual-report.pdf (2013 OIAC Annual Report). See Prepared remarks of FCC Chairman Tom Wheeler, 2014 CTIA Show, Las Vegas, NV (Sept. 9, 2014). Consumers Union Reply at 9. WGAW Comments at 15. But see CTIA Reply at 17. OTI Comments at 29-30. Microsoft Comments at 25. European Commission, 1 in 4 European Internet Users Still Experience Blocking of Internet Content, Study Shows (Feb. 27, 2014), http://europa.eu/rapid/press-release_MEMO-14-136_en.htm. Id. OTI Reply at 25; see also Letter from Michael Calabrese, Director, Wireless Future Project, New America Open Technology Institute and Delara Derakhshani, Policy Counsel, Consumers Union, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 5 (filed January 28, 2015) (OTI/Consumers Union Ex Parte Letter). Microsoft Comments at 23-24. Id. See OTI/Consumers Union Ex Parte Letter at 3-4 (“Despite recent increased price competition from T-Mobile and Sprint, the two dominant carriers (AT&T and Verizon) continue to enjoy industry-low customer churn rates. In 2014 AT&T realized both its lowest churn rate for a quarter (0.86 percent among postpaid subscribers) and for a full year (1.035 percent).”). Average monthly churn across AT&T, Sprint, T-Mobile, and Verizon Wireless was 1.56 percent in the first three quarters of 2014, compared to 1.83 percent in all of 2007. See 16th Mobile Wireless Report, 28 FCC Rcd at 3865, Chart 18; 17th Mobile Wireless Report, 29 FCC Rcd at 15325, Chart II.B.6. See OTI/Consumers Union Ex Parte Letter at 4 (“The American Customer Satisfaction Index found that wireless service ‘remains among the lower-scoring categories’ of industries they review. Among the 43 major U.S. industries rated, the consumer satisfaction ranking of mobile carriers are tied for 38th worst with the U.S. Postal Service and just one spot above the satisfaction score of airlines (wireline ISPs are dead last). The OTI representative stated that it would be completely implausible to attribute historically low churn rates to consumer satisfaction when, in fact, consumer satisfaction is among the lowest five industries among America’s 43 largest consumer-facing industries.”); see also Consumers Union Comments at 14 (“A January 2014 Consumer Reports article reported that high switching costs continue to serve as barriers to customers freely changing carriers. Thirty-one percent of survey respondents said that they are seriously considering switching providers, but one in six of that group said that they cannot switch because long-term contracts and early termination fees handcuff them to carriers.”). But see CTIA Feb. 10, 2015 Ex Parte Letter at 3-4 (disagreeing with New America and Consumers Union by arguing that surveys show high levels of customer satisfaction); Verizon Jan. 15, 2015 Ex Parte Letter Attach. at 10-11 (arguing that recent levels of churn show that many consumers can switch). Although a number of consumers may well be satisfied with their mobile broadband service, the surveys cited by OTI and Consumers Union also suggest that there are significant numbers of dissatisfied customers who feel they cannot switch. These consumers are likely to have difficulty responding to broadband provider polices that disrupt the open Internet. OTI/Consumers Union Ex Parte Letter at 4. Paul de Sa, Ian Chun, and Julia Zhen present an analysis of the price plans available from AT&T, Sprint, T-Mobile, and Verizon Wireless during the summer of 2014, concluding that “it almost always makes economic sense for ‘perfectly rational’ subscribers to change carriers, as there are generally cheaper plans available from rival carriers to attract switchers.” The authors argue that the low observed switching rates, despite the availability of these plans, “suggest[] that many other factors aside from price are relevant drivers of churn, consistent with [the authors’] view of substantial demand inertia.” Paul de Sa, Ian Chun, and Julia Zheng, Bernstein Research, A Different Way to Compare Mobile Pricing (Or Does Discounting Matter?) at 5 (August 21, 2014) (Aug. 2014 de Sa Pricing Report) (emphasis in original). Vonage Comments at 17-18; see also Policies Regarding Mobile Spectrum Holdings, WT Docket No. 12-269, Report and Order, 29 FCC Rcd 6133, 6146-47, paras. 24-25 (2014); OTI/Consumers Union Ex Parte Letter at 5-6. See supra note NOTEREF _Ref410923348 \h \* MERGEFORMAT 182; OTI/Consumers Union Ex Parte Letter at 2 (“Phone number portability is administered so that it works well only for national carriers, since consumers often don’t have the option to keep their number when moving from a national to non-national carrier.”). See Public Knowledge Comments at 18 (“Switching providers incurs uncertainty costs because it is very difficult for consumers to assess the quality of a new service in advance. However, allowing paid prioritization and other blocking systems can create additional sources of uncertainty that magnify access networks’ market power. In particular, customers may not be able to ascertain the sources of internet access problems, and therefore may attribute quality of service issues to edge providers instead of network operators. Regardless of what party might be responsible for the situation, ‘[t]he fact that the quality of the network services is opaque to consumers under discrimination, confers additional market power to access networks.’”). New America OTI/Consumers Union Ex Parte Letter at 4. Wireless service providers are differentiated in terms of their network performance, coverage, device lineups, and plan features, among other things. See 17th Mobile Wireless Report, para 168. See also CTIA Feb. 10, 2015 Ex Parte Letter Attach. at 19 (“In 2013 alone, the four major carriers offered nearly 700 combinations of smartphone plans, and a family of five had in excess of 250 choices to select from.”). OTI/Consumers Union Ex Parte Letter at 2 (“Of course, subscribers can switch carriers, but relatively few do primarily because of the multiple strategies that carriers use to create both the perception and the reality of substantial financial penalties, loss of time and uncertainties about retaining your data or even, in some cases, your phone number.”) (emphasis in original). See, e.g., Microsoft Comments at 24 (In the U.S., “[p]art of the reason churn is so low is because customers sign two-year contracts with high early termination fees. Another is that many customers are on family or enterprise plans, which are often more ‘sticky’ and make it more difficult for customers to switch carriers.”). But see AT&T Reply at 60-65 (noting that “many innovative service plans provide the option of eliminating early termination fees” and that “this recent shift in the industry away from ETFs has significantly reduced the cost of switching providers and enabled customers to act immediately when a competitor introduces a more attractive service offering”). However, although there have been recent promotions by some providers regarding ETFs and some developments in secondary markets for contracts and devices, ETFs continue to affect a large proportion of customers who do not elect to purchase their phones up front, and switching costs remain due to the other factors discussed above. A majority of nationwide mobile broadband providers charge ETFs, which currently range from approximately $350 to $650, based on the type of plan and the number of members in the plan. Typically, the ETFs are pro-rated based on an average 2-year contract plus the cost of an associated handset (which can amount to as much as $650 for a high end phone such as an iPhone 6). Furthermore, it is not clear that ETF promotions will continue to always be available. See 17th Mobile Wireless Report, 29 FCC Rcd at 15382, para. 145; OTI/Consumers Union Ex Parte Letter at 2 (arguing that T-Mobile’s ETF offer is “a temporary marketing strategy”); see infra note NOTEREF _Ref411611371 \h 222. See, e.g., Free Press Comments at 31-32, n.47 (arguing that differences in network technologies and frequency bands can lead to handset incompatibilities, meaning customers must purchase new equipment); Aug. 2014 de Sa Pricing Report at 2 (“In general, other carriers’ phones (at least for iPhones) cannot easily be ported to Verizon or Sprint, and Sprint phones cannot be brought to other carriers.”). Should customers require that their devices be unlocked, they may be subject to ETFs, per CTIA’s Consumer Code. CTIA, Consumer Code for Wireless Service, http://www.ctia.org/policy-initiatives/voluntary-guidelines/consumer-code-for-wireless-service (last visited Feb. 12, 2015). OTI/Consumers Union Ex Parte Letter at 3. But see CTIA Feb.10, 2015 Ex Parte Letter at 3 (disagreeing with New America and Consumers Union’s assertions about high switching costs and the effects of family plans, citing to ETF buyout offers). We discuss some caveats to ETF buyout promotions above. Furthermore, because ETF rebates can take months to process, they may not be adequate switching incentives for credit- and liquidity-constrained customers. This may be particularly true when dealing with multiple ETFs at once, as in a family or shared plan. T-Mobile, ETF Reimbursement FAQs, https://www.switch2t-mobile.com/ (last visited Feb. 12, 2015); Sprint, It’s a T-Mobile Triple Threat, http://www.sprint.com/landings/tmobile-buyback/index.html (last visited Feb. 12, 2015); Verizon, Switch and Save. http://www.verizonwireless.com/landingpages/switch-and-save/ (last visited Feb. 12, 2015). See also Simon Flannery and Jon Mark Warren, AT&T and Verizon, US Wireless: The Trouble with Churn at 3 (Aug. 7, 2013) (“Family/Shared plans promote lower churn because of the lower per-line cost, the networking effect (friends and family on the same network), and the difficulty of coordinating a carrier change.”). Id at 3. OTI and Consumers Union report that nearly 70 percent of AT&T’s and 61 percent of Verizon Wireless’s postpaid subscribers had shared plans as of the fourth quarter of 2014, compared to 33 percent and 46 percent, respectively, in the fourth quarter of 2013. Id. Verizon Reply at 28; CTIA Comments at 7, 25; Mobile Future Comments at 11-12; AT&T Reply at 84-86. T-Mobile Reply at 2. 2010 Open Internet Order, 25 FCC Rcd at 17928, para. 39 (noting that there are some costs to implementing open Internet rules, such as additional disclosures about broadband provider practices, but these costs are not overly burdensome, and they are outweighed by the substantial benefits provided by the rules). Below, we further discuss the costs associated with enhanced transparency. See infra Section REF _Ref412403131 \r \h III.C.3.b(i). See also, e.g., AOL Comments at 2 (explaining that “[t]he Internet’s openness has fostered innovation and investment—both in advancements in network deployment and the services that ride upon them—creating . . . a virtuous circle, where richer and more diverse content on the ‘edge’ jump-starts demand, which brings about infrastructure investment, which brings about even richer and more diverse content”); Open MIC Comments at 3 (noting that “[o]pen Internet principles also promote free speech, civic participation, democratic engagement and marketplace competition, as well as robust broadband adoption and participation in the Internet community by minorities and other socially and economically disadvantaged groups”). See infra Section III.C.3.b.i.; see also infra para. REF _Ref410884964 \r \h \* MERGEFORMAT 112 (supporting the idea that the burdens should not be overwhelming because many broadband providers still voluntarily continue to abide by the 2010 no-blocking rule, even though they are no longer legally required to do so). See, e.g., Center for Rural Strategies Reply at 1 (arguing that “entrepreneurs, artists, educators, activists, healthcare providers, and devoted community members . . . deserve a fair playing field. The Open Internet has given us the opportunity to revitalize Rural America’s local economies, share our culture with global audiences, and amplify rural voices in debates shaping our society. But we are at risk of losing this valuable tool, even when 14.5 million of us cannot yet access it.”); Letter from Edyael Casaperalta, Rural Broadband Policy Group Coordinator, National Rural Assembly to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 1 (filed Oct. 20, 2014) (explaining that “[i]t is the neutrality of the Open Internet that has given rural people an opportunity to launch businesses from our hometowns, revitalize our regional economies, share rural culture with global audiences, and amplify rural voices in debates shaping our society. Simply put, rural communities depend on Network Neutrality to get a fair shake online”). See, e.g., Public Knowledge Comments at 27 (“Many traditionally disadvantaged communities rely on wireless as their only internet connection and thus have the most to lose from discrimination over wireless.”); see also, e.g., Independent Filmmaker Organizations Reply at 11 (explaining that they “are especially concerned that limiting the extent to which Open Internet rules apply to mobile broadband providers allows providers to maintain too much control over the quality and kind of content consumers can access. This presents the real danger of creating a second class of Internet access service for those who can only access the Internet through mobile broadband. These individuals are often underrepresented individuals in low income or minority groups who are already on the wrong side of the digital divide and are most in need of the Commission’s attention and support.”); National Minority Organizations (MMTC) Comments at 6 (noting that “nearly 75 percent of African American and 68 percent of Hispanic cell phone owners use their devices to access the Internet, and these numbers are increasing”). See, e.g., Letter from Emily Sheketoff, Executive Director, Washington Office, American Library Association (ALA), to Marlene H. Dortch, Secretary, FCC, WC Docket No. 14-28, at 1-2 (filed Nov. 6, 2014) (“The Internet has become a vitally important platform for libraries and higher education in a wide variety of ways, such as for multi-media instruction and distance learning, educational collaboration through document-sharing websites and applications, storage and retrieval of digital archives, tele-health information, public access to Internet information, and many other educational services. Ensuring the Internet remain an open platform is absolutely essential for libraries to serve their communities.”); see also, e.g., AAJC Comments at 2-3 (“A free and open Internet ecosystem is critically important to the Asian American community for a number reasons including . . . creat[ing] opportunities for online education, especially for English language learners.”); American Association of State Colleges and Universities et al. Comments 2 (“Our nation’s libraries and institutions of higher education are leaders in creating, fostering, using, extending and maximizing the potential of the Internet for research, education and the public good. Libraries and institutions of higher education depend upon an open Internet to fulfill their missions and serve their communities.”). See, e.g., CWA & NAACP Comments at 4 (noting that CWA and NAACP agree with the Commission’s assertion that one of the primary reasons there have been limited violations of Internet openness is because the Commission has had policies in place to address misconduct). See supra Section III.A.; see also, e.g., Layton Comments at 19. See, e.g., Greenlining Institute et al. Comments at 3 (“By rejecting the Commission’s anti-blocking and anti-discrimination rules, the Verizon court has opened up the possibility that without the Commission’s intervention, carriers will determine the winners and losers of the digital world.”); see also Verizon, 740 F.3d at 645 (finding that the Commission “adequately supported and explained” that absent open Internet rules, “broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment”). See, e.g., Ad Hoc Comments at 19-20 (discussing potential market distortions caused by paid prioritization agreements). See, e.g., Access Comments at 8 (commenting that broadband providers have incentives that could lead to “invest[ing] in infrastructure to disproportionately improve the priority option, cease investment in infrastructure that helps the network as a whole, create artificial scarcity, or even degrade the quality of the current non-priority infrastructure to make prioritized options seem more attractive”); MDTC Comments at 3-4; see also AARP Comments at 17 (stating that individualized bargaining “will institutionalize pay-for priority schemes and undermine innovation and investment”); Illinois and New York Comments at 11-12 (arguing that individualized prioritization agreements could complicate meaningful disclosures by making them overly difficult for consumers to understand). See infra Sections III.C.1.a-b. See supra Section IV.B. We acknowledge other laws address behavior similar to that which our rules are designed to prevent; however, as discussed below, we do not find existing laws sufficient to adequately protect consumers’ access to the open Internet. For example, some parties have suggested that existing antitrust laws would address discriminatory conduct of an anticompetitive nature. See ICLE Comments at 39; Citizens Against Government Waste Comments at 2; Hurwitz Comments at 7-8; see also infra Section III.G. We also note that certain “no blocking” obligations continue to apply to the use of Upper 700 MHz C Block licenses. See 47 C.F.R. § 27.16. See, e.g., Comcast Comments at 15 (“As reflected in the existing disclosures of all major broadband providers, including Comcast, there is widespread support and a public commitment from broadband providers to maintain open Internet policies and practices.”); Letter from Forty-Three Municipal Broadband Internet Providers to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 at 1 (filed Feb. 10, 2015) (“Accordingly, we follow the Commission’s 2005 Open Internet principles and do not block, throttle, or discriminate among types of Internet traffic; nor do we charge Internet edge providers for priority delivery on our networks. We also comply with the requirement in the Commission’s 2010 transparency rule for a unitary set of disclosures covering our service characteristics and network management practices.”); see also AT&T Statement on the U.S. Court of Appeals D.C. Circuit Open Internet Decision, AT&T Public Policy Blog (Jan. 14, 2014) http://www.attpublicpolicy.com/fcc/att-statement-on-the-u-s-court-of-appeals-d-c-circuit-open-internet-decision/(“As the FCC assesses the impact of today’s court decision, AT&T can assure all of our customers and stakeholders that our commitment to protect and maintain an open Internet will not change.”); Time Warner Cable Issues Statement on Today’s Decision by the U.S. Court of Appeals for the D.C. Circuit, Business Wire (Jan. 14, 2014), http://www.businesswire.com/news/home/20140114006474/en/Time-Warner-Cable-Issues-Statement-Today%E2%80%99s-Decision#.VOZuW4vF98H (“Time Warner Cable has been committed to providing its customers the best service possible, including unfettered access to the web content and services of their choice. This commitment, which long precedes the FCC rules, will not be affected by today’s court decision.”). Internet Policy Statement, 20 FCC Rcd at 14987-88, para. 4. See also, e.g., Connect America Fund et al., WC Docket No. 10-90 et al., Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 17663, 17903, para. 734 (2011) (USF/ICC Transformation Order), aff’d sub nom. In re FCC 11-161, 753F.3d 1015 (10th Cir. 2014) (reiterating that call blocking is impermissible in intercarrier compensation disputes); Establishing Just and Reasonable Rates for Local Exchange Carriers; Call Blocking by Carriers, WC Docket No. 07-135, Declaratory Ruling and Order, 22 FCC Rcd 11629, 11629, 31, paras. 1, 6 (Wireline Comp. Bur. 2007) (2007 Declaratory Ruling) (reiterating that call blocking is impermissible as a self-help measure to address intercarrier compensation dispute); Blocking Interstate Traffic in Iowa, Memorandum Opinion and Order, 2 FCC Rcd 2692 (1987) (denying application for review of Bureau order, which required petitioners to interconnect their facilities with those of an interexchange carrier in order to permit the completion of interstate calls over certain facilities). See, e.g., Carterfone, 13 FCC 2d at 424; Computer II, 77 FCC 2d at 388. 2010 Open Internet Order, 25 FCC Rcd at 17943, para. 66 (“We make clear that the no-blocking rule bars broadband providers from impairing or degrading particular content, applications, services, or non-harmful devices.”). Consumers and small entities generally expressed concern that these arrangements are harmful and should be prevented by the Commission. See, e.g., Anita Barfield Comments at 1 (“Net neutrality is important to me because I do not want my ISP to be able to prioritize the content I see, [and] I am concerned about having my access to information blocked and other content prioritized.”); David Galzerano Comments at 1 (“In ending net neutrality and allowing companies to purchase priority rights when it comes to data transmission, you would not only be eliminating choice and freedom of information for all - which was the pioneering spirit behind the founding of the Internet - you would be relegating ALL data from Independent and rural operators to a second-class state, as these operators would NEVER be able to purchase priority status for any of their data.”); Derek Bass Comments at 1 (“Our long-term economy depends on the free, open access to the internet that we currently have. Allowing privileged corporations fast-track priority will impede innovation and stifle the free exchange of ideas needed to sustain our economy”); Doug Cottrill Comments at 1 (“Companies that are willing and able to pay more should NOT be able to get higher priority for their content, nor should information be slowed down or blocked because of different pricing structures controlled by telecommunications companies.”). See infra Section III.C.1. 2014 Open Internet NPRM, 29 FCC Rcd at 5593, para. 89; 2010 Open Internet Order, 25 FCC Rcd at 17941-42, para. 62. See supra Section III.B. See also Broadband Internet Technical Advisory Group, Port Blocking at 2 (2013) http://www.bitag.org/documents/Port-Blocking.pdf, (“Because Port blocking can affect how particular Internet applications function, its use has the potential to be anti-competitive, discriminatory, otherwise motivated by non-technical factors, or construed as such.”); Body of European Regulators for Electronic Communications, A View of Traffic Management and Other Practices Resulting in Restrictions to the Open Internet in Europe at 8-9 (May 29, 2012), http://ec.europa.eu/digital-agenda/sites/digital-agenda/files/Traffic%20Management%20Investigation%20BEREC_2.pdf (“Among the restrictions related to specific types of traffic, the most frequently reported restrictions are the blocking and/or throttling of peer-to-peer (P2P) traffic, on both fixed and mobile networks, and the blocking of Voice over IP (VoIP) traffic, mostly on mobile networks.”).  But see WISPA Comments at 22 (“[T]here is no evidence that small businesses are blocking lawful content, applications, services or non-harmful devices, or that their existing network management practices are unreasonable.  Small businesses have no business incentive to block content; their main objective is to provide rural Americans with full access to all lawful broadband content and at reasonable and very competitive costs.”). 2014 Open Internet NPRM, 29 FCC Rcd at 5593, para. 89. A broad cross-section of broadband providers, edge providers, public interest organizations, and individuals support this approach. See, e.g., COMPTEL Reply at 4 (stating that “the record reflects broad agreement that the Commission should adopt a no-blocking rule”); IFTA Comments at 10 (supporting the re-adoption of a stand-alone no-blocking rule); Engine Advocacy Comments at 2 (supporting efforts to adopt “strict no-blocking and non-discrimination rules”); OTI Comments at 11 (noting that as the broadband market becomes more consolidated, “[t]here is therefore an even greater need for explicit protections against the blocking of lawful content online”); Cogent Comments at 13 (“an ISP blocking access to lawful Internet content is the antithesis of an open Internet”); Cox Comments at 5; MMTC Comments at 11; Letter from Barbara van Schewick to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-191, 14-28, Attach. at 7 (filed Sept. 19, 2014) (van Schewick Sept. 19, 2014 Ex Parte Letter) (stating a rule to protect against blocking “is part of all network neutrality proposals; this is the one rule on which all network neutrality proponents agree”). But see TechFreedom Comments at 15-16 (“If [broadband providers] are truly nefarious . . . then public outcry by the affected subscribers should likely be sufficient to convince the ISP to change its practices.”). See, e.g., CenturyLink, High Speed Internet Service Management, http://www.centurylink.com/Pages/AboutUs/Legal/InternetServiceManagement/ (last visited Jan. 29, 2015) (“CenturyLink does not block, prioritize, or degrade any Internet sourced or destined traffic based on application, source, destination, protocol, or port unless it does so in connection with a security practice described in the security policy section below”); RCN, FCC Network Management Disclosure, http://www.rcn.com/images/pdfs/rcn-net-management-disclosure.pdf (last visited Jan. 29, 2015) (“We do not block any lawful content, applications, services, or your use of non-harmful devices.”); Verizon, Terms and Conditions Network Management Guide, https://www.verizon.com/about/terms/networkmanagementguide/ (last visited Jan. 29, 2015) (“Verizon Online does not affirmatively manage congestion on the network through mechanisms such as real-time throttling, blocking, or dropping of specific end user traffic.”). 2010 Open Internet Order, 25 FCC Rcd at 17942, para. 64. See id. Similar to the 2010 no-blocking rule, this obligation does not impose any independent legal obligation on broadband providers to be the arbiter of what is lawful. Id. at n.201. Id. at 17942-43, para. 65 & n.202 (noting that a “broadband provider may require that devices conform to widely accepted and publicly-available standards applicable to its services” and that this rule is not intended to alter existing rules giving end users the right to attach devices to an MVPD system). Id. at 17943-44, para. 67; see also id. at 17919-20, paras. 25, 26. We note that during oral argument in the Verizon case, Verizon told the court that “in paragraph 64 of the Order the Agency also sets forth the no charging of edge providers rule as a corollary to the no blocking rule, and that’s a large part of what is causing us our harm here.” In response, Judge Silberman stated, “if you were allowed to charge, which are you assuming you're allowed to charge because of the anti-common carrier point of view, if somebody refused to pay then just like in the dispute between C[B]S and Warner, Time Warner . . . you could refuse to carry.” Verizon’s counsel responded: “[r]ight.” Verizon Oral Arg. Tr. at 28. 2014 Open Internet NPRM, 29 FCC Rcd at 5596-98, paras. 97-104. See, e.g., Mozilla Comments at 15 (warning that defining a no-blocking rule in terms of establishing a minimum level of service is not likely “to prove effective and workable in practice”); USTelecom Comments at 50 (“the Commission should not impose a minimum level of service for free obligation”); Letter from Catherine J.K. Sandoval, Commissioner, California Public Utilities Commission, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, 10-127, Attach. at 14 (filed Oct. 14, 2014) (Sandoval Ex Parte Letter) (“[A]ny of the minimum level of access standards the FCC proposes would be insufficient to support the needs of a diversity of Internet users including Critical Infrastructure.”). See, e.g., Microsoft Comments at 19 (“[A] clear no blocking rule—rather than some vague, loosely defined standard for measuring a prescribed ‘minimum level of service’—is critical to maintaining a vibrant and open Internet.”); National Public Radio, Inc. (NPR) Comments at 9 (“Given the rapid evolution of technology, defining a ‘minimum level of service’ by regulatory fiat would likely become an ongoing undertaking rife with disputes, invariably resulting in repeated judicial intervention.”). Information Technology & Innovation Foundation (ITIF) Comments at 22 (stating that the Commission “does not need to define and enforce a ‘minimum level of service’” because it “would be a difficult exercise and may well stifle beneficial practices” such as the use of “latency-insensitive ‘scavenger class’ of traffic”); IL and NY Comments at 9 (“A ‘minimum level of access’ necessarily implies that a higher or preferential level of service will become available, creating the very two-tiers of service that the Proposed Rules are intended to prevent.”). 2014 Open Internet NPRM, 29 FCC Rcd at 5597, para. 101 (asking if the Commission should “define the minimum level of access from the perspective of end users, edge providers, or both”). See infra Section III.C.1.b; Access Comments at 6 (drawing a distinction between outright blocking and slowing or throttling end-user access to certain content, services, or applications). 2010 Open Internet Order, 25 FCC Rcd at 17956-57, 17959-60, paras. 94-95, 99. 2014 Open Internet NPRM, 29 FCC Rcd at 5594, para. 91. Id. at 5598, para. 105. See supra Section III.B.3. See American Association of Law Libraries (AALL) Comments at 3; ADT Comments at 9; NMR Comments at 30; Voices for Internet Freedom Comments at 6; EFF Comments at 24 (“Mobile device owners should enjoy the same levels of control and choice for networked applications on their mobile devices as they do on their laptops and desktops.”); Higher Education and Libraries Comments at 18-19; OTI Comments at 62; Sandvine Comments at 9 (arguing that reasonable network management permits mobile operators to treat traffic differently than fixed networks do); i2Coalition Comments at 41; TIA Comments at 20-21; but see AT&T Comments at 19; Cisco Comments at 22; CTIA Comments at 17 (citing capacity constraints); Mobile Future Reply at 2-3; Verizon Comments at 43-44; Sprint Reply at 23; T-Mobile Comments at 11. In evaluating the reasonable network management exception to the no-blocking rule, the Commission will drawing upon its experience with the no-blocking rule in the 700 MHz C Block. See 700 MHz Second Report and Order, 22 FCC Rcd at 15370-72, paras. 222-26; see also Verizon Wireless to Pay $1.25 Million to Settle Investigation into Blocking of Consumers’ Access to Certain Mobile Broadband Applications, News Release, July 31, 2012, http://www.fcc.gov/document/verizon-wireless-pay-125-million-settle-investigation (regarding tethering applications for C Block network customers). AT&T Reply at 34-35; Sprint Reply at 22-23; T-Mobile Comments at 11, 13 (arguing that “[w]ireless broadband providers need flexibility to address network security and reliability risks, as well as other threats to public safety and the consumer experience”); Verizon Comments at 43-44;CTIA Comments at 17-18. See, e.g., Verizon Comments at 4; Interisle Consulting Group Comments 27 (“[I]f blocking were banned, then spammers would be able to dramatically increase the volume of traffic they send. Other security problems could also be worsened.”). See, e.g., Verizon Comments at 44 (“The Open Internet Order appropriately recognized that the download and use of a mobile application presents unique network management issues.”). See CTIA Comments at 27-28. See infra Section III.D.4. 2014 Open Internet NPRM, 29 FCC Rcd at 5593, para. 89 (“So long as broadband providers do not degrade lawful content or service to below a minimum level of access, they would not run afoul of the proposed rule.”). See, e.g., Letter from the Honorable Henry A. Waxman to Tom Wheeler, Chairman, FCC, GN Docket No. 14-28, (filed Oct. 3, 2014) (Waxman Oct. 3, 2014 Ex Parte Letter) (proposing separate no blocking and no-throttling rules); WGAW Comments at 22 (noting that throttling may in some cases constitute a “more subtle practice[] that achieve[s] the goal of blocking”); Mozilla Reply at 3 (“There is general agreement that these rules should include a rule that prevents access network operators from blocking ordinary, lawful traffic, and some form of a nondiscrimination rule on limiting, throttling, or prioritizing traffic.”). See, e.g., Letter from Barbara van Schewick, Professor of Law and (by courtesy) Electrical Engineering, Stanford Law School, et al., to Marlene Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 Attach. at 4 (filed Feb. 18, 2015) (van Schewick Feb. 18, 2015 Ex Parte Letter) (“[T]he no-throttling rule should explicitly ban discrimination against applications AND classes of applications (so-called ‘application-specific’ discrimination).”). See infra Section III.D.3; see also Waxman Oct. 3, 2014 Ex Parte Letter at 10, n.32 (“The term ‘throttling’ is not limited to the technique of slowing down or delaying Internet packets, but more broadly refers to methods that can be used to differentiate, or ‘shape’ Internet traffic.”). See supra Section III.C.1.a. See supra para. REF _Ref410885120 \r \h \* MERGEFORMAT 113. Id.; see also 2010 Open Internet Order, 25 FCC Rcd at 17943-44, para. 67; see also id. at 17919-20, paras. 25, 26. See, e.g., Cogent Comments at 17 (“There are numerous practices a last-mile broadband ISP can undertake short of outright blocking an edge provider that can degrade an end user’s experience with—and thus likelihood to seek out in the future—services offered by a particular edge provider.”); NARUC Comments at 6 (“[L]imiting, or otherwise degrading broadband access for users . . . is an unfair practice that ‘may reduce the Internet’s value to consumers.’”); see also supra Section III.B. See, e.g., T-Mobile, Simple Choice Plan, http://www.t-mobile.com/cell-phone-plans/individual.html (last visited Feb. 5, 2015) (offering 1GB, 3GB, and 5GB plans with lower data speeds after the threshold is reached). See infra Sections III.C.2; III.D.4. Vimeo Comments at 11 (citing a 2011 study noting that “A rebuffering rate of 1% (i.e., a video pauses for 1 out of every 100 seconds) results in 5% less video watched overall. There is a ‘2-second rule’ for video watching: People are willing to wait 2 seconds for a video to load, but the rate of abandonment increases significantly thereafter if the video doesn’t load. Viewer patience is influenced by the expectation of speed from the viewing platform and the perceived value of the content. Bad viewing experiences lead not just to abandonment of a particular video, but also to a lower rate of watching other videos.”); Golden Frog Comments at 5-6 (discussing allegations of anti-competitive behavior by broadband service providers, including those involving blocking and throttling). See infra Section III.D.3. While not within the definition of “throttling” for purposes of our no-throttling rule, the slowing of subscribers’ content on an application agnostic basis, including as an element of subscribers’ purchased service plans, will be evaluated under the transparency rule and the no-unreasonable interference/disadvantage standard. See 2014 Open Internet NPRM, 29 FCC Rcd at 5609, para. 138. We consider arrangements of this kind to be paid prioritization, even when there is no exchange of payment or other consideration between the broadband Internet access service provider and the affiliated entity. Other forms of traffic prioritization, including practices that serve a public safety purpose, may be acceptable under our rules as reasonable network management. See infra Section III.D.3. See, e.g., Internet Association Comments at 16; Y Combinator Comments at 3; Reddit Comments at 11; Ben Holt Comments at 1; Consumers Union Comments at 5; AALL Comments at 3; AAPD Comments at 4. See, e.g., Higher Education and Libraries Comments at 12 (“Many institutions that serve the public interest, such as libraries, colleges and universities, may not be able to afford to pay extra fees simply for the transmission of their content and could find their Internet traffic relegated to chokepoints.”); Rural Broadband Policy Group Comments at 9 (“Allowing Internet service providers to sell fast lanes to those who can afford them would permit the redlining of rural towns and customers who cannot pay for the fast lanes.”); Vimeo Comments at 9-10 (stating that “[i]f broadband providers can make marginal revenue from priority access fees, they will have little incentive to maintain a high-quality ‘standard lane’ experience for edge providers unwilling or unable to pay”); Public Knowledge Comments at 37 (“Because the fast lane will produce premium revenue for ISPs, ISPs have every incentive to construct a slow lane that performs poorly enough to justify extra payments from those edge services who can afford to do so.”); Engine Advocacy Reply at 5 (“[P]aid prioritization schemes, once implemented, will result in Internet fast lanes for well-heeled incumbents, relegating startups and the economic growth they create to the slow lane.”). See Mozilla Comments at 20 (“Prioritization is inherently a zero-sum practice, and inherently creates fast and slow lanes and prevents a level playing field.”); Mozilla Reply at 15; Sandvine Comments at 9 (“At a moment in time, there is a fixed amount of bandwidth available to all applications, content, etc. on a given network. If one application has paid for more of that bandwidth (and this is how the priority is achieved) then there is less ‘best efforts’ bandwidth remaining for all other applications and content.”). But see ADTRAN Reply at ii, 6, 16 (arguing that the zero-sum game theory is incorrect because it ignores the fact that broadband providers’ capacity is not static); Letter from Justin (Gus) Hurwitz, Assistant Professor, University of Nebraska College of Law, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Nov. 3, 2014) (asserting that prioritization is not “zero sum”). See, e.g., Ad Hoc Comments at 19-20; Mozilla Reply at 16 (arguing that paid prioritization creates perverse incentives because “underinvestment in infrastructure is more appealing if the result is increased sales of a prioritized offering balancing out any loss in direct subscribers”); CDT Comments at 6 (“By degrading some traffic or prioritizing other traffic, broadband providers could effectively play favorites in the online marketplace, distorting competition among online content and applications.”); Letter from Edyael Casaperalta, Rural Broadband Policy Group Coordinator, National Rural Assembly, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 and 10-127, at 3 (filed Oct. 20, 2014) (expressing concern that permitting paid prioritization and a “fast lane” will place rural companies at a competitive disadvantage); Letter from Austin C. Schlick, Director, Communications Law, Google, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 (filed Nov. 5, 2014) (asserting that paid prioritization “could create incentives for providers to maintain scarcity and congestion on their networks, in order to sell services that avoid these artificial conditions”); Vonage Reply at 5-6. See, e.g., CCIA Reply at 17-18 (asserting that paid prioritization will harm consumers because these fees will be passed through to consumers); COMPTEL Comments at 10; Higher Education and Libraries Comments at 12 (asserting that “it is likely that those who are able to pay for preferential treatment will pass along their costs to their consumers and/or subscribers. In some cases, libraries and other public institutions may be among these subscribers who would then be forced to pay more for services they may broker on behalf of their patrons”); Internet Association Comments at 17; AOL Comments at 6-7; Free Press Comments at 25; Vermont Reply at 8; Letter from Erin P. Fitzgerald, Rural Wireless Association to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Nov. 14, 2014) (noting that “widespread paid prioritization arrangements could further adversely impact competition and harm consumers”). But see Hance Haney Comments at 9 (“Scholars have observed that as states have reduced in-state long-distance access fees, ‘the market induces carriers to pass-through most of the reduction in access rates.’ There appears to be no reason to believe that a similar dynamic wouldn’t occur in the context of a two-sided broadband market.”). See, e.g., Internet Association Comments at 17; Engine Advocacy Comments at 5 (explaining that if a startup’s site does not load as quickly or its application is not as reliable, it will be harmed because “[u]sers will switch to competitors whose services receive better treatment, [u]sers will spend less money on e-commerce sites or view fewer pages on sites that garner advertising revenue through the number of page-views, and chill initial capital investment”); Linear Air Reply at 3-4; National Venture Capital Association Comments at 2. See, e.g., Sandoval Ex Parte Letter at 2 (asserting that paid prioritization undermines public safety and universal service, and increases barriers to adopting Internet-based applications such as Internet-enabled demand response communications electric and gas utilities use to prevent power blackouts, forestall the need to build fossil-fueled power plants, promote environmental sustainability, and manage energy resources). See, e.g., Illinois and NY Comments at 6 (asserting that “[i]f broadband providers can discriminate among content, they can effectively pick winners and losers, interfering with the public’s ability to freely educate itself about political, cultural, and social issues – education that is critical to our democracy”); Ad Hoc Comments at 20 (asserting that paid prioritization would distort consumers’ choices among content and edge providers); Church World Service et al. Reply at 1; Independent Filmmaker Organizations Reply at 3-6; City of Los Angeles Comments at 5. Vimeo Comments at 12 (capitalization omitted). Engine Advocacy Comments at 7. See, e.g., CDT Comments at 18; Reddit Comments at 7; Y Combinator Comments at 2-3; Tumblr Reply at 8 (“[E]ven if a ‘slow’ lane remains reasonably fast, marginal differences in upload and streaming speeds moving forward would deter people from using slower services, and severely punish companies that cannot pay for prime access.”); Vimeo Comments at 11 (“[M]erely having a ‘fast-lane’ for paid traffic will alter consumers’ perception of the standard for speed, [because w]hen consumers become accustomed to receiving video at a certain delivery rate, that rate will become the de facto standard and everything else will be perceived as substandard. Consumers are unlikely to know (or care) about why a particular video takes two seconds to load or is constantly rebuffering, and will abandon those edge providers that they perceive as providing a slower and thus less enjoyable experience.”); Kickstarter Comments at 3-4 (“Users will not accept slow load times and choppy videos.”). The access provided by the core network is an intermediate input into the myriad of final products produced by edge providers. While it is granted that for a firm selling final goods, price discrimination can be both profitable and enhance welfare, it has been argued that the reverse is also true when intermediate goods are considered. See Michael L. Katz, Price Discrimination and Monopolistic Competition , 52 Econometrica 1453, 1453-71 (1984); Michael L. Katz, Non-Uniform Pricing, Output and Welfare under Monopoly, 50 Rev. of Economic Studies 37, 37-56 (1983); Michael L. Katz, The Welfare Effects of Third-Degree Price Discrimination in Intermediate Good Markets, 77 American Economic Rev. 154, 154-167 (1987); and Yoshihiro Yoshida, Third Degree Price Discrimination in Input Markets: Output and Welfare, 90 American Economic Rev. 240, 240-246 (2000). Gerald W. Brock, Telephone Pricing to Promote Universal Service and Economic Freedom, OPP Working Paper Series No. 18 (1986); Jay M. Atkinson and Christopher C. Barnekov, A Competitively Neutral Approach to Network Interconnection, OPP Working Paper Series, No. 34 (2000). See supra Section III.B.2.a. Verizon, 740 F.3d at 645-46 (holding that the Commission has adequately supported and explained its conclusions that absent open Internet protections, broadband providers “represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment”). Verizon Oral Arg. Tr. at 31 (“I’m authorized to state by my client [Verizon] today that but for these rules we would be exploring those commercial arrangements, but this order prohibits those, and in fact would shrink the types of services that will be available on the Internet.”). See, e.g., AT&T Comments at 30-31; Verizon Comments at 37; Sandvine Comments at 3 (“[T]o the best of our knowledge, none of the innovative service plans that Sandvine has helped implement across our customer base have involved payments between operators and edge providers for traffic priority—so-called Pay for Priority.”); Letter from Randal S. Milch, Executive Vice President, Public Policy and General Counsel, Verizon, to Chairman Patrick J. Leahy, Committee on the Judiciary, U.S. Senate (Oct. 29, 2014) (Verizon Letter to Leahy). Further, these broadband providers argue that they have no incentive to engage in paid prioritization arrangements, as their own business plans depend upon an open Internet. See, e.g., Verizon Comments at 5-10; Comcast Comments at 5-6; AT&T Comments at 21; Cox Comments at i; TWC Comments at 2; Charter Comments at 9; Cequel Reply at 3 (explaining that it “could not block an edge-based content provider without diminishing the value of its Internet service and losing customers to the formidable competitors it faces”). For example, we note that in Verizon’s letter to Chairman Leahy, the company states “[a]s we have said before, and affirm again here, Verizon has no plans to engage in paid prioritization of Internet traffic.” Verizon Letter to Leahy at 1. However, in contrast to this statement, at oral argument in the Verizon case, counsel for Verizon explained that the company would pursue such arrangements if not for the 2010 Open Internet rules which prevented them. See supra note NOTEREF _Ref413758670 \h 300. CDT Comments at 5. See, e.g., CDT Comments at 5; Etsy Comments at 8 (“[Under the proposed rules] many new startups that would have been founded will die in their infancy or never be created. How do you account for all the innovations that would never come to market because of these new rules?”); Reddit Comments at 9-10 (“If the Chairman’s proposal had been law in 2005, reddit might not have gotten off the ground.”); CodeCombat Comments at 5-7; Heyzap Comments at 2-3. See, e.g., ACLU Comments at 7 (“Were paid prioritization or other differential treatment permitted, edge providers with a first mover advantage would be able to entrench their market position on the edge, and then to pass along any overcharge imposed by broadband providers to consumers in their fees. The big content, application or device providers would be able to afford greater, faster or better access to broadband consumers while newer competitors would be put at an ever-growing disadvantage.”). Some commenters argue that consumer disclosures about such practices are sufficient. See, e.g., Bright House Comments at 29. However, the average consumer does not have the time or specialized knowledge to sort through the implications, and regardless, in many areas of the country, consumers simply do not have multiple, equivalent choices. See Illinois and NY Comments at 11-12. Further, as discussed above, switching costs can be a substantial deterrent. See supra Section III.B.2. ADTRAN Reply at 18. CDT Comments at 5; see also Intel Reply at 10 (“Absent persuasive evidence of anti-competitive conduct, companies that are disadvantaged by such innovation deserve no special assistance or protection. To do otherwise would frustrate competition and innovation, harming American consumers and business.”). Letter from Scott Blake Harris, Counsel to Akamai, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Feb. 9, 2015) (requesting that “the final Open Internet Order should expressly state that CDN services do not constitute ‘prioritization’ as that term has been used in this proceeding”). For example, AOL proposes to permit individual negotiations for priority services, but would prohibit them where the broadband provider is affiliated with an upstream edge provider; has market power; and also charges end users (i.e., no double-charging). AOL Comments at 5-8. AT&T proposes, as one option for addressing paid prioritization, the imposition of “additional transparency, no-blocking, and nondiscrimination rules on fixed broadband Internet access providers that do not agree voluntarily to refrain from entering into paid prioritization arrangements.” AT&T Comments at 37-38; see also American Cable Association (ACA) Reply at 18 (stating that AT&T’s proposal “appears to offer both adequate protections to edge providers and end users, while giving broadband ISPs the needed flexibility to manage their networks and create innovative service offerings”). Comcast proposes a rebuttable presumption against “paid prioritization” arrangements that would entirely preclude “exclusive arrangements and arrangements that prioritize a broadband provider’s own affiliated Internet content vis-à-vis unaffiliated content” and place a heavy burden on the broadband provider to justify any other “paid prioritization” arrangement. Comcast Comments at 24. See, e.g., eBay Comments at 4-5; CCIA Comments 31-32; CCIA Reply at 15-16 (expressing concern that the commercially reasonable standard will necessarily increase the costs of seeking relief from unlawful conduct, and will thus contravene the Commission’s stated goal of providing meaningful enforcement measures to small businesses); Kickstarter Comments at 3 (“We would have no real recourse if we were offered an unfair price. Using our small legal team or hiring outside counsel to prove that an offered deal was ‘commercially unreasonable’ . . . would take far too long and cost far too much to be a feasible option.”); CCIA Reply at 13-14 (“Putting the onus on edge providers, most of whom lack regulatory and legal experience anywhere comparable to that of [broadband providers], to show anticompetitive conduct through individual administrative proceedings will almost certainly lead to a situation where edge providers (particularly startups and smaller companies) cannot avail themselves of the protections provided in this rulemaking.”); Netflix Comments at 10 (“Weighing the cost of an administrative proceeding and the uncertainty of success, many edge providers likely will choose to forego engagement with the Commission.”); Y Combinator Comments at 3 (“No startup has the funds and lawyers and economists to take on billion-dollar ISPs in an FCC action based on the vague legal standards in the proposal. Indeed, the startup ecosystem needs a bright-line, per se rule against discrimination.”); Free Press Comments at 136 (“This regime would shift the burden to prove such practices commercially unreasonable onto Internet users and edge providers who can least afford to bear that burden.”); MobileWorks Reply at 6. 47 C.F.R. § 1.3. See WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969); Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990). See, e.g., 47 C.F.R. § 79.1(f) (“Procedures for exemptions [from closed captioning requirements] based on economically burdensome standard.”). For instance, several commenters argue that paid prioritization arrangements could improve the provision of telemedicine services. See, e.g., California Telehealth Network (CTN) Reply at 7, 9 (explaining that as full motion synchronous video conferencing becomes more necessary for digital diagnosis and treatment, as required by many telehealth services, the total bandwidth consumption in the Internet ecosystem for telehealth will grow, encouraging investment and deployment); AALL Comments at 2 (“Health sciences libraries also provide Internet access to images that support telemedicine, particularly in remote areas where Internet service can be disproportional or uneven and to reach the underserved.”); MMTC Comments at 11 (arguing that the Commission should employ a “rebuttable presumption against paid prioritization . . . while ensuring that such presumption can be overcome by business models that sufficiently protect consumers and have the potential to benefit consumer welfare,” such as telemedicine applications). We note that telemedicine services might alternatively be structured as “non-BIAS data services,” which are beyond the reach of the open Internet rules. See infra Section III.D.3. 2014 Open Internet NPRM, 29 FCC Rcd at 5602, para. 116. The Commission also tentatively concluded that it should operate separately from the proposed no-blocking rule, i.e., conduct acceptable under the no-blocking rule would still be subject to independent examination under the “commercially reasonable” standard, and sought comment on this approach. Id. at 5602, para. 117. Id. at 5603, para. 119. Id. at 5604, para. 121. Id. Id. at 5604-05, paras. 122-23. Id. at 5583-84, para. 62. Specifically, the Commission sought comment on whether, under the commercially reasonable rule, mobile networks should be subject to the same totality-of-the circumstances test as fixed broadband, and whether the Commission should apply the commercially reasonable legal standard to mobile broadband. Id. at 5609, para. 140. See supra Section III.B.2. See, e.g., Higher Education and Libraries Comments at 23-24 (proposing a standard more directly related to the “unique and open character of the Internet,” what they termed “Internet reasonable”); CDT Comments at 19; CDT Reply at 3. As in the no throttling rule, we include classes of content, applications, services, or devices. 47 U.S.C. § 230(a)(3). 2010 Open Internet Order, 25 FCC Rcd at 17911, para. 14; see also Higher Education and Libraries Comments at 23 (stating that “the Internet itself is fundamentally an ecosystem that supports a myriad of personal, institutional, community, and commercial relationships and interests,” and, as with any other ecosystem, “if the conditions that foster those relationships and interests are negatively impacted, the system as a whole is subject to collapse”). See, e.g., Akamai Comments at 11 (“[T]he Commission should take only those actions that are necessary and narrowly tailored to promote competition, innovation, and the growth of broadband networks that inure to benefit the public.”). See 47 U.S.C. §§ 201, 202, 208; see also Section IV; AT&T Corp. v. Business Telecom, Inc.; Sprint Comms. Company, L.P. v. Business Telecom, Inc., EB-01-MD-001, EB-01-MD-002, Memorandum Opinion and Order, 16 FCC Rcd 12312 (2001) (granting in part a complaint filed under section 208 that a telecommunications service provider’s access rates were and are unjust and unreasonable under section 201(b) of the Act). 2014 Open Internet NPRM, 29 FCC Rcd at 5608, para. 136; CDT and ALA Reply at 2. This is in contrast to the inflexibility that the Verizon court found was a flaw in the 2010 unreasonable discrimination standard. See supra note NOTEREF _Ref410909989 \h \* MERGEFORMAT 96. We also note that this approach addresses concerns in the record that “[a] ‘general conduct rule,’ applied on a case-by-case basis with the only touchstone being whether a given practice ‘harms’ consumers or edge providers, may lead to years of expensive litigation to determine the meaning of ‘harm’ (for those who can afford to engage in it).” Letter from Corynne McSherry, Intellectual Property Director, EFF, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Feb. 19, 2015) (EFF Feb. 19, 2015 Ex Parte Letter). Understanding that such an unfocused approach could harm the results of our rule, we “spell out, in advance, the contours and limits of [the] rule,” as was suggested in the record. See, e.g., id. See, e.g., Akamai Comments at 10; CALinnovates Reply at 19 (stating that “regulatory clarity may significantly affect the calculus of current and potential investors”); Higher Education and Libraries Reply at 11-14 (asserting that a clearly articulated standard focused on preserving the existing Internet would set expectations and provide guidance to the market, but would avoid hard and fast rules that might be too rigid for a rapidly changing broadband ecosystem); CDT and ALA Reply at 2. CDT and ALA Reply at 2. We also note that this Order permits parties to seek advisory opinions regarding application of the Commission’s open Internet rules. We view these processes as complementary methods by which parties can seek guidance as to how the open Internet rules apply to particular conduct. See infra Section III.E. 2010 Open Internet Order, 25 FCC Rcd at 17944-46, paras. 68-74. Id. at 17944, para. 71; see also EFF Feb. 19, 2015 Ex Parte Letter at 2 (suggesting that the Commission should take into consideration “whether the practice preserves user choice”). See supra Section III.A; see also, e.g., Verizon Comments at 16-17; Syntonic Reply at 5-6; van Schewick Feb. 18, 2015 Ex Parte Letter, Attach. at 14 (“Letting users, not network providers, choose which applications will be successful is an important part of the mechanism that produces innovation under uncertainty. At the same time, letting users choose how they want to use the network enables them to use the Internet in a way that creates more value for them (and for society) than if network providers made this choice for them.”). See Netflix Comments at 5 (“Through an open Internet, the consumer, not the ISP or the edge provider, picks the winners and the losers.”); Vonage Comments at 13 (“Allowing ISPs to select winners and losers will certainly chill investment and innovation in startups because they will lack the ability to develop a following among users without getting past the ISP gatekeeper.”); AT&T Comments at 27-30 (distinguishing beneficial user-directed prioritization agreements from harmful paid-prioritization agreements initiated by service providers); Ad Hoc Comments at 22-23. Notably, under section 230(b) of the Communications Act, increased user control is an express objective of modern telecommunications policy. 47 U.S.C. § 230(b)(3) (directing policymakers “to encourage the development of technologies which maximize user control over what information is received by individuals . . . who use the Internet and other interactive computer services”). 2010 Open Internet Order, 25 FCC Rcd at 17944-45, para 71. See supra Section III.B.2.a; 2010 Open Internet Order, 25 FCC Rcd at 17916, para. 22. The Commission adopted a similar restriction to address harms raised by the Comcast-NBCU transaction. See Comcast/NBCU Merger Order, 26 FCC Rcd at 4275, para. 94 (“[N]either Comcast nor Comcast-NBCU shall prioritize affiliated Internet content over unaffiliated Internet content.”). See, e.g., Verizon Comments at 35; Free State Reply at 3 (“The welfare of consumers should be the focus and deciding criterion for Commission broadband policy.”); Free State Reply at 12. Verizon, 740 F.3d at 659. See, e.g., EFF Feb. 19, 2015 Ex Parte Letter at 2 (suggesting that the Commission should take into consideration “whether and how the practice impacts the cost of …innovation”); Letter from Vimeo, LLC, et al. to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Feb. 19, 2014) (asking that the general conduct rule take into consideration whether a challenged practice “keeps application development and innovation costs low”); see also Akamai Reply at 2 (“Innovative traffic platforms and networks have thus been key in facilitating the virtuous circle through which increased broadband Internet usage drives increased investment by service and content providers, which in turn drives further usage.”); Nokia Reply at 5 (“It is important that the Commission recognize that operators and infrastructure providers are a critical element of this virtuous cycle of innovation.”); Nokia Reply at 8 (“Value creation in all segments of the broadband marketplace is a critical component of maintaining the level of innovation seen in the last decade.”). 47 U.S.C.§ 230(a)(3); see also Reno v. ACLU, 521 U.S. 844, 853 (1997) (“No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web.”) (internal citation omitted). See, e.g., AAJC Comments at 2; ACLU Comments at 2 (“As information technology advances apace, the meaningful exercise of our constitutional rights—including the freedoms of speech, assembly, press and the right to petition government—has become literally dependent on broadband Internet access.”); American Public Media Group Comments at 3; CDT Comments at 5; OTI Comments at 3; see also EFF Feb. 19, 2015 Ex Parte Letter at 2 (suggesting that the Commission should take into consideration “whether and how the practice impacts the cost of free speech”). We also note that the no-unreasonable interference/disadvantage standard does not unconstitutionally burden any of the First Amendment rights held by broadband providers because broadband providers are conduits, not speakers, with respect to broadband Internet access services. See infra Section VI.A. A network practice is application-agnostic if it does not differentiate in treatment of traffic, or if it differentiates in treatment of traffic without reference to the content, application, or device. A practice is application-specific if it is not application-agnostic. Application-specific network practices include, for example, those applied to traffic that has a particular source or destination, that is generated by a particular application or by an application that belongs to a particular class of applications, that uses a particular application- or transport- layer protocol, or that has particular characteristics (e.g., the size, sequencing, and/or timing of packets). See 2010 Open Internet Order, 25 FCC Rcd at 17938, para. 56 (application-specific); id. at 17945, para. 73 (application-agnostic); BITAG Congestion Report at 19 (discussing which traffic is subject to congestion management); see also, e.g., van Schewick Sept. 19, 2014 Ex Parte Letter, Attach. at 24; Mozilla Reply at 22; i2 Coalition Comments at 43; OTI Comments at iv. We note, however, that there do exist circumstances where application-agnostic practices raise competitive concerns, and as such may violate our standard to protect the open Internet. See infra para. REF _Ref410885451 \r \h \* MERGEFORMAT 153. See 2010 Open Internet Order, 25 FCC Rcd at 17945-46, para. 73; van Schewick Sept. 19, 2014 Ex Parte Letter; Van Schewick April 17 Ex Parte Letter, Attach. at 3-4; OTI Comments at iv (asserting that the Commission should allow application-agnostic discrimination); see also CDT Comments at 7; Common Cause Comments at 8-9; EFF Feb. 19, 2015 Ex Parte Letter at 2 (suggesting that the Commission should take into consideration “whether the practice is application agnostic”); but see ITIF Comments at 17, n.36 (“While Comcast’s current transparent, application agnostic network management practices are likely preferable over application specific congestion management, in some cases application specific management may be necessary.”). See 2010 Open Internet Order, 25 FCC Rcd at 17946, para. 74. See Comcast Comments at 70 (noting the benefits of government-industry collaboration in telecommunications policymaking); ITIF Comments at 20; Verizon Comments at 17; WISPA Comments at 35; Mozilla Reply at 22; MDTC Comments at 5-6; see also 2010 Open Internet Order, 25 FCC Rcd at 17946, para. 74. See infra Section III.D. AT&T Reply at 74-75; T-Mobile Reply at 7; Verizon Reply at 32-33. CTIA Reply at 27-30; Letter from Scott Bergmann, Vice President – Regulatory Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 3 (filed Oct. 3, 2014). Nokia Reply at 8. Free State Reply at 3. See supra Section III.B.2. CDT Comments at 28. See, e.g., CDT Comments at 19; Free Press Comments at 8-9; Public Knowledge Comments at 31; MLB Advanced Media Comments at 2-3; Microsoft Comments at 13-14; Internet Association Comments at 16; Sandoval Ex Parte Letter at 2 (asserting that the commercial reasonableness rule would deter investment and Internet applications, such as Internet-enabled “Smart beds,” which read a patient’s vital signs and send aggregated data on available beds to mass casualty and disaster planners who use this information to determine which hospital has an available bed in a burn unit). CDT Comments at 18-19; see also Higher Education and Libraries Reply at 9-10; CDT and ALA Comments at 1. In the data roaming context, two commercial entities deal directly with one another to negotiate a fee-for-service agreement, and there is a direct business relationship with contractual privity and a purely commercial purpose on both sides of the transaction. Open Internet protections, by contrast, apply to a context where there may be no direct negotiation and no direct agreement between key parties. Moreover, while broadband providers are commercial entities with commercial purposes, many of the parties seeking to route traffic to broadband subscribers are not. CDT Comments at 18-19; see also AARP Comments at 37 (noting the difficulty of analyzing broadband providers’ relationships with millions of different edge providers under a data roaming-style “commercially reasonable” rubric). See, e.g., AARP Comments at 35-38; ADTRAN Comments at 26-28; Internet Association Comments at 16. See, e.g., Ad Hoc Comments at 21-22 (a commercially reasonable standard “will necessarily be complex, inexact, and massively fact-driven”); Consumers Union Reply at 2-3 (commercially reasonable standard is vague and unenforceable, and allows individualized negotiations to be left to private parties with motivations that may not necessarily be in the interest of consumers); eBay Comments at 4-5. See, e.g., Tumblr Reply at 10 (“Tumblr cannot afford to engage in what would likely be multi-year challenges against the biggest broadband providers, with large legal teams experienced in telecommunications law, simply to secure access for its users equal to that of its current, and future, competitors with deeper resources.”); Etsy Comments at 7 (arguing that a prohibition on commercially unreasonable transactions “creates an unacceptable level of uncertainty for small companies and will be too costly to enforce”); Reddit Comments at 8; Engine Advocacy Comments at 15; CodeCombat Comments at 7. See, e.g., Illinois and NY Comments at 5-84; CCIA Reply at 17; i2Coaltion Comments at 10 (“Start-ups that require priority service may not be able to bring their product to market without significant outside investment and investors will be affected by the increased equity needs of entrepreneurs.”); AAJC Comments at 5 (“A commercially reasonable standard where certain forms of prioritization are allowed benefits those with financial resources. Such prioritization would negatively impact many minority entrepreneurs who come from historically disadvantaged communities with lower incomes and educational opportunities . . . .”). See, e.g., T-Mobile Reply at 17 (asserting that its Music Freedom program, which allows consumers to stream music without it counting against their data plan, is “innovative” and “pro-consumer” and that “Music Freedom does not discriminate among streaming music services”); Verizon Reply at 27-28 (contending that T-Mobile’s Music Freedom, along with other similar initiatives, are evidence that consumer choice and competition “have ensured a differentiated marketplace”); CTIA Reply at 36; Sandvine Comments at 3-4, 7 (arguing that zero-rated applications have helped some people who otherwise could not afford access to some of their favorite services); Telefonica Reply at 7; Cequel Reply at 2, 6-7 (“Usage-based billing is not only a fair method of pricing, it is necessary for Suddenlink to bring broadband services to the often-remote communities that it serves. . . . If the FCC were to restrict usage-based billing, it would be restricting the future of broadband services in the very rural areas where it is trying to extend service.”); Verizon Reply at 22 (asserting that usage-based pricing provides a way for consumers who are not heavy users to keep their costs down); ITIF Reply at 16 (arguing that zero rating arrangements “are likely welfare-enhancing, offering a service that meets consumer demand at a lower price point” and noting that they may be structured in an “application neutral” manner that “allow[s] consumers to continue to access new innovations at the edge”); Verizon Comments at 30-31, 34 (asserting that arrangements that address only pricing could make service cheaper for end users, enabling them to access more content when and where they want it, and could provide a way for interested content providers to promote and encourage use of their services”); Free State Reply at 3-4, 13; Syntonic Wireless Reply at 9; GAO Report at 26 (explaining that participants in all eight groups agreed that they would be more likely to access content that does not count toward their data limits than content that does). See, e.g., USTelecom Reply at 46-47; Verizon Comments at 29-36; Ericsson Comments at 6-8, 14; ICLE & TechFreedom Comments at 16-41; ITIF Comments at 13-15; ARRIS Comments at 7-10; ADTRAN Reply at 5-13; Qualcomm Comments at 8-9; Sandvine Comments at 6-8; Free State Reply at 14-15 (“[T]he reality is that in order for the ‘next Google’ or the ‘next Facebook’ to compete against those well-entrenched giants, the putative new entrant might well be looking to negotiate some arrangement with a service provider that will give it a fighting chance of competing with the entrenched giants by differentiating itself.”); Syntonic Wireless Reply at 9-10 (explaining that sponsored content is a way to differentiate one’s product from the competition, and thus adds an additional plane of competition within edge provider markets); AT&T Reply at 77-78; CTIA Reply at 34-35 (“As the CEO of music streaming site Grooveshark remarked when T-Mobile added the company to the list of supported services, Music Freedom helps make little-known offerings available to a wider customer base[.]”); Telefonica Reply at 7; Letter from Susie Kim Riley, CEO, Aquto, Harjot Saluja, CEO, DataMi, Scott Schill, Producer, BBA Studios, Sam Gadodia, CEO LotusFlare, Gary Greenbaum, CEO, Syntonic, and Mike Nasco, CEO, Wazco, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 et al., at 1 (filed Jan. 22, 2015) (“Sponsored data and zero-rating arrangements hold great promise for content and edge providers, whether they are new entrants or incumbents, who can use them to promote innovative offerings, attract new customers, and grow a robust subscriber base.”). See, e.g., Verizon Comments at 31; Alcatel-Lucent Comments at 23-24 (asserting that sponsored data plans give consumers the opportunity to experience better service at no personal cost, which could facilitate a consumer experiencing the value of higher-tier service and adopting that higher-tier going forward” and that “[t]his increased consumer adoption would benefit the entire broadband ecosystem”); AT&T Reply at 77-79 (sponsored data plans can promote Internet openness by encouraging consumers to explore mobile online applications and content that they might otherwise not use); Verizon Reply at 22 (explaining that usage-based pricing promotes broadband adoption by “enabling customers to pay only for the services they wish to use, without having to subsidize higher-end users”); CWA/NAACP Comments at 16-18; National Minority Organization Comments at 9; Free State Reply at 4, 13; CenturyLink Comments at 5-7 (“A two-sided market approach ensures that the costs of content and applications causing greater bandwidth consumption are ultimately passed on to the subscribers who use those services, ensures that adequate pricing signals are communicated to edge providers and, overall, produces the optimal economic outcome.”). See Sandvine Comments at 6-7; Roslyn Layton Reply at 4 (“[A] content provider may want to subsidize the delivery of its content so that it can maximize viewing and viewers. We see this in the case of a health provider which wants to ensure that low-income pregnant women watch a series of pre-natal videos, a preventative form of health care that improves infant and mother outcomes. Similarly a health care provider would be willing to subsidize a mobile subscription of its members to encourage adoption of preventative health care and monitoring tools. The cost of avoiding an adverse health event is well worth the price of a broadband subscription. The health care member benefits with better health outcome and the health care provider reduces costs.”). Consumers Union Reply at 5; NPR Comments at 11 (arguing that such sponsored services and data caps discourage “consumers from using their mobile devices to access the vital content provided by public radio via websites and apps”); Letter from John Bergmayer, Public Knowledge to Marlene H. Dortch, Secretary, FCC, MB Docket Nos. 14-57, 14-90, GN Docket Nos. 14-28, 10-127, 09-191, 13-5, 12-353, 09-51, WC Docket Nos. 07-52, 10-90, 96-45, 06-122, at 3 (filed Nov. 13, 2014) (“Mobile users’ behavior is shaped in part by billing practices and pricing structures. As Horrigan finds, ‘among the 55% of smartphone users with a data cap, more than half – 52% – have altered their online behavior because of the cap – either by not doing some online activities out of concern for hitting the limit or by waiting until they were in Wi-Fi range.’”). See, e.g., CFA Comments at 39 (describing AT&T’s sponsored data plan on its mobile network as a form of discrimination); Consumers Union Comments at 13 (explaining that “[e]xempting certain affiliated services from data caps does not provide consumers with a meaningful choice. Instead, it pushes them to watch affiliated content out of fear that doing otherwise will count against their monthly caps and result in either overage charges or slower speeds”). See, e.g., Public Knowledge Comments at 21 (recounting concerns about harming innovation in relation to AT&T’s “sponsored data” plan and T-Mobile’s recently announced “Music Freedom” service); id. at 53 (arguing that “AT&T’s Sponsored Data program allows it to monetize artificial scarcity and creates a disincentive to increase caps over time”); WGAW Reply at 36-37 (explaining that sponsored data services require “content providers and applications to pay for the data usage, but does nothing to address the capacity constraints so widely touted as problematic by wireless carriers”); Letter from Ademir Antonio Pereira, Jr. to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 09-191, Attach. at 7-8 (filed Feb. 19, 2015). See supra para. REF _Ref410885513 \r \h \* MERGEFORMAT 151; see also Public Knowledge Comments at 21, 53-54. See, e.g., CWA/NAACP Comments at 18-19; CFA Comments at 39 (expressing concern regarding Comcast’s exemption of Xfinity online video app on Xbox and TiVo from data caps in 2012); Consumers Union Comments at 8; NPR Comments at 11; Nokia Comments at 8-10 (stating that “[t]he existence of data caps impacts content and OTT companies because these entities see a decline in traffic to their websites, applications, and other service platforms as the month progresses due to rationing by the consumer”); Public Knowledge Comments at 48-60 (asserting that usage-based billing could enable broadband providers to create metered and unmetered lanes, supposedly no different than the fast and slow lanes feared with paid prioritization); Roku Comments at 8; Telecommunications for the Deaf and Hard of Hearing et al Comments at iii, 15 (urging the Commission “to consider the disproportionate impact of data caps on people who are deaf or hard of hearing, who depend on data-intensive applications for basic communications”); T-Mobile Reply at 14-16 (describing consumer benefits of its “Simple Choice” plan); Writers Guild of America East and AFL-CIO Comments at 25; Tumblr Reply at 2. See, e.g., U.S. Government Accountability Office, Report, Broadband Internet: FCC Should Track the Application of Fixed Internet Usage-Based Pricing and Help Improve Consumer Education, GAO-15-108, at 8 (Nov. 2014) (GAO Report). See, e.g., T-Mobile Reply at 14-16 (noting that customers on T-Mobile’s Simple Choice plan “can choose plans with unlimited high-speed data, or an allotment of high-speed data with unlimited data at 2G speeds after their allotment is used” and arguing that such plans are designed to “allow subscribers to decide what price they want to pay for what service, and still use as much mobile data as they want without incurring overage charges . . .”). See, e.g., Public Knowledge Comments at 51-52; Consumer’s Union Reply at 5 (“If the largest mobile carriers exempt certain uses from their data caps, the effect is to push consumers to watch affiliated content out of fear that doing otherwise will count against their monthly caps.”). Regarding usage-based pricing plans, there is similar disagreement over whether these practices are beneficial or harmful for promoting an open Internet. Compare Bright House Comments at 20 (“Variable pricing can serve as a useful technique for reducing prices for low usage (as Time Warner Cable has done) as well as for fairly apportioning greater costs to the highest users.”) with Public Knowledge Comments at 58 (“Pricing connectivity according to data consumption is like a return to the use of time. Once again, it requires consumers keep meticulous track of what they are doing online. With every new web page, new video, or new app a consumer must consider how close they are to their monthly cap. . . . Inevitably, this type of meter-watching freezes innovation.”), and ICLE & TechFreedom Policy Comments at 32 (“The fact of the matter is that, depending on background conditions, either usage-based pricing or flat-rate pricing could be discriminatory.”). See 2014 Open Internet NPRM, 29 FCC Rcd at 5585, para. 66; see also, e.g., Howard Beales, Richard Craswell & Steven C. Salop, The Efficient Regulation of Consumer Information, 24 J. L. & Econ. 491 at 513 (1981); Howard Beales, Richard Craswell & Steven C. Salop, Information Remedies for Consumer Protection, 71 Am. Econ. Rev. 410 at 411 (Papers & Proceedings, May 1981); Alissa Cooper, How Regulation and Competition Influence Discrimination in Broadband Traffic Management: A Comparative Study of Net Neutrality in the United States and United Kingdom, at Section 2.4.3 (Sept. 2013), http://www.alissacooper.com/phd-thesis/ (“A policy of requiring ISPs to publicly disclose the details of their traffic management practices, whether combined with additional regulation or not, has enjoyed widespread support.”) (Cooper Thesis); see also Letter from Kathleen Grillo, Senior Vice President, Federal Regulatory Affairs, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 12-269, 14-28, at 1 (filed Mar. 24, 2014) (arguing that “the Commission should rely primarily on consumer choice, competition, and transparency to guide Commission policy”) (emphasis added). 2014 Open Internet NPRM, 29 FCC Rcd at 5586, para. 67. Id. at 5586-92, paras. 68, 72, 76, 80, 83, 84-85. See Verizon, 740 F.3d at 659. In the 2014 Open Internet NPRM, we concluded that “we have ample authority not only for our existing transparency rules, but also for the enhanced transparency rules we propose today, whether the Commission ultimately relies on section 706, Title II, or another source of legal authority.” See 2014 Open Internet NPRM, 29 FCC Rcd at 5585, para. 65. See 2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56 (concluding that effective disclosures will include information concerning: (1) network practices, including, for example, congestion management and security measures; (2) performance characteristics, including a general description of system performance (such as speed and latency); and (3) commercial terms, including pricing, privacy policies, and redress options). Id. at 17937, para. 54; see also 47 C.F.R. § 8.3. 47 C.F.R. § 8.3. See 2010 Open Internet Order, 25 FCC Rcd at 17938-40, 17959, paras. 56-57, 98. Id. at 17939, para. 56. Id. FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance for Compliance with Open Internet Transparency Rule, GN Docket No. 09-191, WC Docket No. 07-52, Public Notice, 26 FCC Rcd 9411 (2011) (2011 Advisory Guidance). Id.; see also 2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56. 2011 Enforcement Advisory Guidance, 26 FCC Rcd at 9416. FCC Enforcement Advisory, Open Internet Transparency Rule: Broadband Providers Must Disclose Accurate Information to Protect Consumers, Public Notice, 29 FCC Rcd 8606, 8607 (2014) (2014 Advisory Guidance). Id. Id. Id. 2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56. Id. We decline, however, to adopt a specific timeframe concerning the updating of disclosures following a material change (e.g., 24 hours). See 2014 Open Internet NPRM, 29 FCC Rcd at 5593, para. 88 (“In what timeframe should the Commission require providers to report . . . changes in their traffic management policies to the Commission?”). See, e.g., Organization for Economic Co-operation and Development, Enhancing Competition in Telecommunications: Protecting and Empowering Consumers, Directorate for Science, Technology and Industry, Committee for Information, Computer and Communications Policy at 4 (2008), http://www.oecd.org/dataoecd/25/2/40679279.pdf (stating that informed consumers “are necessary to stimulate firms to innovate, improve quality and compete in terms of price. In making well-informed choices between suppliers, consumers not only benefit from competition, but they initiate and sustain it.”); Comcast Comments at 15-16 (noting that some of the transparency enhancements suggested in the NPRM could support the “virtuous circle”); EFF Comments at 26 (discussing the importance of information from broadband providers in order to develop new applications and protocols); iClick2Media Comments at 19 (noting that greater communication with end users would allow end users to become active in the virtuous circle); Koning Comments at 18 (noting that without transparency, forms of Internet encryption widely used today “would not be possible”). 2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56. 2014 Open Internet NPRM, 29 FCC Rcd at 5586-87, para. 69. Id. Id. See, e.g., TDI Comments at 2-4. See, e.g., EFF Comments at 26; Microsoft Comments at 31; Telecommunications for the Deaf and Hard of Hearing Comments at 3; Vonage Comments at 28. See Charter Comments at 23 (noting that Charter’s website “explains when promotional rates will revert to standard rates”). See IL and NY Comments at 11-12 (“[T]he transaction costs [to the consumer] of changing service in order to avoid pay-for-priority or individualized agreements can be substantial. They include early-termination fees, installation fees, finding an alternative broadband Internet service provider and comparing speeds . . . .”). The Commission agrees that the magnitude of these fees bears on consumer decision-making when choosing or switching providers. As a result, the provision of explicit information regarding these fees by providers both promotes competition and assists in consumer decision making. 2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56. Id.; 2011 Advisory Guidance, 26 FCC Rcd 9411. 2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56. See Id. at 17939, para. 56; 2011 Advisory Guidance, 26 FCC Rcd at 9414. 2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56. See, e.g., AARP Comments at 49 (stating that information regarding packet loss could be useful to consumers if accessible); EFF Comments at 29 (calling for inclusion of packet loss in disclosures); Online Publishers Association Comments at 8-9 (supporting the inclusion of packet loss in disclosures); TechAmerica Comments at 5-6 (supporting the inclusion of packet loss); see also BITAG Congestion Report at 12 (discussing delay intolerant applications). See, e.g., Cogent Remand PN Comments at 13 (“Without more localized data, consumers will not have meaningful information on which to base choices concerning local broadband service, and broadband providers will not be incentivized to offer higher quality serves in all areas.”); See Letter from Dr. Jeremy Gillula, Electronic Frontier Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Oct. 30, 2014) (“We also suggested that if a national ISP has significantly different performance in different metropolitan or other geographical areas, then the ISP should be required to report its metrics separately for each of those areas.”); id. at 3 (“[I]t would be useful if mobile broadband ISPs provided additional disclosures (particularly metrics like throughput and packet loss) broken down by geographical area . . . .”). We recognize that parties have expressed concern about providing disclosures about network performance on a real-time basis. See Letter from Scott K. Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Jan. 15, 2015).  The enhancements to the transparency rule we adopt today do not include such a requirement. See, e.g., WGAW Comments at 18 (calling for disclosure of actual speeds at peak times); see also FCC’s Office of Engineering and Technology and Consumer & Governmental Affairs Bureau, 2014 Measuring Broadband America Fixed Broadband Report: A Report on Consumer Fixed Broadband Performance in the US at 5 (2014), http://data.fcc.gov/download/measuring-broadband-america/2014/2014-Fixed-Measuring-Broadband-America-Report.pdf (stating that download and upload speeds are measured by average throughput over a 5 second time window, and defining the peak usage period for fixed broadband as between 7:00 p.m. and 11:00 p.m. local time). Given that the performance of mobile broadband networks is subject to a greater array of factors than fixed networks, we note that disclosure of a range of speeds may be more appropriate for mobile broadband consumers. Per the 2011 Advisory Guidance, those mobile broadband providers that “lack reasonable access” to reliable information on their network performance metrics may disclose a “Typical Speed Range (TSR)” to meet the requirement to disclose actual performance. See 2011 Advisory Guidance, 26 FCC Rcd at 9415-16. In any event, we expect that mobile broadband providers’ disclosure of actual performance data will be based on accepted industry practices and principles of statistical validity. Participation in the Measuring Broadband America (MBA) program continues to be a safe harbor for fixed broadband providers in meeting the requirement to disclose actual network performance. The 2011 Advisory Guidance further stated that fixed providers that choose not to participate in MBA may measure and disclose performance of their broadband offerings using the MBA’s methodology, internal testing, consumer speed data, or other data, including reliable, relevant data from third-party sources. See 2011 Advisory Guidance, 26 FCC Rcd at 9415. Various software-based broadband performance tests are available as potential tools for end users and companies to estimate actual broadband performance. See, e.g., FCC, Speed Test App, http://www.fcc.gov/measuring-broadband-america/mobile (last visited Feb. 24, 2015); Ookla, Speedtest.net http://www.speedtest.net (last visited Feb. 24, 2015); MLab, Internet Measurement Tools, http://www.measurementlab.net/tests (last visited Feb. 24, 2015); Assia, CloudCheck, http://forum.cloudcheck.net (last visited Feb. 24, 2015). See also Letter from Gerard J. Waldron, counsel to Adaptive Spectrum and Signal Alignment, Inc. (ASSIA), to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Jan. 28, 2015) (discussing a particular application, CloudCheck, which ASSIA reports “measures and monitors broadband speeds and throughout, and . . . can report to consumers and other interested parties information about the performance of consumers’ internet connectivity”). As noted above, we anticipate that the measurement methodology used for the MBA project will continue to be refined, which in turn will enhance the effectiveness of network performance disclosures generally. See, e.g., ACA Comments at 36 (stating that the MBA program is achieving its aims); CenturyLink Comments at 25-27 (noting the significant transparency through MBA participation); Frontier Comments at 7 (suggesting making greater use of the MBA program). We expect that acceptable methodologies will be grounded in commonly accepted principles of scientific research, good engineering practices, and transparency. See FCC’s Office of Engineering and Technology and Consumer & Governmental Affairs Bureau, Measuring Broadband America Policy on Openness and Transparency, http://www.fcc.gov/measuring-broadband-america/openness-transparency-policy (last visited Feb. 21, 2015). 2010 Open Internet Order, 25 FCC Rcd at 17939, para. 56. See infra Section III.D.3.; see also BITAG Congestion Report at 43 (discussing transparency). See 2014 Open Internet NPRM, 29 FCC Rcd at 5591, para. 83. Short-term congestion occurs whenever instantaneous demand exceeds capacity. See BITAG Congestion Report at 4-5. Since demand often consists of the aggregation of a large number of users’ traffic, it is technologically difficult to determine the sources of each component of the aggregate traffic. See, e.g., ACA Comments at 40; AT&T Comments at 88; Charter Comments at 27 (noting that ISPs can monitor only a portion of the transmission path); Letter from Steven F. Morris, Vice Pres. and Gen. Counsel, NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Jan. 21 2015) (“As the Commission has acknowledged, the performance experienced by a consumer is affected by many factors beyond the control of an ISP.”); Cox Comments at 20-21; WISPA Comments at 16 (“In addition, the source of congestion at a given time may not be clear to the broadband provider, especially if the congestion results from events occurring outside the local broadband network. As a result, broadband providers will simply default to general language listing all of the possible sources of congestion, which solves no purpose other than to make disclosure requirements confusing and meaningless.”). See 2014 Open Internet NPRM, 29 FCC Rcd at 5588, para. 73. See, e.g., AT&T Comments at 89 (“[R]equiring more technical disclosures would not yield meaningful benefits to edge providers or device manufacturers, because there is no single industry-accepted meaning or method of measurement for broadband metrics like corruption and jitter.”). Furthermore, corrupted packets may be included in the packet loss performance characteristic. 2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56 (elaborating upon each of these subcategories as follows: (1) congestion management (“If applicable, descriptions of congestion management practices; types of traffic subject to practices; purposes served by practices; practices’ effects on end users’ experience; criteria used in practices, such as indicators of congestion that trigger a practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate”); (2) application-specific behavior (“If applicable, whether and why the provider blocks or rate-controls specific protocols or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or favors certain applications or classes of applications”); (3) device attachment rules (“If applicable, any restrictions on the types of devices and any approval procedures for devices to connect to the network”); and (4) security (“If applicable, practices used to ensure end-user security or security of the network, including types of triggering conditions that cause a mechanism to be invoked (but excluding information that could reasonably be used to circumvent network security)”); see id. at 17959, para. 98 (specifying certain application-approval and device-attachment disclosures by mobile broadband providers, explaining that the transparency rule requires them: “to disclose their third-party device and application certification procedures, if any; to clearly explain their criteria for any restrictions on use of their network; and to expeditiously inform device and application providers of any decisions to deny access to the network or of a failure to approve their particular devices or applications”). Additionally, “mobile broadband providers should follow the guidance the Commission provided to licensees of the upper 700 MHz C Block spectrum regarding compliance with their disclosure obligations, particularly regarding disclosure to third-party application developers and device manufacturers of criteria and approval procedures (to the extent applicable). For example, these disclosures include, to the extent applicable, establishing a transparent and efficient approval process for third parties, as set forth in Rule 27.16(d).” Id. As discussed above, this information remains part of the transparency rule, with the exception of the requirement to disclose the “typical frequency of congestion.” For example, a broadband Internet access service provider may define user groups based on the service plan to which users are subscribed, the volume of data that users send or receive over a specified time period of time or under specific network conditions, or the location of users. See infra Sections III.C.1.b; III.D.4. See also BITAG Congestion Report at 18 (discussing user-based congestion management); Microsoft Comments at 31 (discussing the need to disclose congestion thresholds that trigger traffic shaping and the consequences of traffic shaping). See infra Section III.D.4. See also BITAG Congestion Report at 43 (discussing what should be required in disclosures of congestion management policies); Broadband Internet Technical Advisory Group, Port Blocking at 22-23 (2013) http://www.bitag.org/documents/Port-Blocking.pdf (discussing recommendations for disclosure of ISP port blocking policies); Microsoft Comments at 31 (recommending disclosure of “types of edge services or protocols (if any) the broadband access provider filters, prioritizes, or otherwise treats in a non-neutral manner, relative to other types of traffic”); EFF Comments at 29 (requesting “clear warnings about any fast lanes, premium services, blocking or filtering that the user will not have a simple and practical way to avoid”); Kentucky Public Library Association Comments at 1 (“Consumers should be aware of the ISP’s guidelines on what kind of content qualifies as spam and what level of congestion would necessitate limiting certain customer’s bandwidth.”); Online Publishers Association Comments at 9 (noting importance of information “about any network management practices that may impede [consumers’] ability to access to content or services); Roku Comments at iii (noting that any practices or policies that exempt traffic from data caps should be specifically disclosed); TechAmerica Comments at 5 (supporting the disclosure of any blocking); Vonage Comments at 27-28 (requesting disclosure of all network management practice that degrade service capacity); WGAW Comments at 18 (asking for details on congestion management policies). See 2014 Open Internet NPRM, 29 FCC Rcd at 5588, para. 73. See, e.g., NCTA Comments at 50 (“Such a requirement likely would necessitate significant use of deep packet inspection in an attempt to determine the user or device responsible for originating or receiving particular Internet traffic.”); EFF Comments at 32 (expressing privacy concerns about disclosure of application-specific information). 2010 Open Internet Order, 25 FCC Rcd at 17939-40, para. 57. Broadband providers must actually disclose information required for consumers to make an “informed choice” regarding the purchase or use of broadband services at the point of sale. It is not sufficient for broadband providers simply to provide a link to their disclosures. See supra Section III.C.3.a. See, e.g., ACA Comments at 32-39; Competitive Carrier Association (CCA) Comments at 8-9 (“Expanding the current disclosure requirements would also be particularly burdensome on smaller carriers); WISPA Comments at 15-16; WTA Comments at 8 (“WTA is very concerned about the increased costs and uncertain benefits of the proposed enhanced transparency requirements for smaller carriers and their customers.”); Letter from Erin P. Fitzgerald, Assistant Regulatory Counsel, Rural Wireless Association, Inc., to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 at 1 (filed Nov. 14, 2014) (RWA Nov. 14, 2014 Ex Parte Letter) (“While RWA members have developed procedures to comply with the Commission’s 2010 transparency and disclosure rules,[footnote omitted] engaging in a similar endeavor to comply with new and/or more stringent rules would be costly and further strain rural carriers’ limited resources.”); Letter from Stephen E. Coran, Counsel to the Wireless Internet Service Providers Association, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 at 8 (filed Feb. 3, 2015) (“To avoid the significant effects that would result from the Commission’s proposed rules, the Commission should exempt small businesses from any new transparency and reporting obligations.”). See ACA Comments at 39-40 (“any enhanced disclosure rule regarding network congestion . . . should exclude ‘small providers’”). Letter from Barbara Esbin, Counsel for ACA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 6 (filed Feb. 2, 2015) (ACA Feb. 2, 2015 Ex Parte Letter). Id. at 5-6 (“ACA also discussed the lack of record support for the imposition of any enhanced transparency requirements for small ISPs, particularly proposals to maintain a separate set of Open Internet disclosures tailored to the needs of edge providers and to disclose, on a real-time basis, information about network congestion and the lack of demonstrable benefits that would accrue from such reporting”). See also id. at 6 (reporting on an ex parte meeting in which a representative of an ACA member “confirmed that realtime network congestion disclosures would be highly burdensome for a small ISP”). Id. at 5. See Rural Call Completion, WC Docket No. 13-39, Report and Order and Further Notice of Proposed Rulemaking, 28 FCC Rcd 16154 (2013) (Rural Call Completion Order). We also note that one of the entities requesting relief from enhanced transparency rules – RWA – is comprised of member companies serving fewer than 100,000 mobile subscribers. RWA Nov. 14, 2014 Ex Parte Letter at 1. Cf. Rural Call Completion Order, 28 FCC Rcd at 16164, para. 19. RWA Nov. 14, 2014 Ex Parte Letter at 6. 2010 Open Internet Order, 25 FCC Rcd at 17937, para. 54. See, e.g., Mayor de Blasio et al. Comments at 1 (“Currently, the lack of clear, accurate information results in confusion with respect to key service features like download and upload speeds, pricing and usage restrictions.”). 2014 Open Internet NPRM, 29 FCC Rcd at 5586, para. 68. Letter from Barbara S. Esbin, Counsel for American Cable Association to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 4 (filed Jan. 28, 2015). Bright House Comments at 14. Tech Freedom Comments at 12. See 2014 Open Internet NPRM, 29 FCC Rcd at 5587-88, para. 72. See id. at 5588 n.171. See Open Internet Advisory Committee, Open Internet Label Study (Aug. 20, 2013), at http://transition.fcc.gov/cgb/oiac/Transparency-Label-Study.pdf (OIAC Label Study); see also New America Foundation Broadband Truth-in-Labeling proposal: http://newamerica.net/sites/newamerica.net/files/policydocs/NAF_OTI_Broadband_Truth_in_Labeling-09-2009.pdf. See Ofcom, Improving traffic management transparency: Ofcom sets out steps for ISPs to take (Nov. 2011), http://media.ofcom.org.uk/news/2011/improving-traffic-management-transparency/. We note that although we have sought comment on what format would be most effective, the record is lacking on specific details as to how such a disclosure should be formatted. The Committee’s purpose is to make recommendations to the Commission regarding consumer issues within Commission’s jurisdiction and to facilitate the participation of consumers (including people with disabilities and underserved populations, such as Native Americans and persons living in rural areas) in proceedings before the Commission. For example, the Committee has studied the value of standardized disclosures and their contents. See, e.g., FCC Consumer Advisory Committee, Recommendations Regarding Pre-Sale Consumer Disclosures (Aug. 4, 2010), at https://apps.fcc.gov/edocs_public/attachmatch/DOC-300826A1.pdf. See, e.g., NCTA Comments at 51 (“If the Commission decides to pursue standardized disclosures, NCTA would welcome the opportunity to participate in the development of a voluntary program.”). See 47 C.F.R. § 8.3. Even where a particular category of information discussed above was not specified in the 2010 Open Internet Order that does not mean that disclosure of that information has not consistently been required under the transparency rule. If such information is necessary for a consumer to make an “informed choice” regarding the purchase or use of broadband service, disclosure of that information is a fundamental requirement of the transparency rule. See 2014 Advisory Guidance, 29 FCC Rcd at 8607. See 2014 Open Internet NPRM, 29 FCC Rcd at 5592-93, para. 87. Id. Id. See, e.g., ACA Comments at v (“The Commission should, rather than adopt enhancements, continue to rely upon its complaints and enforcement procedures to address any material concerns about individual providers’ disclosures that may arise.”); Charter Comments at 34-35 (arguing that the proposed enhanced enforcement mechanisms are unnecessary and susceptible to abuse). See, e.g., EFF Comments at 26-27; Microsoft Comments at 32-33. See infra Section III.E.2.a(i). See infra Section III.D.4. 47 C.F.R. § 8.11(a); 2010 Open Internet Order, 25 FCC Rcd at 17932, para. 44; id. at 17935, para. 51 (finding that the market and regulatory landscape for dial-up Internet access service differed from broadband Internet access service); 2014 Open Internet NPRM, 29 FCC Rcd at 5581, para. 54. The Verizon decision upheld the Commission’s regulation of broadband Internet access service pursuant to section 706 and the definition of “broadband Internet access service” has remained part of the Commission’s regulations since adopted in 2010. 2010 Open Internet Order, 25 FCC Rcd at 17932, para. 44. The Commission has consistently determined that resellers of telecommunications services are telecommunications carriers, even if they do not own any facilities. See, e.g., Regulation of Prepaid Calling Card Services, WC Docket No. 05-68, Declaratory Ruling and Report and Order, 21 FCC Rcd 7290, 7293-94, 7312, paras. 10, 65 (2006), vacated in part on other grounds sub nom. Qwest Servs. Corp. v. FCC, 509 F.3d 531 (D.C. Cir. 2007); NOS Communications, Inc., Affinity Network Inc. and NOSVA Limited Partnership, EB Docket No. 03-96, Order to Show Cause and Notice of Opportunity for Hearing, 18 FCC Rcd 6952, 6953-54, para. 3 (2003); Regulatory Policies Concerning Resale and Shared Use of Common Carrier Services and Facilities, Docket No. 20097, Report and Order, 60 FCC 2d 261, 265 para. 8 (1976) (“[A]n entity engaged in the resale of communications service is a common carrier, and is fully subject to the provisions of Title II.”), aff’d sub nom. AT&T v. FCC, 572 F.2d 17 (2d Cir. 1978). Further, as the Supreme Court observed in Brand X, “the relevant definitions do not distinguish facilities-based and non-facilities-based carriers.” Brand X, 545 U.S. at 997. We note that the rules apply not only to facilities-based providers of broadband service but also to resellers of that service. In applying these obligations to resellers, we recognize, as the Commission has in other contexts, that consumers will expect the protections and benefits afforded by providers’ compliance with the rules, regardless of whether the consumer purchase service from a facilities-based provider or a reseller. See, e.g., Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems et al., CC Docket No. 94-102, IB Docket No. 99-67, Report and Order and Second Further Notice of Proposed Rulemaking, 18 FCC Rcd 25340, 25380, para. 96 (2003). We note that a reseller’s obligation under the rules is independent from the obligation of the facilities-based provider that supplies the underlying service to the reseller, though the extent of compliance by the underlying facilities-based provider will be a factor in assessing compliance by the reseller. 2010 Open Internet Order, 25 FCC Rcd at 17934, para. 49 & n.153. See 47 U.S.C. § 153(34) (“The term ‘mobile station’ means a radio-communication station capable of being moved and which ordinarily does move.”); Open Internet Order, 25 FCC Rcd at 17934, para. 49. We note that “public safety services,” as defined in section 337 of the Act, are excluded from the definition of mobile broadband Internet access service. See 47 U.S.C. § 337(f)(1). We provide these definitions of “fixed” and “mobile” for illustrative purposes. In contrast to the Commission’s 2010 Open Internet Order, here we are applying the same regulations to both fixed and mobile broadband Internet access services. 2010 Open Internet Order, 25 FCC Rcd at 17932, para. 45. In the 2010 Open Internet Order, the Commission found that “mass market” included broadband Internet access services purchased with support of the E-rate program. See 2010 Open Internet Order, 25 FCC Rcd at 17932, para. 45. Since that time, the Commission has extended universal service support for broadband services through the Lifeline and Rural Health Care programs. See Lifeline and Link Up Reform and Modernization; Lifeline and Link Up; Federal-State Joint Board on Universal Service; Advancing Broadband Availability Through Digital Literacy Training, WC Docket Nos. 11-42, 03-109, 12-23, CC Docket No. 96-45, Report and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 6656, 6795, para. 323 (2012) (adopting “a Low-Income Broadband Pilot Program . . . that will focus on testing the necessary amount of subsidies for broadband and the length of support”); Rural Health Care Support Mechanism, WC Docket No. 02-60, Report and Order, 27 FCC Rcd 16678 (2012). Thus, for the same reasons the Commission defined mass market services to include BIAS purchased with the support of the E-rate program in 2010, we now find that mass market also includes BIAS purchased with the support of Lifeline and Rural Health Care programs. See Higher Education and Libraries Comments at 11 (noting that institutions of higher education are not “residential customers” or “small businesses” and uncertainty about whether institutions of higher education (and their libraries) are included in the term “schools” because the term is sometimes interpreted as applying only to K-12 schools). See 2010 Open Internet Order, 25 FCC Rcd at 17932, para. 45; AT&T/BellSouth Merger Order, 22 FCC Rcd at 5709-10, para. 85 (“[E]nterprise customers tend to be sophisticated and knowledgeable (often with the assistance of consultants), . . . contracts are typically the result of RFPs and are individually-negotiated (and frequently subject to non-disclosure clauses), . . . contracts are generally for customized service packages, and . . . the contracts usually remain in effect for a number of years.”). The Commission has a separate, ongoing proceeding examining special access. See Special Access for Price Cap Local Exchange Carriers; AT&T Corporation Petition for Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services, WC Docket No. 05-25, RM-10593, Report and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 16318 (2012) (Special Access Data Collection Order or Special Access Data Collection NPRM) (initiating special access data collection and seeking comment on a proposal to use the data to evaluate competition in the special access services market); Special Access for Price Cap Local Exchange Carriers; AT&T Corporation Petition for Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services, WC Docket No. 05-25, RM-10593, Report and Order, 27 FCC Rcd 10557 (2012) (Pricing Flexibility Suspension Order) (suspending, on an interim basis, the Commission’s rules allowing the grant of pricing flexibility for special access services in areas subject to price cap regulation and, to identify a replacement framework, detailing a plan to collect data and information for a robust market analysis to gauge actual and potential competition for special access services); Special Access Rates for Price Cap Local Exchange Carriers; AT&T Corp. Petition for Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services, WC Docket No. 05-25, RM-10593, Order and Notice of Proposed Rulemaking, 20 FCC Rcd 1994 (2005) (Special Access NPRM) (initiating a broad examination of the regulatory framework to apply to price cap local exchange carrier’s interstate special access services); see also Special Access for Price Cap Local Exchange Carriers; AT&T Corporation Petition for Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services, WC Docket No. 05-25, RM-10593, Order on Reconsideration, 29 FCC Rcd 10899 (Wireline Comp. Bur. 2014) (finalizing the special access data collection pursuant to delegated authority). 2010 Open Internet Order, 25 FCC Rcd at 17933, para. 47; 2014 Open Internet NPRM, 29 FCC Rcd at 5581, para. 58; see also, e.g., Cox Comments at 8, 14; Nokia Comments at 11. 2014 Open Internet NPRM, 29 FCC Rcd 5581-82, para. 58; 2010 Open Internet Order, 25 FCC Rcd at 17933, para. 47 (“These services typically are not mass market services and/or do not provide the capability to transmit data to and receive data from all or substantially all Internet endpoints.”); see also Verizon Comments at 77-78. 2010 Open Internet Order, 25 FCC Rcd at 17936, para. 52, n.164 (“We also do not include within the rules free access to individuals’ wireless networks, even if those networks are intentionally made available to others.”). See id. at 17935, para. 52. While we decline to apply open Internet rules to premises operators to the extent they may offer broadband Internet access service, that decision does not affect other obligations that may apply to premises operators under the Act.  See, e .g., 47 U.S.C. § 333; Warning: Wi-Fi Blocking is Prohibited, Public Notice, DA 15-113 (Enforcement Bur. Jan. 27, 2015); Marriott Int’l, Inc.; Marriott Hotel Servs, Inc., EB-IHD-13-00011303, Order and Consent Decree, 29 FCC Rcd 11760 (Enforcement Bur. 2014). 2010 Open Internet Order, 25 FCC Rcd at 17935-36, para. 52, n.163. We reiterate the guidance in the 2010 Open Internet Order that although not bound by our rules, we encourage premises operators to disclose relevant restrictions on broadband service they make available to their patrons. See id. CDT Comments at 26 n.61; Higher Education and Libraries Reply at 14-15. We note, however, that this exception does not affect other obligations that a premise operator may have independent of our open Internet rules. See TDI Comments at 14-15 (arguing that the enterprise or premise operator exception should not apply to blocking or prioritization undertaken in violation of disability law). See supra Section III.B.3. Although we adopt the same rules for both fixed and mobile services, we recognize that with respect to the reasonable network management exception, the rule may apply differently to fixed and mobile broadband providers. See infra Section III.D.4. See infra Section III.D.2. See infra Sections IV-V. We note that broadband Internet access services are also subject to sections 222, 224, 225, 254, and 255. See infra paras. REF _Ref410886085 \r \h \* MERGEFORMAT 202- REF _Ref410886093 \r \h \* MERGEFORMAT 206. Letter from Scott Blake Harris, Counsel to Akamai Technologies, Inc. to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Feb. 9, 2015) (“Akamai agrees with [the tentative conclusion not to apply the open Internet rules to CDNs] and submits that it should be adopted in the final order.”). 2010 Open Internet Order, 25 FCC Rcd at 17993, para. 47 n.150, 17944, para. 67 n.209; see also id. at para. 47 (excluding content delivery network services and Internet backbone services (if those services are separate from broadband Internet access) from the definition of “broadband Internet access service”). 2014 Open Internet NPRM, 29 FCC Rcd at 5582, 5614-15, paras. 59, 151-52. As a general matter, Internet traffic exchange involves the exchange of IP traffic between networks. An Internet traffic exchange arrangement determines which networks exchange traffic and the destinations to which those networks will deliver that traffic. In aggregate, Internet traffic exchange arrangements allow an end user of the Internet to interact with other end users on other Internet networks, including content or services that make themselves available by having a public IP address, similar to how the global public switched telephone network consists of networks that route calls based on telephone numbers. When we adopted the 2014 Open Internet NPRM, the Chairman issued a separate, written statement suggesting that “the question of interconnection (‘peering’) between the consumer’s network provider and the various networks that deliver to that ISP . . . is a different matter that is better addressed separately.” 2014 Open Internet NPRM, 29 FCC Rcd at 5647. While this statement reflected the Notice’s tentative conclusion concerning Internet traffic exchange, it in no way detracts from the fact that the Notice also sought comment on “whether we should change our conclusion,” whether to adopt proposals to “expand the scope of the open Internet rules to cover issues related to traffic exchange,” and how to “ensure that a broadband provider would not be able to evade our open Internet rules by engaging in traffic exchange practices that would be outside the scope of the rules as proposed.” Id. at 5582, para. 59. See infra Section IV. See infra para. REF _Ref410889597 \r \h \* MERGEFORMAT 205. See infra Section V. See, e.g., Verizon Reply at 57; CenturyLink Reply at 11. William Norton, The Evolution of the U.S. Internet Peering Ecosystem, Dr. Peering, http://drpeering.net/white-papers/Ecosystems/Evolution-of-the-U.S.-Peering-Ecosystem.html (last visited Feb. 5, 2015). Id. See, e.g., Verizon Reply at 58 (explaining that “new arrangements [are] emerging on a regular basis to provide for efficient network planning and traffic delivery, as well as improved service for customers as their demands for Internet services continues to grow”); AT&T Reply at 96 (“For more than two decades, such interconnection has taken the form of ‘transit’ and ‘peering’ agreements, and in recent years, ‘on-net-only’ agreements have arisen in response to growing demands for video and other forms of media-rich content.”); see also Werbach, Kevin D., The Centripetal Network: How the Internet Holds Itself Together, and the Forces Tearing it Apart (2009), 42 U.C. Davis L. Rev. , 343, 371 (2009), http://ssrn.com/abstract=1118435 (anticipating the evolving interconnection ecosystem). See 2015 Broadband Progress Report at para. 32 (“Consumers increasingly are choosing higher quality video services that demand increased bandwidth, and projections show new video service options and substantial growth in this area.”). Currently, video is the dominant form of traffic on the Internet, with estimates that traffic from Netflix and YouTube constitutes approximately 50 percent of peak Internet download traffic. Sandvine Report: Netflix and Youtube Account for 50% of All North American Fixed Network Data, Sandvine (Nov. 11, 2013), https://www.sandvine.com/pr/2013/11/11/sandvine-report-netflix-and-youtube-account-for-50-of-all-north-american-fixed-network-data.html (stating also that video is very asymmetric and requires significant bandwidth). For instance, Netflix recommends a connection speed of at least 5 Mbps to watch its content in HD, while Google has reported that at least 2.5 Mbps is needed to sustain an average YouTube HD video playback at 720p resolution. Netflix, Internet Connection Speed Recommendations, https://support.netflix.com/en/node/306 (last visited Mar. 3, 2015); see also Google Apps Administrator, Bandwidth Limits, https://support.google.com/a/answer/1071518?hl=en (last visited Jan. 5, 2015). Many project continued growth of online streaming video services on both fixed and mobile platforms. See, e.g., Letter from Jared Carlson, Director, Government Affairs and Public Policy, Ericsson, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 and 12-354 (filed Oct. 16, 2014), Attach. Ericsson Mobility Report (June 2014) at 13 (stating that in 2013, video accounted for approximately 40% of mobile data traffic, and is projected to account for more than 50% of mobile data traffic by 2019); Cisco Visual Networking Index (June 2014), http://www.cisco.com/c/en/us/solutions/collateral/service-provider/ip-ngn-ip-next-generation-network/white_paper_c11-481360.html (finding that globally, IP video traffic will be 79 percent of all consumer Internet traffic in 2018, up from 66 percent in 2013). See, e.g., Akamai Comments at 4 (“At any given time Akamai delivers between 15-30% of all web traffic, resulting in over two trillion interactions delivered daily.”). See, e.g., Netflix, Netflix Open Connect, https://openconnect.itp.netflix.com/index.html (last visited Jan. 5, 2015); Google Peering & Content Delivery, Google Caching Overview, https://peering.google.com/about/ggc.html (last visited Jan. 5, 2015). Joint Application of Time Warner Cable and Comcast Corp., MB Docket 14-57, at 36 (filed April 8, 2014) (“Comcast and TWC have independently developed their own national core backbone infrastructure.”); Verizon/MCI Merger Order, 20 FCC Rcd at 18495, para. 116 (“Based on the record evidence, we find that there likely are between six and eight Tier 1 Internet backbone providers based on the definition of Tier 1 backbones that has been used in the past: AT&T, MCI, Sprint, Level 3, Qwest, Global Crossing, and likely SAVVIS and Cogent.”). See William Norton, The Evolution of the U.S. Internet Peering Ecosystem, Dr. Peering, http://drpeering.net/white-papers/Ecosystems/Evolution-of-the-U.S.-Peering-Ecosystem.html (“Peering has the benefit of lower latency, better control over routing, and may therefore lead to lower packet loss.”). See, e.g., Verizon Reply at 58 (“In fact, today the majority of traffic destined for our end-user subscribers is delivered to Verizon over paid, direct connections with CDNs and large content providers, not over connections with our traditional, settlement-free peering partners.”); Body of European Regulators for Electronic Communications, An Assessment of IP Interconnection in the Context of Net Neutrality at 47 (Dec. 6, 2012), http://berec.europa.eu/eng/document_register/subject_matter/berec/download/0/1130-an-assessment-of-ip-interconnection-in-t_0.pdf (BEREC Report); Netflix Petition to Deny, MB Docket No.14-57, Attach. A at 3 (Ken Florance states, “CDNs also can reduce the transit costs paid by terminating access networks (where such networks pay for transit), because more content is stored within or near the terminating access network and so does not need to be retrieved remotely.”). J. Scott Marcus, The Economic Impact of Internet Traffic Growth on Network Operators at 4, WIK-Consult (Oct. 24, 2014), http://dx.doi.org/10.2139/ssrn.2531782 (“Very few ISPs are able, however, to use peering to reach all Internet destinations. Even well-connected ISPs typically purchase transit from one or two other ISPs in order to reach destinations that are not covered by their own peering arrangements.”) (emphasis in original). See, e.g., Level 3 Issues Statement Concerning Internet Peering and Cogent Communications, PR Newswire, (Oct. 7, 2005), http://www.prnewswire.com/news-releases/level-3-issues-statement-concerning-internet-peering-and-cogent-communications-55014572.html (indicating the dispute lasted several days); Martin A Brown, Clint Hepner, Alin Popescu, Internet Captivity and the De-Peering Menace: Peering Wars: Episode 1239.174, at 15 (Jan. 2009), http://research.dyn.com/wp-content/uploads/2014/07/nanog-45-Internet-Peering.pdf (stating that the outage lasted 3 days); Press Release, Sprint and Cogent Reach Agreement on Exchange of Internet Traffic, (Dec. 22, 2008), http://www.cogentco.com/news/press-releases/149-sprint-and-cogent-reach-agreement-on-exchange-of-internet-traffic (indicating the dispute lasted several days). See MLab ISP Interconnection Report at 4 (observing sustained performance degradation experienced by customers of AT&T, Comcast, CenturyLink, Time Warner Cable, and Verizon when their traffic passed over interconnections with transit providers Cogent, Level 3, and XO Communications); Measuring Internet Congestion: A Preliminary Report, MIT Information Policy Project (June 2014); Matthew Luckie, Amogh Dhamdhere, Bradley Huffaker, Young Hyun, Steve Bauer, Internet Interdomain Congestion at 10 (Feb. 2014), http://www.caida.org/publications/presentations/2014/bitag-congestion/bitag-congestion.pdf. See, e.g., Netflix, The Case Against ISP Tolls (Apr. 24, 2014), http://blog.netflix.com/2014/04/the-case-against-isp-tolls.html; Comcast, Comcast Response to Netflix (Apr. 24, 2014), http://corporate.comcast.com/comcast-voices/comcast-response-to-netflix; Paresh Dave, Netflix, Time Warner Cable reach deal on streaming quality, L.A. Times (Aug. 20, 2014), http://www.latimes.com/business/technology/la-fi-tn-netflix-time-warner-cable-20140820-story.html; AT&T Public Policy Blog, Who Should Pay for Netflix? (Mar. 21, 2014), http://www.attpublicpolicy.com/consumers-2/who-should-pay-for-netflix/; Verizon Policy Blog, Level 3’s Selective Amnesia on Peering (July 21, 2014), http://publicpolicy.verizon.com/blog/entry/level-3s-selective-amnesia-on-peering; Level 3 Communications Blog, Verizon’s Accidental Mea Culpa (July 17, 2014), http://blog.level3.com/open-internet/verizons-accidental-mea-culpa/. Letter from Sarah J. Morris, Senior Policy Counsel, Open Technology Institute, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, MB Docket No. 14-57 (filed Nov. 18, 2014), Attach. Open Technology Institute, “Beyond Frustrated”: The Sweeping Consumer Harms As a Result of ISP Disputes, at 2 (Nov. 2014) (OTI Consumer Harms Policy Paper). Id. ; Letter from Michael J. Mooney, Senior Vice President and General Counsel, Regulatory Policy, Level 3, to Marlene H. Dortch, Secretary, FCC, WC Docket No. 05-25, GN Docket Nos. 14-28, 09-191, at 2 (filed Nov. 19, 2014) (Level 3 Nov. 19, 2014 Ex Parte Letter) (explaining that congested interconnection points result in “dropped packets and a degraded consumer experience”); Sandoval Ex Parte Letter, Attach. at 22-24 (reporting slow connection speeds during the Comcast-Cogent traffic exchange dispute, and explaining that other applications that were affected included gaming, VPN, and VoIP (including compliance with 911 standards)). OTI Consumer Harms Policy Paper at 1-5. See, e.g., Sandoval Ex Parte Letter, Attach. at 24 (asserting, for example, that difficulties in using interconnected VoIP service amidst a broadband provider dispute with a server host or content provider raise grave concerns about public safety and network reliability). See, e.g., Letter from Markham C. Erickson, Counsel to Netflix, Inc. to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. at 2 (filed Aug. 1, 2014) (Netflix Aug. 1, 2014 Ex Parte Letter) (asserting that “[i]n the case of Comcast, Netflix purchased all available transit to reach Comcast’s network. Every single one of those transit links to Comcast was congested (even though the transit providers requested extra capacity). The only other available routes into Comcast’s network were those where Comcast required an access fee.”); Letter from Robert M. Cooper, Counsel to Cogent, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Mar. 19, 2014) (Cogent Mar. 19, 2014 Ex Parte Letter); Letter from Joseph C. Cavender, Level 3, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed May 13, 2014) (Level 3 May 13, 2014 Ex Parte Letter) (asserting that “some of the biggest consumer broadband ISPs have allowed the interconnections between their networks and backbone providers like Level 3 to congest, causing packets to be dropped and harming their own users’ Internet experiences”); Netflix Comments at 14-15. But see Letter from Kathryn A. Zachem, Senior Vice President, Regulatory and State Legislative Affairs, Comcast, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2 (filed Nov. 10, 2014) (Comcast Nov. 10, 2014 Ex Parte Letter) (“Certainly Netflix would not have entered into direct agreements with Comcast, Verizon, Time Warner Cable, and AT&T unless doing so provided economic advantages over paying middlemen to reach these same companies—and of course, these arrangements have in turn reduced Netflix’s need for Cogent’s and other transit providers’ services, not only reducing Netflix’s costs but freeing up transit capacity for other entities.”). See Internet Association Comments at 22; COMPTEL Comments at 25; Netflix Comments at 12 (arguing that its dispute with Comcast shows how a broadband provider “can use its terminating access monopoly to harm edge providers, its own customers, and the virtuous circle by discriminating at interconnection and peering points”); Netflix Reply at 6 (“From a consumer’s perspective, whether degradation occurs on the last mile or at the interconnection point to the last mile is a distinction without a difference. Both impede a consumer’s access to the online content she has requested.”); OTI Reply at 11-12; Cogent Mar. 19, 2014 Ex Parte Letter at 1 (“While some large edge providers may be able to pay a toll to create a way around such congestions, smaller firms will not, thereby driving consumers to use better performing, vertically integrated content and stifling the investment and innovation that has been the hallmark of the Internet since its inception.”); Netflix Aug. 1, 2014 Ex Parte Letter, Attach. at 1. See, e.g., OTI Consumer Harms Policy Paper at 3 (“Cogent and Netflix argued that they paid their fair share by bringing the data to Comcast’s front door.”). See, e.g., Cogent Mar. 19, 2014 Ex Parte Letter at 1 (stating that “capital expenditures required to remedy congestion at interconnection points are extremely modest”); Level 3 Comments at 12 (“Adding and maintaining cross-connects in these locations is not a significant cost. Moreover, the cost of adding additional ports, if ones are needed, is quite modest. The costs of physical interconnection facilities do not come near to accounting for the amount of tolls sought by the large mass-market retail ISPs.”). Netflix Aug. 1, 2014 Ex Parte Letter, Attach. at 2. See, e.g., ARC Comments at 15; AARP Comments at 18; Access Comments at 19; eBay Comments at 5; Letter from Michael A. Forscey, Counsel for WGAW, Inc. to Marlene H. Dortch, WC Docket No. 14-28, at 2 (filed July 31, 2014) (WGAW July 31, 2014 Ex Parte Letter); Jon Peha Comments at 11-12 (urging the Commission to consider greater transparency in interconnection); Level 3 Comments at 2 (stating that “establishing rules addressing ‘direct’ charges imposed by [broadband providers] on edge providers but not for ‘indirect’ charges levied on the edge providers’ [broadband providers] through interconnection is a roadmap for evasion of new Open Internet rules”); Cogent Comments at 7 (“Without addressing traffic exchanges between last-mile broadband [providers] and other networks, the Commission would perpetuate a loophole that would swallow the rule.”); Netflix Comments at 2-3 (asserting that “[f]ailing to address interconnection abuse by terminating [broadband providers] will undermine the efficacy of any open Internet or consumer protection rule that the Commission adopts”); id. at 11, 17-18; Netflix Reply at 9; Writers Guild of America, East Comments at 5 (stating that “as long as there are only one or two viable ISPs in any given market, and as long as those ISPs are free to make anti-competitive arrangements with edge providers and others that are positioned farther up the road and not on the ‘last mile,’ the bedrock principles of openness and nondiscrimination will be unenforceable”); COMPTEL Comments at 26 (“The same economic forces that threaten the openness of [a] consumer’s last-mile broadband connection are present at the point of interconnection.”); id. at 26-30; WISPA Comments at 26; Level 3 Nov. 19, 2014 Ex Parte Letter at 1-2. See, e.g., Verizon Reply at 63; Letter from Robert C. Barber, AT&T to Marlene H. Dortch, Secretary, FCC, WC Docket No. 10-90, CC Docket No. 01-92, GN Docket No. 14-28, Attach. at 15-19 (filed July 30, 2014) (AT&T July 30, 2014 Ex Parte Letter). See, e.g., Letter from Craig A. Gilley, Counsel for Mediacom Communications Corporation, to Marlene H. Dortch, Secretary, FCC, MB Docket No. 10-71, GN Docket No. 14-28, at 2 (filed Jun. 12, 2014) (Mediacom Jun. 12, 2014 Ex Parte Letter) (stating that “if the large edge providers that benefit the most from the investment that Mediacom and other ISPs make in their broadband networks, then there should be nothing wrong with requiring them to bear their fair share of the burden of such upgrades”). But see Netflix Aug. 1 Ex Parte Letter, Attach. at 2 (stating that Netflix “incurs the cost of moving Netflix content long distances, closer to the consumer, not the broadband Internet access provider”). See, e.g., AT&T Reply at 105-106; Comcast Reply at 37; Mediacom Jun. 12, 2014 Ex Parte Letter at 2 (“ISPs and consumers should not be the sole parties bearing the costs for network improvements required for consumers to access large edge provider services.”); Verizon Reply at 63 (“Instead of Netflix—and ultimately its users—bearing the costs of the capacity needed to accommodate the increased traffic caused by Netflix’s streaming video service, all of an ISP’s customers would have to pay more, even if they never use Netflix or stream movies at all.”). See AT&T July 30, 2014 Ex Parte Letter, Attach. at 3 (explaining that peering is a “commercially negotiated barter transaction” where “parties’ perceived value of arrangement is equal”); AT&T Reply at 95, n.343. See, e.g., Verizon Reply at 59-60 (“The breadth and variety of the voluntary Internet interconnection agreements . . . reflect that the market for Internet interconnection has been and continues to be a resounding success. Although there are occasionally bumps in the road as content providers and networks grapple with the effects of newer business models, new services, shifting traffic flows, or growing volume—such as the introduction of Netflix’s streaming video service in 2007 and the rapid growth of that traffic in subsequent years—the players in the Internet ecosystem have been able to resolve issues through negotiations for new types of interconnection arrangements rather than in contentious, drawn-out proceedings before the Commission.”); AT&T Reply at 98-99; TWC Comments at 23, 30; Verizon Comments at 70-73; CEA Comments at 11. But see, e.g., Level 3 Comments at 15 (stating the Commission should adopt an interconnection rule where “large mass-market retail ISPs must interconnect with content companies and backbone providers without charging them a toll, but those content and backboned companies must also do their fair share of the work to deliver content to the ISP”); Netflix Comments at 17 (stating the Commission should adopt a rule that “terminating ISPs cannot charge data sources for interconnection and must provide adequate no-fee interconnection to wholesalers and Internet services so consumers experience the broadband speeds for which they have paid”); Letter from Joshua Stager, Counsel for Open Technology Institute to Marlene H. Dortch, WC Docket No. 14-28, at 2 (filed Dec. 22, 2014) (OTI Dec. 22, 2014 Ex Parte Letter) (stating that the Commission should “create a measurement regime to analyze congestion along critical interconnection points. . . . [and] ban fees for access to last-mile networks”). We decline to adopt these and similar types of proposals for the same reasons we decline to apply the open Internet rules to traffic exchange. For instance, Akamai expresses concern that adoption of rules governing interconnection could be used as a justification by some broadband providers to refuse direct interconnection to CDNs and other content providers generally, on the theory that connecting with any CDN necessitates connecting with all CDNs, regardless of technical feasibility. We do not intend such a result by our decision today to assert authority over interconnection. See Letter from Scott Blake Harris, Counsel to Akamai, to Marlene H. Dortch, Secretary, FCC, GN Docket No.14-28, at 1 (filed Feb. 20, 2015) (“If the Order is unclear, ISPs may believe they must provide access to all. This is not technically feasible and the result could be access for none, which would decrease the performance, scalability, reliability and security of the Internet.”). See, e.g., Cox Comments at 16 (“Internet traffic-exchange arrangements . . . present a distinct and significantly more complex set of issues than the delivery of Internet content and services over a single network operator’s last-mile facilities.”). See, e.g., Letter from New America Foundation, Media Access Project, Free Press, to Dep’t of Justice and FCC, GN Docket Nos. 10-127, 09-191, MB Docket No. 10-56, WC Docket No. 07-52, at 2 (filed Dec. 8, 2010) (“The Recent Dispute Between Comcast and Level 3 Illustrates Emerging Concerns Regarding Interconnection Practices and Highlights the Need for Federal Oversight of Interconnection.”); ARCEP, French Regulator for Telecommunications, Public Administrations’ Approach to IP-Interconnection, (June 20, 2012) (seeking to “better understand the market and monitor its evolutions”). We note, however, that the Commission has looked at traffic exchange in the context of mergers and, sometimes imposed conditions on traffic exchange. See, e.g., Comcast/NBCU Merger Order, 26 FCC Rcd 4238; Verizon/MCI Merger Order, 20 FCC Rcd 18433. See, e.g., Akamai Comments at 7 (stating that “the projected exponential growth of Internet traffic” will make the ability of market participants to develop innovative traffic exchange solutions “increasingly important to the robust functioning of the Internet”); Cox Reply at 21-22; NCTA Comments at 81 (“[T]he constantly evolving and technically complicated nature of these agreements is all the more reason for the Commission to allow market forces to determine their terms.”). See generally 47 U.S.C § 152(b) (“nothing in this Act . . . shall be construed to modify, impair, or supersede the applicability of any of the antitrust laws”). We disagree with commenters who argue that arrangements for Internet traffic exchange are private carriage arrangements, and thus not subject to Title II. See, e.g., Letter from William H. Johnson, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 7-8 (filed Dec. 17, 2014) (Verizon Dec. 17, 2014 Ex Parte Letter); Letter from Matt Wood, Free Press, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2 (filed Feb. 11, 2015). As we explain below in today’s Declaratory Ruling, Internet traffic exchange is a component of broadband Internet access service, which meets the definition of “telecommunications service.” See infra para. REF _Ref410923696 \r \h \* MERGEFORMAT 338. See 47 U.S.C. §§ 201(b), 202(a). See Letter from Austin C. Schlick, Director, Communications Law, Google, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 at 3 (filed Feb. 20, 2015) (Google Feb. 20, 2015 Ex Parte Letter). We note that the Commission has forborne from application of many of the requirements of Title II to broadband Internet access service. See infra Section V. See supra Sections III.B.2.a, III.C. We observe that should a complaint arise regarding BIAS provider Internet traffic exchange practices, practices by edge providers (and their intermediaries) would be considered as part of the Commission’s evaluation as to whether BIAS provider practices were “just and reasonable” under the Act. See Letter from Robert M. Cooper, Counsel for Cogent, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2 (filed Feb. 11, 2015) (“Cogent takes no issue with having its interconnection practices subject to the same standards as mass market broadband Internet access providers.”); Verizon Dec. 17, 2014 Ex Parte Letter at 3 (asserting that “Netflix, Cogent, and numerous other Internet players make decisions on their own networks that affect the speeds or performance that end users experience”); Letter from Kathryn A. Zachem, Senior Vice President, Comcast to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 at 5 (filed Jan. 23, 2015) (Comcast Jan. 23, 2015 Ex Parte Letter) (“[W]here the Commission has sought to regulate only one party to an interconnection arrangement, the result has been ineffective and an invitation to arbitrage. Indeed, recent efforts to regulate interconnection in the voice arena—including both the Commission’s adoption of rules governing non-access traffic exchanged between LECs and CMRS carriers and pending proposals regarding IP-to-IP interconnection—recognize that the public interest typically is best served by the imposition of at least certain reciprocal obligations on both parties to an interconnection arrangement.”); Letter from Samuel L. Feder, on behalf of Charter, GN Docket Nos. 14-28, 10-127, 07-245, at 1-2 (filed Feb. 4, 2015) (“[T]he Commission [should] not regulate Internet interconnection, but if it does so (whether via rules or on a case-by-case basis), it should make clear that it will police the actions of edge providers and others in the Internet ecosystem equally to those of ISPs.”). See infra paras. REF _Ref412367383 \r \h 210- REF _Ref412367390 \r \h 212. Verizon claims that “in light of the Commission’s past statements on interconnection, to suddenly regulate [interconnection] agreements for the first time in a final rule in this proceeding would violate the notice and comment requirements of the Administrative Procedure Act” and that even issuing a Further Notice of Proposed Rulemaking would not allow the Commission to impose Title II regulations on interconnection services. Verizon Dec. 17, 2014 Ex Parte Letter at 3; Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 8 (filed Jan. 14, 2015) (NCTA Jan. 14, 2015 Ex Parte Letter) (“[T]he NPRM does not provide notice of any proposal to adopt any new Internet traffic-exchange regulations pursuant to Title II . . . . Nowhere did the Commission remotely indicate that it was considering classifying the distinct wholesale Internet traffic-exchange services that ISPs provide to other network owners as Title II telecommunications services. The Administrative Procedure Act therefore bars the Commission from subjecting such arrangements to regulation under Title II.”). The dissenting statements likewise assert that the 2014 Open Internet NPRM did not provide notice of the possibility that the Commission would assert authority over interconnection. See, e.g., O’Rielly Dissent at 10. See Syncor Int’l v. Shalala, 27 F.3d 90, 94 (D.C. Cir. 1997) (distinguishing that a change in interpretative rule depends on whether interpretation is of a rule or a statute, since in the latter case agency does not claim to be exercising authority to make positive law). See 2014 Open Internet NPRM, 29 FCC Rcd at 5582, para. 59; id. at 5615, paras. 151-152. Section 553 provides that “[g]eneral notice of proposed rulemaking shall be published in the Federal Register,” and that “[a]fter notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making” through submission of comments. 5 U.S.C. § 553(b), (c). The Commission published the NPRM in the Federal Register on July 1, 2014. 79 Fed. Reg. 37448 (July 1, 2014). 2014 Open Internet NPRM, 29 FCC Rcd at 5615, para. 151 (“We seek comment on whether and, if so how, the Commission should separately identify and classify a broadband service that is furnished by broadband providers’ to edge providers in order to protect and promote Internet openness.”) id. at para. 149 (“We now seek further and updated comment on whether the Commission should revisit its prior classification decisions and apply Title II to broadband Internet access service (or components thereof.”). 2014 Open Internet NPRM, 29 FCC Rcd at 5582, para. 59. Public Service Comm'n of D.C. v. FCC, 906 F.2d 713, 718 (D.C. Cir. 1990). Contra NCTA Jan. 14, 2015 Ex Parte Letter at 8, n.28 (“[T]he NPRM explained that the Commission understood the latter proposals to ‘include the flow of Internet traffic on the broadband providers’ own network, and not how it gets to the broadband providers’ networks.’ . . . The Commission cannot now assert that regulating the exchange of Internet traffic between two networks is a logical outgrowth of the NPRM, given that it expressly disclaimed any such intent.”) (emphasis included in original). See, e.g., COMPTEL Comments at 9-10; eBay Comments 5; Level 3 Comments at 12-14; Netflix Comments at 11-12; Writers Guild of America, West Comments at 17; AT&T Reply at 93; CenturyLink Reply at 10; Comcast Reply at 38; Cox Reply at 20; Verizon Reply at 57; NCTA Dec. 23, 2014 Ex Parte Letter at 22-25; Cox Feb. 4 Ex Parte Letter at 1-2. See, e.g., N.E. Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004) (per curiam) (rejecting a notice challenge when the record revealed that multiple parties had in fact anticipated the possibility of the agency’s action); Alto Dairy v. Veneman, 336 F.3d 560, 570 (7th Cir. 2003) (notice adequate where industry insiders would have understood proposals under consideration even though they were “gobbledygook to an outsider”); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547-48 (D.C. Cir. 1983); BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 644 (1st Cir. 1979), cert. denied, 444 U.S. 1096 (1980); Rybachek v. EPA, 904 F.2d 1276, 1287-88 (9th Cir. 1990) (imposing mandatory requirement based on strong recommendations in public comments was “logical outgrowth” of case-by-case requirement originally proposed); see also Letter from Markham C. Erickson, Counsel for COMPTEL, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 8-10 (filed Feb. 19, 2015). See 2014 Open Internet NPRM, 29 FCC Rcd at 5582, para. 60; see also 2010 Open Internet Order, 25 FCC Rcd at 17966, para. 114. (“We would also be concerned by any marketing, advertising, or other messaging by broadband providers suggesting that one or more specialized services, taken alone or together, and not provided in accordance with our open Internet rules, is ‘Internet’ service or a substitute for broadband Internet access service.”). See, e.g., Bright House Comments at 19 (“The Commission should certainly be free to continue monitoring specialized services, but there is no basis for expanding the scope of the rule to cover specialized services.”); Utilities Telecom Council Reply at 3 (“UTC encourages the Commission to clarify that specialized services are outside of the scope of the Commission’s Open Internet rules and that broadband Internet service providers may provide priority access via specialized services and during emergencies.”). 2010 Open Internet Order, 25 FCC Rcd at 17965, para. 112 (“These ‘specialized services,’ such as some broadband providers’ existing facilities-based VoIP and Internet Protocol-video offerings, differ from broadband Internet access service and may drive additional private investment in broadband networks and provide end users valued services, supplementing the benefits of the open Internet.”); see also, e.g., CenturyLink Comments at 22-23 (“[S]pecialized services such as IPTV and facilities-based VoIP rightly fall outside the scope of the Commission’s Open Internet rules. These services should continue to be excluded from the rules.”); Letter from Christopher S. Yoo to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 09-191, 10-127, at 1 (Sept. 22, 2014) (“[S]pecialized services are essential to many commonplace services such as IP video and voice over LTE.”). 2010 Open Internet Order, 25 FCC Rcd at 17933, para. 47 n.149. See, e.g., Sandvine Comments at 8; Syntonic Reply at 11; Letter from Brian Hendricks, Head of Technology Policy and Government Relations, Nokia to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 et al, at 1 (filed Dec. 12, 2014) (“[T]he ability to create specialized classes of services is critical to the development of technologies requiring very low latency, large throughput, and minimal packet loss including autonomous driving and streaming of live broadcast events.”); Letter from William Johnson, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Oct. 17, 2014) (“As technology evolves, future specialized services could include things like telehealth, connected car, Smart Grid, and a wide range of machine-to-machine services that are distinct from mass market Internet access.”). See also General Motors, OnStar: Safe & Connected, Innovation: Design & Technology, http://www.gm.com/vision/design_technology/onstar_safe_connected.html (last visited Feb. 1, 2015); Amazon, Kindle, https://www.amazon.com/gp/digital/fiona/kcp-landing-page?ie=UTF8&ref_=klp_f_win (last visited Feb. 1, 2015); WikimediaFoundation, Wikipedia Zero, http://wikimediafoundation.org/wiki/Wikipedia_Zero (last visited Feb. 1, 2015). Open Internet Advisory Committee, 2013 Annual Report (Aug. 20, 2013), at 69, http://transition.fcc.gov/cgb/oiac/oiac-2013-annual-report.pdf (2013 OIAC Annual Report). 2010 Open Internet Order, 25 FCC Rcd at 17966, para. 113. Further, we anticipate that consumers of competing over-the-top services will not be disadvantaged in their ability to access 911 service. See, e.g., Verizon Comments at 76 (“Specialized services are by definition distinct from the customer’s broadband Internet access service – they merely supplement such service, increasing the range of options available to the consumer and expanding consumer welfare . . . As technology advances and turns concepts such as remote surgery, distance-learning, and the Internet of Things into realities, the ability to offer specialized services could be critical to promoting consumer interests and national policy priorities.”); ITIC Comments at 7 (“Specialized services should also be permitted so long as they do not adversely affect the provision of a robust and evolving basic Internet access tier to consumers or harm competition.”); TIA Reply at 12 (“[W]ith new cloud storage and services hosting capabilities and increased security and privacy features, the processing and transmission components of these services are increasingly intertwined, which would make the application of such rules [to specialized services] complex.”). 2010 Open Internet Order, 25 FCC Rcd at 17965, para. 112; Letter from Maggie McCready, Vice President Federal Regulatory Affairs, Verizon to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Dec. 5, 2014) (Verizon Dec. 5, 2014 Ex Parte Letter) (“These services are rapidly evolving and offer the promise of more choice for consumers.”); Letter from Henry Hultquist, AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 1 (filed Jan. 29, 2014) (“Without the opportunity to offer services like IP video, broadband providers would invest less and consumer would pay more for broadband Internet access.”); TIA Comments at 3 (“[T]here is no need for the FCC to change course away from simply monitoring the development of specialized services. These offerings, which may share the same last-mile connections as broadband Internet access service, can help spur investment in broadband facilities.”); MIT Media Lab Comments at 2-3 (“As long as non-discriminatory Internet access is available, we see no reason to prevent the addition of other specialized, for-fee services. Nor do we see the need to restrict a vibrant market in developing and implementing them.”); Comcast Reply at 8, n.17 (“[E]xtending open Internet rules to any services that do not meet the definition of mass market broadband Internet access could produce harmful results.”). See, e.g., CEA Comments at 11-12 (“There has been no evidence that the specialized services exemption was used to circumvent the open Internet rules when they were in effect, and there is no basis to diverge from the approach the Commission took in 2010.”); CenturyLink Comments at 22-23 (“[T]here is no evidence of problems in implementing this exclusion.”); AT&T Reply at 110-11. See, e.g., Jon Peha Comments at 9-10 (stating that without defining “specialized services,” the non-BIAS data service exemption can create a loophole that can threaten the open Internet); European Digital Rights Comments at 4 (“Any definition of ‘specialised services’ must be robust enough to prevent a ‘back-door’ undermining of net neutrality.”); Letter from Harold Feld, Public Knowledge, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 at 24 (filed Dec. 19, 2014) (Public Knowledge Dec. 19, 2014 Ex Parte Letter) (“As new services evolve, the Commission must prevent ISPs from using specialized services as an excuse to delay upgrades and extract rents from new innovations.”); see also Open Internet Advisory Committee, Specialized Services Working Group, Video Set Top Box Case Study Summary, at 6 (2013), http://transition.fcc.gov/cgb/events/Specialized-Services-Set-Top-Box-5-7-13.pdf (noting how particular attributes of a service might characterize it as a non-BIAS data service or a Title VI IP-based cable service depending on the circumstances). See, e.g., Microsoft Comments at 28 (“[M]onitoring will allow the Commission to respond to any concerns that arise in connection with specific practices without unduly hampering providers’ ability to innovate in the provision of specialized services generally.”). 2010 Open Internet Order, 25 FCC Rcd at 17938-39, para. 56. See supra Section III.C.3. See, e.g., Access Comments at 10 (“[A] strict definition of specialized services can mitigate the risks.”); Future of Music Coalition Reply at 5 (“Without narrow and clear definitions of ‘specialized services,’ development would slow and artists and the public would be deprived of potentially rewarding technologies.”). But see CCIA Reply at 18 (“[T]he so-called ‘Specialized Services’ exemption is cause for concern. CCIA has stated that no reasonable definition of ‘Specialized Services’ is possible, and that the Commission’s resources would be better devoted to locking down the ‘reasonable network management’ standard as the means by which BIAPs can justify any challenged conduct.”). See, e.g., CDT Comments at 23 (“First, there should be a requirement that the service be truly specialized, in the sense of serving a specific and limited purpose. Second, there should be a technical requirement of logical separation – that is, wholly or significantly separate capacity – between the specialized traffic and the Internet traffic.”); Nokia Comments at 12 (“‘Specialised services’ are designed for specific content, applications, or services, or a combination thereof. Such services rely on traffic management or other networking techniques to ensure the desired or necessary level of network resources that determine subscriber experience (such as capacity, quality) with the aim to securing enhanced quality characteristics. They are delivered from end-to-end and are not marketed as or widely used as a substitute for Internet access service.”). See, e.g., ETNO Comments at 4 (“We believe that the FCC chooses a future‐proof path by not formally defining ‘specialized services.’”); MIT Media Lab Comments at 2-3 (“As long as non-discriminatory Internet access is available, we see no reason to prevent the addition of other specialized, for-fee services. Nor do we see the need to restrict a vibrant market in developing and implementing them.”); TIA Comments at 30 (“[S]pecialized services can help to spur investment in broadband facilities,” and “[r]egulatory intervention in this nascent area would suppress these innovative enhancements to consumer welfare.”). 2014 Open Internet NPRM, 29 FCC Rcd at 5583, para. 61. 47 C.F.R. § 8.5. 47 C.F.R. § 8.11(d); 2010 Open Internet Order, 25 FCC Rcd at 17952, para. 82. See, e.g., OTI Comments at 57 (“[R]egardless of its source of statutory authority, the Commission should apply its open Internet protections ‘subject to reasonable network management.’”); CenturyLink Comments at 23 (“There is also no evidence of a problem with implementing this exception following the Commission’s 2010 Open Internet Order.”); CDT Comments at 7. As discussed above, the transparency rule does not include an exception for reasonable network management. We clarify, however, that the transparency rule “does not require public disclosure of competitively sensitive information or information that would compromise network security or undermine the efficacy of reasonable network management practices.” See 2014 Open Internet NPRM, 29 FCC Rcd 5583, para. 61; 2010 Open Internet Order, 25 FCC Rcd at 17937-38, para. 55. See Prepared remarks of FCC Chairman Tom Wheeler, 2014 CTIA Show, Las Vegas, NV (Sept. 9, 2014). See 2010 Open Internet Order, 25 FCC Rcd at 17952, para. 82 (defining “particular network architecture and technology” as referring to “the differences across access platforms such as cable, DSL, satellite, and fixed wireless”). Paid prioritization would be evaluated under the standards set forth in Section II.C.1.c supra. For purposes of the open Internet rules, prioritization of affiliated content, applications, or services is also considered a form of paid prioritization. See supra Section III.C.1.c. See 2014 Open Internet NPRM, 29 FCC Rcd at 5583, para. 61. The Commission decided to determine the scope of reasonable network management on a case-by-case basis in the Open Internet Order and we maintain those same factors today. See 2010 Open Internet Order, 25 FCC Rcd at 17952-56, paras. 84-92. See, e.g., CDT Comments at 9 (“[R]ules in this area should not be rigid. They should not attempt to specify in advance which particular technical practices should be prohibited or allowed. Detailed technical choices are best left to network operators, since they are in the best position to understand the technical consequences and tradeoffs associated with different choices. Network operators also need appropriate flexibility to devise new tactics and respond to new threats.”); CenturyLink Comments at 23 (“The NPRM also correctly concludes that the Commission should retain the existing reasonable network management practices exception to its Open Internet rules and continue to develop the scope of that exception on a case-by-case basis. This exception is critical to ensuring that broadband providers have the flexibility to manage their networks in a way that maintains network security and integrity, addresses harmful traffic, and mitigates against the effects of congestion.”); ITIF Reply at 14 (“Applying strict neutrality rules, dictating traffic management in the lower layers of a wireless network, is largely unworkable.”); TIA Comments at 3 (advocating for “an expansive definition of ‘reasonable network management’ that reflects the nature and needs of contemporary broadband Networks”); Alcatel-Lucent Comments at 17 (“[T]he Commission should continue to allow reasonable network management practices coupled with disclosure policies that provide consumers with the appropriate level of transparency into these practices.”). But see CTIA Reply at 26 (noting that it would not be “sufficient to rely on a ‘reasonable network management’ exception to warrant application of [the no-blocking rule] – as described below, that approach would necessarily chill innovation and harm, not help, consumers”). See supra Section III.C.3. See 2010 Open Internet Order, 25 FCC Rcd at 17952-53, para. 84, n.262 (citing 47 C.F.R. §1.2 which provides for “a declaratory ruling terminating a controversy or removing uncertainty”); see also infra Section III.E.2.a.ii. See 2010 Open Internet Order, 25 FCC Rcd at 17954, para. 88; see also, e.g., Financial Service Roundtable Reply at 3 (stating that the open Internet rules should “allow ISPs to block cyber attacks or similar threats to information systems or networks that are transiting their systems, regardless of the traffic stream’s ultimate destination”); EFF Reply at 12 (stating that broadband providers’ “blocking content that would actually harm their network (e.g. DDOS attacks) . . . would obviously fall into the category of reasonable network management”). See 2010 Open Internet Order, 25 FCC Rcd at 17954-55, paras. 88-90. See id. at 17954, para. 87 (stating that the principles guiding case-by-case evaluations of network management practices include “transparency, end user control, and use- (or application-) agnostic treatment”); id. at 17945, para. 73 (elaborating upon the concept of “use-agnostic” discrimination); see also Mozilla Reply at 22 (stating that the Commission’s conception of reasonable network management could “separate application-specific from application-agnostic discrimination”). As in the no throttling rule and the no unreasonable interference or unreasonable disadvantage standard, we include classes of content, applications, services, or devices. See BITAG Congestion Report at 2, 14. 2010 Open Internet Order, 25 FCC Rcd at 17954, para. 87. See BITAG Congestion Report at 45 (“User- and application- agnostic congestion management practices are useful in a wide variety of situations, and may be sufficient to accommodate the congestion management needs of network operators in the majority of situations. . . . [and i]f application­based congestion management practices are used, those based on a user’s expressed preferences are preferred over those that are not.”); David D. Clark, John Wroclawski, Karen R. Sollins, and Robert Braden, Tussle in Cyberspace: Defining Tomorrow’s Internet, IEEE/ACM Transactions on Networking, vol. 13 no. 3 (2005) (“One of the most respected and cited of the Internet design principles is the end-to-end arguments, which state that mechanism should not be placed in the network if it can be placed at the end node, and that the core of the network should provide a general service, not one that is tailored to a specific application.”). 2010 Open Internet Order, 25 FCC Rcd at 17953, para. 85. Access Comments at 18 (“Traffic management techniques are ‘reasonable’ when deployed for the purpose of technical maintenance of the network, namely to block spam, viruses, or denial of service attacks, or to minimize the effects of congestion, whereby equal types of traffic should be treated equally . . . [and] should only be used on a temporary basis, during exceptional moments, and their impact must be necessary, proportionate and targeted to solve the particular problem [and] . . . have transparent and comprehensible disclosure for users . . . .”). MIT Media Lab Comments at 13 (“[A] more stringent view of the limitation of network management . . . insure[s] that there are no artificial or industrially created synthetic control points placed between an application and the flow of bits associated with it.”). While some commenters note that there have not been any major technological changes in how broadband providers manage traffic since 2010, others indicate that broadband providers have acquired additional techniques that allow them to manage traffic in real-time. Compare Sandvine Comments at 12 (stating that there have not been any big technological changes in how service providers can manage traffic since 2010) with Internet Association Comments at 3 (“New technologies have granted broadband Internet access providers an unprecedented ability to discriminate and block content in real time.”). Verizon Dec. 5, 2014 Ex Parte Letter at 2. Beneficial practices include protecting their Internet access services against malicious content or offering a service limited to offering “family friendly” materials to end users who desire only such content. 2010 Open Internet Order, 25 FCC Rcd at 17954-55, paras. 88-89. See, e.g., AT&T Reply at 82 (“The unique challenges presented by mobile users and the unpredictable demands placed on mobile networks due to the inherent mobility of their users require a robust set of tools that can be used to mitigate the impact of potential congestion on consumers’ experience with a network.”); id. at 80-83; OTI Comments at 57 (“A flexible approach to defining reasonable network management can accommodate exceptions appropriate to different technologies and platforms …without creating an arbitrary distinction and preference for mobile networks.”) (internal quotation marks omitted); T-Mobile Reply at 11 (“These important distinctions between fixed and mobile networks show that it would be inadvisable to impose new net neutrality rules, especially those designed for fixed networks, on mobile broadband networks.”); CDT Comments at 20 (“The allowance for reasonable network management provides ample flexibility for carriers to address any network management challenges that are specific to mobile wireless networks, so no broad exemption is warranted.”); Microsoft Comments at 27 (“[A]ny technical or operational differences between mobile and fixed networks can be accommodated by recognizing the meaning of ‘reasonable network management’ might vary depending on the particular type of network.”); Public Knowledge Comments at 24 (“[T]o the extent that a technical difference between wireless and wireline exist, reasonable network management policies can accommodate it.”); Mozilla Comments at 21 (“There remain technical distinctions between mobile and fixed networks, some of which—such as management of upload congestion—are inherent in the nature of the technologies.”); Vonage Comments at 32 (“Rather than adopt less protection, the Commission can instead distinguish between wireline and wireless under the principle of reasonable network management.”) TIA Comments at 11-15 (stating that the Commission must consider “the engineering realities of the distinctly different types of broadband platforms [wireline, cable, mobile]” when considering regulations, especially on network management”). 2010 Open Internet Order, 25 FCC Rcd at 17956, para. 94. Letter from Scott Bergmann, Vice President—Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, (filed Oct. 6, 2014), Attach., Dr. Jeffrey H. Reed and Dr. Nishith D. Tripathi, Net Neutrality and Technical Challenges of Mobile Broadband Networks at 14 (CTIA Oct. 6, 2014 Ex Parte Letter) (arguing that as channel conditions degrade (such as when a mobile user moves toward the periphery of a cell site) “[e]ven to preserve a given data rate, the user may need 36 times more radio resources”). See, e.g., TIA Reply at 8 (“The allocation [of radio resources] must factor in the number of active user devices, capabilities of these devices, capabilities of the base station in the area, prevailing channel conditions of different devices on the network, distance from the serving cell, and target QoS of different services to determine the amount of radio resources for individual users.”); Nokia Reply at 5 (“Mobile networks can be affected by physical obstructions, solar activity, electromagnetic disturbances, and distance to a much greater degree than wireline broadband networks.”); T-Mobile Comments at 5-7. T-Mobile Comments at 6. Such tools have been referenced in various ex parte filings. See, e.g., Letter from Jonathan Spalter, Chair, Mobile Future, to Marlene H. Dortch, Secretary, FCC, (filed Sept. 12, 2014), Attach., Rysavy Research, How Is Mobile Different: Considerations for the Open Internet Rulemaking at 11-12 (citing the need for adjustments to transmitted power and sustainable data rates); Letter from Scott Bergmann, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, Attach., Dr. Jeffrey H. Reed and Dr. Nishith D. Tripathi, Net Neutrality and Technical Challenges of Mobile Broadband Networks at 16, 20-21 (filed Sept. 4, 2014) (citing the need for scheduling user access to the network based upon dynamic measurements of signal quality). NCTA Dec. 23, 2014 Ex Parte Letter at 25; see also Letter from Samuel L. Feder, counsel to Cablevision, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Jan. 12, 2015) (urging that the Commission recognize Wi-Fi networks’ “specific capacity and congestion constraints” in applying any reasonable network management standard). Verizon Reply at 33. AT&T Reply at 89 (emphasis in original). 2014 Open Internet NPRM, 29 FCC Rcd at 5618, para. 161; 2010 Open Internet Order, 25 FCC Rcd at 17986, para. 151. 47 C.F.R. § 1.41. 47 C.F.R. §§ 8.12-8.17. 2010 Open Internet Order, 25 FCC Rcd at 17986, para. 153. In the 2010 Open Internet Order, the Commission established that parties could submit informal complaints pursuant to section 1.41 of the Commission’s rules\ and recommended that consumers, end users, and edge providers submit such complaints through the Commission’s website: http://esupport.fcc.gov/complaints.html. Id. See 2010 Open Internet Order, 25 FCC Rcd at 17987-89, paras. 154-59; 47 C.F.R. §§ 8.12-8.17. 2014 Open Internet NPRM, 29 FCC Rcd at 5618-23, paras. 161-76. Id. at 5619, para. 163. In addition, the Commission asked whether other elements should be considered and what forms of dispute resolution would be the best strategy to implement “data-driven decision-making.” Id. Id. at 5619, paras. 163, 165. Id. at 5619, para. 165. Id. at 5619-20, paras. 165-66. The Antitrust Division of the Department of Justice has procedures under which entities concerned about the legality under the antitrust laws of proposed business conduct may seek a statement from the Division regarding its current enforcement intentions with respect to that conduct. See 28 C.F.R. § 50.6; Dep’t of Justice, Pilot Program Announced to Expedite Business Review Process (1992), http://justice.gov/atr/public/busreview/201659a.pdf (Dep’t of Justice Business Reviews). Other federal agencies have similar advisory opinion processes. For example, the Rules of Practice of the Federal Trade Commission provide that the Commission or its staff, in appropriate circumstances, may offer industry guidance in the form of an advisory opinion. See 16 C.F.R. §§ 1.1-1.4; Fed. Trade Comm’n, Guidance From Staff of the Bureau of Competition’s Health Care Division on Requesting and Obtaining an Advisory Opinion (2010), http://www.ftc.gov/sites/default/files/attachments/competition-advisory-opinions/advop-health.pdf. 2014 Open Internet NPRM, 29 FCC Rcd at 5620, para. 167. See, e.g., Comcast Comments at 67 (“Comcast agrees with the Commission that any new enforcement procedures must ‘provide legal certainty . . . .’”); NCTA Comments at 67 (“The Commission . . . should continue to explore other ways of streamlining its enforcement procedures in a manner that provides ‘legal certainty’ to regulated entities.”); EFF Comments at 2 (The Commission “should enact clear and simple prescriptive rules . . . .”); Independent Film & Television Alliance Comments at 12 (“[T]he Commission must take the most effective actions available to it to ensure that the regulations it adopts . . . provide certainty to the public.”); Cox Comments at ii-iii (“In relying on traditional complaint-driven and agency-initiated enforcement mechanisms, the Commission’s rules also should maximize certainty and ensure options for streamlined dispute resolution.”). We decline to adopt non-binding staff opinions in light of our decision to establish an advisory opinion process similar to the DOJ Antitrust Division’s business review letter approach, as well as existing voluntary mediation processes to resolve open Internet disputes that are available through the Enforcement Bureau’s Market Disputes and Resolutions Division. See infra Section III.E.2.a.i. Parties also have the option to file a petition for declaratory ruling under section 1.2 of the Commission’s rules, 47 C.F.R. § 1.2. In contrast to declaratory rulings, advisory opinions may only relate to prospective conduct, and the Enforcement Bureau will not seek comment on advisory opinions via public notice. See id. See, e.g., Dep’t of Justice, Introduction to Antitrust Division Business Reviews at 1 (last visited Oct. 29, 2014), http://www.justice.gov/atr/public/busreview/276833.pdf (“The business review procedure benefits both the Division and the business community because the Division can analyze and comment on the possible competitive impact of proposed business conduct, possibly avoiding lawsuits or other actions.”). See, e.g., 28 C.F.R. § 50.6(2) (“The [DOJ’s Antitrust] Division will consider only requests with respect to proposed business conduct, which may involve either domestic or foreign commerce.”). See infra Appx. A (§ 8.18). As noted above, in addition to DOJ, other federal agencies also have an advisory opinion process. See supra note NOTEREF _Ref411583624 \h 594. The FTC specifies that it will consider requests for advisory opinions, where practicable, under the following circumstances: “(1) The matter involves a substantial or novel question of fact or law and there is no clear Commission or court precedent; or (2) The subject matter of the request and consequent publication of Commission advice is of significant public interest.” 16 C.F.R. § 1.1(a). See, e.g., 16 C.F.R. § 1.1(b)(1) (the FTC will ordinarily consider requests for advisory opinions inappropriate where “[t]he same or substantially the same course of action is under investigation or is or has been the subject of a current proceeding involving the Commission or another governmental agency . . . .”). See, e.g., 28 C.F.R. § 50.6(2) (“The [DOJ’s Antitrust] Division will consider only requests with respect to proposed business conduct . . . .”) (emphasis added); 16 C.F.R. § 1.1(a) (“Any person, partnership, or corporation may request advice from the [Federal Trade] Commission with respect to a course of action which the requesting party proposes to pursue.”). See, e.g., 28 C.F.R. § 50.6(5) (under the DOJ’s business review procedures, “[e]ach request must be accompanied by all relevant data including background information, complete copies of all operative documents and detailed statements of all collateral oral understandings, if any”). See, e.g., id. (“All parties requesting the review letter must provide the [DOJ Antitrust] Division with whatever additional information or documents the Division may thereafter request in order to review the matter. . . . In connection with any request for review, the Division will also conduct whatever independent investigation it believes is appropriate.”). See 18 U.S.C. § 1001; see also 47 C.F.R. § 1.17. For example, the Department of Justice’s Antitrust Division states that it will “make its best effort” to resolve business review requests within 60 to 90 days after receiving all relevant information and documents sought by the Division. See Dep’t of Justice Business Reviews at 1-2. See 16 C.F.R. § 1.3(b); see also 28 C.F.R. § 50.6(9) (“A business review letter states only the enforcement intention of the [DOJ Antitrust] Division as of the date of the letter, and the Division remains completely free to bring whatever action or proceeding it subsequently comes to believe is required by the public interest. As to a stated present intention not to bring an action, however, the Division has never exercised its right to bring a criminal action where there has been full and true disclosure at the time of presenting the request.”). See, e.g., 28 C.F.R. § 50.6(9) (“A business review letter states only the enforcement intention of the [DOJ’s Antitrust] Division as of the date of the letter, and the Division remains completely free to bring whatever action or proceeding it subsequently comes to believe is required by the public interest.”); 16 C.F.R. § 1.3(b) (“Any advice given by the [Federal Trade] Commission is without prejudice to the right of the Commission to reconsider the questions involved and, where the public interest requires, to rescind or revoke the action.”). See, e.g., American Exp. Co. v. U.S. Dep’t of Justice, 453 F. Supp. 47, 50 (S.D.N.Y. 1978) (“[28 C.F.R. § 50.6], by committing the Justice Department to state a position with respect to future enforcement plans, necessarily implies that the matter under review is not the subject of any currently pending enforcement proceedings. Rather, the opinion of the Justice Department is an ‘advisory opinion,’ a familiar term used in the legal lexicon to denote an opinion concerning a matter not yet ripe for judicial action and thus not yet before any court.”). For example, trade secrets or commercial and financial information may merit confidential treatment. See 47 C.F.R. §§ 0.457, 0.459. See, e.g., Comcast Comments at 69 (“Comcast . . . remains open to other potential mechanisms for providing guidance—such as a business-review-letter process, nonbinding staff opinions, or enforcement advisories.”); NCTA Comments at 67 (Less formal mechanisms of providing clarity on the Commission’s view of the law, including business review letters, non-binding staff opinions, or enforcement advisories “may well prove useful to regulated entities as they endeavor to comply with any new rules . . . .”); CDT Comments at 34 (“To facilitate the development of helpful guidance in the interpretation of the rules, the Commission should proceed with its suggestion in the NPRM to establish a business-review-letter approach similar to that of the Antitrust Division of the Department of Justice. Such a process would provide a way for individual companies to resolve uncertainty they may face under the rules, while accelerating the growth of a body of precedent to which other industry participants might look. It could also foster useful discussions between broadband providers and Commission staff and a more regular and informed consideration of open-Internet policy issues.”) (internal citations omitted); Cox Comments at 29 (“Cox . . . supports the NPRM’s proposal to adopt additional dispute resolution mechanisms, such as expedited, non-binding staff review informed by input from the Broadband Internet Technical Advisory Group (‘BITAG’) and/or resolution by technical advisory groups like OIAC and BITAG.”). See, e.g., CDT Comments at 33-34 (“[U]se of the business-review-letter process should be purely voluntary. There should be no expectation that broadband providers must seek permission from the Commission before changing or instituting new network management practices, and the decision by a broadband provider not to seek a business review letter should not result in any negative inference regarding the provider or its practices.”). WISPA Comments at 33; see also ADTRAN Comments at ii (“[T]he proposed enforcement processes will exacerbate the uncertainty, delay deployment of new services and further deter investment. The use of case-by-case formal complaint procedures to develop a ‘common law’ of Internet regulation under the vague rules proposed in the NPRM will not timely provide any measure of certainty or guidance. And the alternative proposals present concerns about timeliness, protection of proprietary information, no real measure of certainty and inconsistency with the current limits on delegated authority.”); id. at 33-41. WISPA Comments at 33. Id. at 33-34. See supra note NOTEREF _Ref410913281 \h \* MERGEFORMAT 613. Since January 2010, the Enforcement Bureau has periodically published enforcement advisories “designed to educate businesses about and alert consumers to what’s required by FCC rules, the purpose of those rules and why they’re important to consumers, as well as the consequences of failures to comply.” Statement of P. Michele Ellison, Chief, Enforcement Bureau on Issuance of the Bureau's First Enforcement Advisories, News Release (January 15, 2010), https://apps.fcc.gov/edocs_public/attachmatch/DOC-295749A1.pdf. 2014 Open Internet NPRM, 29 FCC Rcd at 5620, para. 167. See 2014 Advisory Guidance, 29 FCC Rcd 8606; 2011 Advisory Guidance, 26 FCC Rcd 9411. 2014 Open Internet NPRM, 29 FCC Rcd at 5620, para. 167. See, e.g., Comcast Comments at 69; NCTA Comments at 67. WISPA maintains that “any enforcement advisories should not be created in a vacuum and must be based on a public record following an opportunity for interested consumers and industry parties to submit comments.” WISPA Comments at 34. We disagree with the contention that public notice and comment should be a prerequisite for the Commission to issue an enforcement advisory. The Commission uses its rulemaking procedures when we are adopting rule changes that require notice and comment. Conversely, enforcement advisories are used to remind parties of existing legal standards. See, e.g., ADT Comments at 10-11; CenturyLink Comments at 36; Comcast Comments at 67; Hochhalter Comments at 34 (“Informal and formal complaint processes alike should be utilized. Both end users and edge providers can further enforcement efforts th[r]ough this process, and substantially lighten the FCC’s enforcement burden.”). See, e.g., Charter Comments at 34–35; NCTA Comments at 68. See, e.g., Hochhalter Comments at 34–35. See, e.g., Comcast Comments at 68. Commenters generally agree with this approach and have not offered any basis for the Commission to pursue a different enforcement regime with respect to the transparency rule. See, e.g., ADT Comments at 11. Section 706 was enacted as part of the 1996 Telecommunications Act, and it is therefore subject to any and all penalties under the Act and our rules. See Verizon, 740 F.3d at 650 (“Congress expressly directed that the 1996 Act . . . be inserted into the Communications Act of 1934.”) (quoting AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366, 377 (1999)). 47 U.S.C. § 503(b)(5). 47 C.F.R. § 1.89. 47 U.S.C. § 503(b)(4). 47 U.S.C. § 503(b). 47 U.S.C. § 312(b). 47 C.F.R. § 1.91. 47 U.S.C. § 501. We are aware of concerns expressed by some commenters that penalties need to be predictable and fair. See, e.g., WISPA Comments at 37 (“The existing rules lack any recitation of the range of sanctions or financial penalties that the Commission is authorized to impose upon a finding of a rule violation.”). The Commission views its processes as ensuring predictable and fair enforcement. All forfeiture orders over $25,000 are reviewed by the full Commission for disposition, and all past enforcement actions are publicly available for guidance. A number of commenters support this approach. See, e.g., TIA Comments at 3, 21; CenturyLink Comments at 35-36; CWA & NAACP Comments at 19-20; Verizon Comments, Attach. Katz Declaration at 24 (“Because no one has the ability to predict what will be the best network management practices and pricing and service models in the future, it is important that the Commission’s rule be flexible” and a “case-by-case (or rule-of-reason) approach can offer that flexibility.”); Comcast Comments at 67. One commenter argues that the Commission should promulgate general rules of conduct rather than relying on case-by-case adjudications. PA PUC Comments at Appx. B, 11. Other commenters expressed concerns about the cost of case-by-case adjudication. See, e.g., Future of Music Coalition Comments at 3; Meetup Comments at 7. We reject the suggestion that the Commission promulgate additional rules of conduct because it is unrealistic to expect that in this varied and rapidly evolving technological environment the agency will be able to anticipate the specific conduct that will give rise to future disputes. As for concerns about the cost of adjudications, as discussed below, we stress that our procedures will allow the Commission to simplify and streamline the complaint process, and to shift the burden of production, where appropriate, in order to minimize the time and expense of complaint proceedings. TIA Comments at 3, 21. See also CenturyLink Comments at 36 (“[T]he ‘commercially reasonable’ nondiscrimination framework proposed in the NPRM ultimately relies heavily on the backstop of a rigorous ex post process for reviewing and evaluating challenges to given practices on a case-by-case basis. A strong reliance on such a backstop, as opposed to overly prescriptive rules, is the better policy approach.”) (internal citations omitted). 2014 Open Internet NPRM, 29 FCC Rcd at 5621, para. 169. 47 C.F.R. § 1.41. 47 C.F.R. § 8.14(e)-(g); see also 2010 Open Internet Order, 25 FCC Rcd at 17987–88, para. 156 & n.490. See 47 C.F.R. § 8.14(e)(1). As we noted in the 2010 Open Internet Order, our current processes permit the Commission to shift the burden of production where appropriate. See 2010 Open Internet Order, 25 FCC Rcd at 17988, para. 157. Id. at 17988, para. 157 & n.491. Id. at 17988, para. 157. See id.; see also Consumers Union Comments at 8 (arguing that users and edge providers “may not always be aware of all of the circumstances surrounding a particular practice or negotiation”). 47 C.F.R. § 8.14(a)(2)(i). See 47 C.F.R. §§ 8.12-17. See 47 C.F.R. §§ 1.720-1.736. The section 208 rules, for example, require complainants to submit information designations, proposed findings of fact and conclusions of law, and affidavits demonstrating the basis for complainant’s belief for unsupported allegations and why complainant could not ascertain facts from any source. See, e.g., 47 C.F.R. §§ 1.721(a) (5), (6), (10). The open Internet formal complaint rules do not contain similar requirements. See supra Section III.E.2.b. For example, under the open Internet rules, the Commission may order an evidentiary hearing before an administrative law judge (ALJ) or Commission staff. See 47 C.F.R. §§ 8.14(e)(1), (g). The section 208 rules contain no such provision.  In addition, unlike the section 208 rules, the open Internet rules do not contain numerical limits on discovery requests. Compare id. § 8.14(f) with id. § 1.729(a). See, e.g., CFA Comments at 5; Cox Comments at 29; MMTC Comments at 12; WISPA comments at 37 (“[U]nless further information is required, the Commission should render a decision on any complaint within 60 days of the filing of the answer or any required supplemental information”); cf. COMPTEL Comments at 33-34 (proposing an expedited review process for informal complaints alleging violations of the Commission’s open Internet rules requiring complaints to be resolved in 90 days to “provide the necessary legal certainty for broadband providers, end users and edge providers to better plan their activities in light of clear Commission guidance”). 2010 Open Internet Order, 25 FCC Rcd at 17988, para. 158, n.494. Further, the rules permit parties to formal complaint proceedings to request expedited treatment under the Enforcement Bureau’s Accelerated Docket procedures. See 47 C.F.R. § 8.13(a)(7). See 47 C.F.R. § 8.14(e)(1). The Supreme Court has affirmed the Commission's authority to impose interim injunctive relief pursuant to section 4(i) of the Act. See United States v. Southwestern Cable Co., 392 U.S. 157, 180–181 (1968); see also 47 U.S.C. § 154(i) (“The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”); Implementation of the Telecommunications Act of 1996; Amendment of Rules Governing Procedures to Be Followed When Formal Complaints Are Filed Against Common Carriers, CC Docket No. 96-238, Report and Order, 12 FCC Rcd 22497, 22566, para. 159 & n.464 (1997) (stating that the Commission has authority under section 4(i) of the Act to award injunctive relief). See 2014 Open Internet NPRM, 29 FCC Rcd at 5621, at para. 171. See, e.g., American Association of People with Disabilities Comments at 5 (noting that an ombudsperson would allow the commission to better serve the needs of people with disabilities); COMPTEL Comments at 34 (stating support for the creation of an ombudsperson); Higher Education Libraries Comments at 20 (advocating for the inclusion of libraries in the list of groups the ombudsperson would serve); Hurwitz Comments at 4 (“The NPRM considers the creation of an ombudsperson; this proposal should be firmly embraced.”); MMTC Comments at 12 (asking that the ombudsperson serve consumers, including individuals from vulnerable populations). American Association of People with Disabilities Comments at 5. Higher Education Libraries Comments at 20. Alaska Rural Coalition Comments at 17; see also WISPA Comments at 34 (supporting the creation of an ombudsman only if they are authorized to act on behalf of small carriers as well as consumers and edge providers). See, e.g., Common Cause Comments at 11 (expressing concerns about the necessity of receiving pre-clearance by an ombudsperson); Kickstarter Comments at 2 (stating that working with an ombudsperson would be onerous); T-Mobile Comments at 26 (stating that there has been no showing of need to create an ombudsperson). See MMTC Comments at 14 (“As a general matter, the Commission’s primary focus should be to create a user-friendly form that easily can be completed and submitted by a consumer without the need for an attorney.”). The Open Internet Ombudsperson will also be available to assist parties in filing informal complaints. See supra Section III.E.2.c. The MMTC proposed applying, in the open Internet context, the Equal Employment Opportunity Commission (EEOC) complaint process set out in Title VII of the Civil Rights Act of 1964, as a way to “provide an excellent consumer-friendly means of resolving open Internet complaints rapidly, efficiently, and affordably.” Letter from David Honig, MMTC to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-51, 14-28, 09-191, MB Docket Nos. 14-109, 14-50, 09-182, 07-294, 04-256, Attach. at 6 (filed Dec. 12, 2014) (MMTC Ex Parte Letter); see also MMTC Comments at 13. Under that process, complainants, prior to seeking formal relief against a party, must submit their complaint to the EEOC, which reviews and attempts informal resolution, with subsequent formal complaints only authorized (by a “Right to Sue letter”) if informal resolution is not reached. We agree that the Title VII complaint process has benefits, including free-to-the-complainant complaint review and mediation and sequencing that encourages informal dispute resolution prior to formal lawsuits, among others. MMTC Ex Parte Letter Attach. at 2. We believe the Commission’s existing multimodal open Internet complaint processes contain these benefits as well, as they enable informal resolution of complaints and free mediation by the Enforcement Bureau’s Market Disputes Resolution Division. 47 C.F.R. Part 8. The rule changes described in this section do not apply to open Internet informal complaints. Consumers will continue to have the ability to file informal complaints electronically with the Consumer & Governmental Affairs Bureau. The form for filing an informal complaint is available at https://consumercomplaints.fcc.gov/hc/en-us. Amendment of Certain of the Commission’s Part 1 Rules of Practice and Procedure and Part 0 Rules of Commission Organization, GC Docket No. 10-44, Report and Order, 26 FCC Rcd 1594 (2011) (Part 1 Order). Id. at 1599-1600, para. 15; see also 47 U.S.C. §§ 208, 224. Amendment of Certain of the Commission’s Part 1 Rules of Practice and Procedure Relating to the Filing of Formal Complaints Under Section 208 of the Communications Act and Pole Attachment Complaints Under Section 224 of the Communications Act, GC Docket No. 10-44, Order, 29 FCC Rcd 14078 (2014). Id. at 14079-80, para. 7. In this order, the Commission also modified the rules for filing requests for confidential treatment of proprietary information to ensure that the two sets of rules were uniform and consistent with the Commission’s e-filing practices. Id. at 14080, para. 12 & n.22. We hereby amend the caption for the ECFS docket to “Section 208 and 224 and Open Internet Complaint Inbox, Restricted Proceedings.” We also amend rule 8.16, which governs confidentiality of proprietary information, to conform to the changes we made regarding confidentiality in the section 208 and section 224 complaint rules. See infra Appendix (detailing revisions to 47 C.F.R. § 8.16). All electronic filings must be machine-readable, and files containing text must be formatted to allow electronic searching and/or copying (e.g., in Microsoft Word or PDF format). Non-text filings (e.g., Microsoft Excel) must be submitted in native format. Be certain that filings submitted in .pdf or comparable format are not locked or password-protected. If those restrictions are present (e.g., a document is locked), the ECFS system may reject the filing, and a party will need to resubmit its document within the filing deadline. The Commission will consider granting waivers to this electronic filing requirement only in exceptional circumstances. See Part 1 Order, 26 FCC Rcd at 1602, para. 20 & n.61 (citing Amendment of the Commission’s Ex Parte Rules and Other Procedural Rules, Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 4517, 4531-32, para. 55 (2011) (Ex Parte Reform Order)). See infra Appx (detailing revisions to 47 C.F.R. §§ 8.13(b), 8.16). Complainants must remit filing fees for complaints in accordance with 47 C.F.R. § 1.1106. See infra Appx. A (revisions to § 8.13(b)). Complainants may transmit the complaint filing fee via check, wire transfer, or electronically using the Commission’s Fee Filer System (Fee Filer). Enforcement Bureau staff will not assign an EB file number or a separate ECFS docket number to a rejected complaint, but interested persons can locate the rejected complaint by searching for party names, dates, rule citation, or other relevant ECFS search criteria. See infra Appx. A (revisions to §§ 8.13, 8.16). See infra Appx. A (revisions to § 8.13). Parties using email service should be mindful that the Commission’s or the opposing party’s computer server may reject email attachments that are too large. See infra Appx. A (revisions to § 8.13). See 47 C.F.R. § 0.459(a)(2). See infra Appx. A (revisions to § 8.16). Id. Filers must ensure that proprietary information has been properly redacted and thus is not viewable. If a filer inadvertently discloses proprietary information, the Commission will not be responsible for that disclosure. Part 1 Order, 26 FCC Rcd at 1600-01, para. 17, n.49. See infra Appx. A (revisions to § 8.16). Id. As a general matter, the Commission lacks the ability to subdelegate its authority over these disputes to a private entity, like a third-party arbitrator, see U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004) (“[W]hile federal agency officials may subdelegate their decision-making authority to subordinates absent evidence of contrary congressional intent, they may not subdelegate to outside entities–private or sovereign–absent affirmative evidence of authority to do so”), and “may not require any person to consent to arbitration as a condition of entering into a contract or obtaining a benefit.” 5 U.S.C. § 575(a)(3). As noted in the 2014 Open Internet NPRM, however, mandatory third-party arbitration may be allowed so long as it is subject to de novo review by the Commission. See 2014 Open Internet NPRM, 29 FCC Rcd at 5622 n.354 (citing Comcast Corp., Petition for Declaratory Ruling that The America Channel is not a Regional Sports Network, File No. CSR-7108, Order, 22 FCC Rcd 17938, 17948, para. 4, n.13 (2007)); see also AAJC Comments at 4. See, e.g., AAJC Comments at 2; Public Citizen and NACA Comments at 1; NASUCA Comments at 17 (“consumers should not be required to submit to arbitration to resolve disputes with broadband providers”). See, e.g., AAJC Comments at 1 (noting that “[i]n most cases, consumers must pay filing fees and the arbitrator’s costs, which can amount to thousands of dollars,” and the provider can select the arbitration location, making the process even costlier; further noting that arbitrated decisions are not reviewable and often not public, precluding consumers from uncovering potential biases in the process); Public Citizen and NACA Comments at 1-2. Commenters generally support the idea of having greater input from associations and technical advisory groups in the Commission’s open Internet regulation. See, e.g., CFA Comments at 5; Layton Comments at 18; Mozilla Comments at 25-26; TechFreedom Comments at 99-100; WISPA Comments at 35. But see CCIA Comments at 32. They point out that such input can improve inclusivity and transparency, see, e.g., Layton Comments at 18; Mozilla Comments at 26; WISPA Comments at 35, and ensures that the Commission’s enforcement is sufficiently informed by the most up-to-date technical insights regarding network management and other features of Internet engineering. See, e.g., Comcast Comments at 70; Cox Comments at 29; ITIF Comments at 20; Layton Comments at 19 (“A multi-stakeholder model is also preferable when evidence is limited and technological change is swift.”); MDTC Comments at 1; NetAccess Futures Comments at 29. See supra Section III.E.3.a. See 47 C.F.R. §§ 1.1202(d)(2), 1.1208; see also North County Communications Corp., Complainant v. MetroPCS California, LLC, Defendant, EB-06-MD-007, Memorandum Opinion and Order, 24 FCC Rcd 3807, 3818 n.85 (2009). AT&T Corp. v. Business Telecom, Inc., EB-01-MD-001, Order on Reconsideration, 16 FCC Rcd 21750, 21754, n.21 (2001) (quoting Pleading Schedule Established for AT&T Corp. v. Ameritech Corp., Public Notice, 13 FCC Rcd 12057, 12058 (Com. Car. Bur. 1998)). If a party to the proceeding is a member of or is otherwise represented by an entity that requests leave to file an amicus brief, the entity must disclose that affiliation in its request. In the matter of Heritage Cablevision Assoc. of Dallas, L.P. v. Texas Util. Elec. Co., Memorandum Opinion and Order, 6 FCC Rcd 7099, 7101, para. 10, n.13 (1991), review denied sub nom. Texas Utilities Elec. Co. v. F.C.C., 997 F.2d 925 (D.C. Cir. 1993). U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 568 (D.C. Cir. 2004).  See Charter Comments at 35-36 (recommending that the Commission “take full advantage of the multi-stakeholder forums that have helped to define the Internet and enable it to flourish.”); Cox Comments at 29 (supporting the NPRM’s proposal to adopt additional dispute resolution mechanisms that are informed by input from technical advisory groups); Mozilla Comments at 25-26 (recommending that technical bodies like the Open Internet Advisory Committee (OIAC) and the Broadband Internet Technical Advisory Group (BITAG) be consulted on technical issues like reasonable network management); NetAccess Futures Comments at 29. Whenever possible, the Enforcement Bureau should request advisory opinions from expert organizations whose members do not include any of the parties to the proceeding. If no such organization exists, the Enforcement Bureau may refer issues to an expert organization with instructions that representatives of the parties to the complaint proceeding may not participate in the organization’s consideration of the issues referred or the drafting of its advisory opinion. Moreover, we note that the Commission cannot as a matter of law delegate its dispute resolution processes to outside organizations. See supra note NOTEREF _Ref410913359 \h \* MERGEFORMAT 687. Accordingly, while we support the goals of Mozilla’s “three-phase” dispute resolution model, the Commission cannot go so far as to delegate leadership over open Internet disputes to outside multistakeholder groups. See Mozilla Comments at 26. See, e.g., Comcast Comments at 70; ITIF Comments at 20; MDTC Comments at 1. CDT Reply at 3 (suggesting the Commission consider an approach that “builds upon the recent D.C. Circuit decision and some of the strengths of Title II and Section 706.”); CFA Comments at 66 (“[T]he authorities overlap—a service can fall under more than one authority simultaneously—and are complementary (in the sense that they trigger different tools for different purposes). Therefore, there is no conflict between asserting the authority and developing the power under each of the Titles and sections of the Act. In fact . . . it would be imprudent for the Commission not to pursue all of the authorities it has available.”); iClick2Media Comments at 10 (“By combining the power of 706, Title II and Title III the FCC is afforded the reasoning and the power granted to it to protect the Openness of the Internet for years to come.”); AARP Comments at 40 (“Title II and Section 706 are highly complementary.”). CFA Comments at 68 (explaining that “recent court cases have made it clear that 706 and other authorities can be invoked simultaneously (although they need not be)”); AOL Comments at 9 (“Section 706 and Title II need not be mutually exclusive.”). 47 U.S.C. § 1302(a). Section 706(a) provides in full: The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment. Id. 47 U.S.C. § 1302(b). Id. § 1302(d)(1). Verizon, 740 F.3d at 637 (“The question, then, is this: Does the Commission's current understanding of section 706(a) as a grant of regulatory authority represent a reasonable interpretation of an ambiguous statute? We believe it does.”) A few commenters argue that the court incorrectly concluded that section 706(a) and (b) are express grants of authority. See, e.g., TechFreedom Comments at 62-70 (arguing that section 706 is not an independent grant of authority and that the court erred in its Chevron analysis); CenturyLink Comments at 53 (“Section 706(a) contains no grant of independent regulatory authority of any kind . . . .”). For the reasons discussed in the text, by the Commission in the 2010 Open Internet Order, and the court in Verizon and In re FCC, we disagree. Verizon, 740 F.3d at 637-38. As the Verizon court explained, for example, “Section 706(a)’s reference to state commissions does not foreclose such a reading” of section 706(a) as an express grant of authority. Id. at 638. Nor, as one of the dissents suggests, (see Pai Dissent at 55), is the statute’s reference to “[s]tate commission” rendered meaningless by the Commission’s reaffirmation that BIAS is an interstate service for regulatory purposes. See infra para REF _Ref413405836 \r \h 431. The Commission’s interpretation does not preclude all state commission action in this area, just that which is inconsistent with the federal regulatory regime we adopt today. See NARUC Broadband Data Order, 25 FCC Rcd at 5054-55. Id. at 638-39. Id. (distinguishing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000)) (“[W]hen Congress passed section 706(a) in 1996, it did so against the backdrop of the Commission’s long history of subjecting to common carrier regulation the entities that controlled the last-mile facilities over which end users accessed the Internet.”). Verizon, 740 F.3d at 640-43. In re FCC 11-161, 753 F.3d 1015, 1053 (10th Cir. 2014). See 2015 Broadband Progress Report at para. 4. See, e.g., Letter from Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. A, Phoenix Center Policy Bulletin No. 35, What are the Bounds of the FCC’s Authority over Broadband Service Providers? A Review of the Recent Case Law at 23 (filed Oct. 31, 2014) (Phoenix Center Oct. 31, 2014 Ex Parte Letter) (concluding that the Verizon court took the view that “706(a) is independent from 706(b), because the court seemed to say that the defined trigger of 706(b) is irrelevant to the Commission’s on-going (and independent) effort to promote broadband deployment under 706(a) under foreseeable market conditions”). Contrary to one of the dissenting statements, (see Pai Dissent at 56), Commission actions adopted pursuant to a negative section 706(b) determination would not simply be swept away by a future positive section 706(b) finding. The Commission takes such measures precisely to achieve section 706(b)’s goal of accelerating deployment. That they may succeed in achieving that goal so as to contribute to a positive section 706(b) finding does not subsequently render them unnecessary or unauthorized without any further Commission process. Throwing away such measures because they are working would be like “throwing away your umbrella in a rainstorm because you are not getting wet.” Shelby v. Holder, 133 S. Ct. 2612, 2650 (2013) (Ginsburg, J., dissenting). Even if that were not the case, independent section 706(a) authority would remain. We mention, however, two legal requirements that appear relevant. First, section 408 of the Act mandates that “all” FCC orders (other than orders for the payment of money) “shall continue in force for the period of time specified in the order or until the Commission or a court of competent jurisdiction issues a superseding order.” 47 U.S.C. § 408. Second, the Commission has a “continuing obligation to practice reasoned decisionmaking” that includes revisiting prior decisions to the extent warranted. Aeronautical Radio v. FCC, 928 F.2d 428 (D.C. Cir. 1991). We are aware of no reason why these requirements would not apply in this context. See, e.g., Earl Comstock Reply at 18-33 (arguing that section 706 contained no affirmative authority for rulemaking). See Verizon, 740 F.3d at 650 (stating that “Congress expressly directed that the 1996 Act . . . be inserted into the Communications Act of 1934”) (citation omitted). 47 U.S.C. § 154(i) (“The Commission may . . . make such rules and regulations . . . not inconsistent with this chapter, as may be necessary in the execution of its functions.”); 47 U.S.C. § 201(b) (“The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.”); 47 U.S.C. § 303(r) (“Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall . . . [m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter”). See 47 U.S.C. § 154(i). Verizon, 740 F.3d at 638 (quoting 2010 Open Internet Order, 25 FCC Rcd at 17969, para. 120). Verizon, 740 F.3d at 639-40. Id. at 640 (citing 47 U.S.C. §152(a)). Some have read this to require that regulations under section 706 must be ancillary to existing Commission authority in Title II, III or VI of the Act. See Phoenix Center Oct. 31, 2014 Ex Parte Letter, Attach. A at 25 (“Section 706 is really another form of the Commission’s ancillary authority—that is, like any use of its traditional ancillary authority . . . Verizon requires the Commission to tie its use of Section 706 to a specific delegation of authority in Title II, Title III, or Title VI.”). We disagree. To be sure, with the Commission’s exercise of both section 706 and ancillary authority, regulations must be within the Commission’s subject matter jurisdiction. Indeed, this is the first prong of the test for ancillary jurisdiction. American Library Ass'n v. FCC, 406 F.3d 689, 703–04 (D.C. Cir. 2005). But we do not read the Verizon decision as applying the second prong—which requires that the regulation be sufficiently linked to another provision of the Act—to our exercise of section 706 authority. Section 706 “does not limit the Commission to using other regulatory authority already at its disposal, but instead grants it the power necessary to fulfill the statute’s mandate.” See Verizon, 740 F.3d at 641 (citing 2010 Open Internet Order, 25 FCC Rcd at 17972, para. 123). Verizon, 740 F.3d at 640 (citing 47 U.S.C. § 1302(a)). Id. at 643. Id. at 644. In response to parties expressing concerns that section 706 could be read to impose regulations on edge providers or others in the Internet ecosystem, see, e.g., Disney et al. Reply at 2; ITIF Comments at 9-10, we emphasize that today’s rules apply only to last-mile broadband providers. We reject calls from other commenters to exercise our section 706 authority to adopt open Internet regulations for edge providers. See, e.g., ACA Comments at 47-48; Cox Comments at 13 (“[F]rom the Commission’s perspective, it should not make any difference whether the entity engaging in blocking or other discrimination is a broadband provider or an edge provider that hosts its content online.”). Today’s rules are specifically designed to address broadband providers’ incentives and ability to erect barriers that harm the virtuous cycle. We see no basis for applying these rules to any other providers. See supra Section III.D. See infra Section V. 47 U.S.C. § 201(a). 47 U.S.C. § 201(b). Id. 47 U.S.C. § 202(a). See Cellco, 700 F.3d at 541-42 (citing Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, WT Docket No. 05-265, Second Report and Order, 26 FCC Rcd 5411, 5440, para. 62 (2011)); 47 U.S.C. §§ 301, 304, 307, 309. 47 U.S.C. § 303(b). Cellco, 700 F.3d at 543 (citing Motion Picture Ass’n of America v. FCC, 309 F.3d 796, 806 (D.C. Cir. 2002)). 47 U.S.C. § 316. The Commission also has ample authority to impose conditions to serve the public interest in awarding licenses in the first instance. See 47 U.S.C. §§ 309(a); 307(a). Indeed, the Commission has required 700 MHz C Block spectrum licensees to comply with open Internet conditions to advance the public interest in innovation and consumer choice. See 700 MHz Second Report and Order, 22 FCC Rcd at 15363, para. 201. See Cellco, 700 F.3d at 543-44. See, e.g., Verizon Comments at 3 (“Verizon has been clear with our customers that we will not block their access to any content, applications, services, or devices based on their source.”); Charter Comments at 1 (“Like other Internet Service Providers (ISPs), Charter does not block lawful content or engage in pay-for-prioritization.”); AT&T Comments at 3 (“AT&T has no intention of creating fast lanes and slow lanes or of using prioritization arrangements for discriminatory or anti-competitive ends, as some net neutrality proponents fear.”). Verizon, 740 F.3d at 655-58. The record generally affirms our authority to adopt bright-line rules under Section 706, absent a contrary statutory prohibition. See, e.g., Comcast Dec. 24, 2014 Ex Parte Letter at 1-3; Waxman Oct. 3, 2014 Ex Parte Letter at 9 (“Once broadband Internet access is reclassified, I believe the FCC can use its authorities under section 706 to adopt three bright-line rules: a ‘no blocking’ rule, a ‘no throttling’ rule, and a ‘no paid prioritization’ rule.”). See USF/ICC Transformation Order, 26 FCC Rcd at 17903 (“Commission precedent provides that no carriers, including interexchange carriers, may block, choke, reduce or restrict traffic in any way.”); id. at 17903, para. 734 (reiterating that call blocking is impermissible in intercarrier compensation disputes); Developing an Unified Intercarrier Compensation Regime; Establishing Just and Reasonable Rates for Local Exchange Carriers, WC Docket No. 07-135, CC Docket No. 01-92, Declaratory Ruling, 27 FCC Rcd 1351, 1354, para. 9 (Wireline Comp. Bur. 2012) (2012 Declaratory Ruling) (discussing call blocking in rural call completion context); Establishing Just and Reasonable Rates for Local Exchange Carriers; Call Blocking by Carriers, WC Docket No. 07-135, Declaratory Ruling and Order, 22 FCC Rcd 11629, 11629-31, paras. 1, 6 (Wireline Comp. Bur. 2007) (2007 Declaratory Ruling) (reiterating that call blocking is impermissible as a self-help measure to address intercarrier compensation dispute); see also Blocking Interstate Traffic in Iowa, Memorandum Opinion and Order, 2 FCC Rcd 2692 (1987) (denying application for review of Bureau order, which required petitioners to interconnect their facilities with those of an interexchange carrier in order to permit the completion of interstate calls over certain facilities). See Carterfone, 13 FCC 2d at 424. USF/ICC Transformation Order, 26 FCC Rcd at 17903, para. 734; 2007 Declaratory Ruling, 22 FCC Rcd at 11631, para 6; see also Rural Call Completion Order, 28 FCC Rcd at 16155-56, para. 29. Commenters agree that the Commission should apply these precedents here. See, e.g., Free Press Comments at 44.; Public Knowledge Nov. 7, 2014 Ex Parte Letter at 1; Waxman Oct. 3, 2014 Ex Parte Letter at 9-10. See supra Section III.C.1. See, e.g., TWC Comments at 15 (“Against this backdrop, it is highly unlikely that Title II would support a flat ban on an entire category of potential business arrangements, such as paid prioritization.”); NCTA Comments at 28-29 (“Thus, far from supporting an outright ban on an entire class of prioritization arrangements between ISPs and edge providers, Section 202(a) would at most authorize the Commission to undertake a fact-specific, case-by-case analysis of the reasonableness of any particular prioritization arrangement . . .”); Alcatel-Lucent Comments at 10 (“Because Title II has never been interpreted to prohibit all forms of preferential treatment, the Commission could not rely upon its Title II authority to declare all forms of paid prioritization inherently unreasonable.”); CenturyLink Comments at 51. As the D.C. Circuit has stated, for example, “the generality of these terms . . . opens a rather large area for the free play of agency discretion, limited of course by the familiar ‘arbitrary’ and ‘capricious’ standard in the Administrative Procedure Act.” Bell Atlantic Tel. Co. v. FCC, 79 F.3d 1195, 1202 (D.C. Cir. 1996). Stated differently, because both sections “set out broad standards of conduct,” it is up to the “Commission [to] give[] the standards meaning by defining practices that run afoul of carriers’ obligation, either by rulemaking or by case-by-case adjudication.” Personal Communications Industry Association’s Broadband Personal Communications Services Alliance’s Petition for Forbearance et al., WT Docket No. 98-100, GN Docket No. 94-33, MSD-92-14, Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 16857, para. 15 (1998). We disagree with TWC’s suggestion that applying “Section 201(b) requires a contextual, case-specific analysis.” TWC Comments at 16. The Commission need not proceed through adjudication in announcing a broad ban on a particular practice. See, e.g., Rural Call Completion Order, 28 FCC Rcd at 16155-56, para. 29; Truth in Billing Rules, CC Docket No. 98-17, First Report and Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd 7492 (1999) (relying, in part, on section 201(b) in adopting truth-in-billing requirements). Indeed, the text of section 201(b) itself gives the Commission authority to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.” 47 U.S.C. 201(b). See Long Distance Direct, Inc., Apparent Liability for Forfeiture, File No. ENF-99-01, Memorandum Opinion and Order, 15 FCC Rcd 3297, 3302, para. 14 (2000) (LDDI MO&O) (finding that the company’s practice of cramming membership and other unauthorized fees on consumer telephone bills was an unjust and unreasonable practice in connection with communication services); Central Telecom Long Distance, Inc., Apparent Liability for Forfeiture, File No. EB-TCD-13-00011651, Notice of Apparent Liability For Forfeiture, 29 FCC Rcd 5517, 5523-27, paras. 14-21 (2014) (Central NAL); U.S. Telecom Long Distance, Inc. Apparent Liability for Forfeiture, File No. EB-TCD-13-00008959, Notice of Apparent Liability For Forfeiture, 29 FCC Rcd 823, 829-834, paras. 14–20 (2014) (USTLD NAL); Central Telecom Long Distance, Inc., Apparent Liability for Forfeiture, File No. EB-TCD-13-00006333, Notice of Apparent Liability For Forfeiture, 28 FCC Rcd at 17202-06, paras. 15-22 (2013). See also NobelTel LLC, Apparent Liability for Forfeiture, File No. EB-TCD-12-0000412, Notice of Apparent Liability For Forfeiture, 27 FCC Rcd 11760, at 11762-63, para. 6 (2012) (finding that “unfair and deceptive marketing practices by interstate common carriers constitute unjust and unreasonable practices under Section 201(b)”). See supra paras. REF _Ref410893296 \r \h \* MERGEFORMAT 126- REF _Ref410893313 \r \h \* MERGEFORMAT 128. NCTA contends that we cannot apply section 201(b) to ban paid prioritization because “no broadband providers have entered into such arrangements or even have plans to do so.” NCTA Comments at 29. Our open Internet rules, however, cannot take the status quo for granted, particularly where one provider has told the D. C. Circuit that but for our 2010 rules, it would be pursuing such arrangements. See Verizon Oral Arg. Tr. at 31 (“I’m authorized to state by my client [Verizon] today that but for these rules we would be exploring those commercial arrangements, but this order prohibits those, and in fact would shrink the types of services that will be available on the Internet.”). Rather, we put in place rules that in our judgment will best protect consumers and promote competition into the future. Further, as explained above, if a provider can—in the rare case—demonstrate that a particular paid prioritization arrangement would have a cognizable public interest benefit and inflict no harm to the open nature of the Internet, it may be eligible for a waiver. See, e.g., NCTA Comments 27-29; TWC Comments 14-16; Letter from William L. Kovacks, Chamber of Commerce to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, at 3, n.13 (filed July 15, 2014); ITIF Comments at 9. See, e.g., Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Agency Communication Requirements Through the Year 2010; Establishment of Rules and Requirements for Priority Access Service, WT Docket No. 96-86, Second Report & Order, 15 FCC Rcd 16720 (2000) (finding Priority Access Service, a wireless priority service for both governmental and non-government public safety personnel, “prima facie lawful” under section 202); Access Charge Reform; Price Cap Performance Review for Local Exchange Carriers; Interexchange Carrier Purchases Of Switched Access Services Offered By Competitive Local Exchange Carriers; Petition of US West Communications, Inc. for Forbearance from Regulation as a Dominant Carrier in the Phoenix, Arizona MSA, CC Docket Nos. 96-262, 94-1, 98-157, CCB/CPD File No. 98-63, 14 FCC Rcd 14221 (1999) (granting dominant carriers pricing flexibility for special access services, allowing both higher charges for faster connections as well as individualized pricing and customers discounts).See also Orloff v. FCC, 352 F.3d 415 (D.C. Cir. 2003) (upholding carriers’ ability to offer differential discounts to retail customers); Ameritech Operating Cos. Revisions to Tariff FCC No. 2, Order, DA 94-1121 (Common Carrier Bur. 1994) (upholding reasonableness of rate differentials based on cost considerations). To be sure, section 202(a) prohibits “unreasonable discrimination” for “like” communications services. But this provision does not, on its face, deprive the Commission of the authority to take actions under other provisions of the Act against discrimination that may not constitute “unreasonable discrimination” under section 202(a). Verizon, 740 F.3d at 639 (quoting 2010 Open Internet Order, 25 FCC Rcd at 17969, para. 120). To the extent our prior precedents suggest otherwise, for the reasons discussed in the text, we disavow such an interpretation as applied to the open Internet context. See supra Section III.F.3. Such tailoring is critical to preserving the “unique and open character of the Internet.” Higher Education and Libraries Comments at 23-24; see also CDT Comments at 19; CDT Reply at 3 (“An innovative approach would be to articulate a new standard that is tailored to the particular aims of this proceeding and is based upon the compelling public policy and societal need underpinning an open Internet.”). 47 U.S.C. §§ 201, 202 (2012). Given the generality of the terms in sections 201 and 202, the Commission has significant discretion when interpreting how those sections apply to the different services subject to Title II. See Orloff v. FCC, 352 F.3d 415, 420 (D.C. Cir. 2003) (“With respect to the Commission’s interpretation of § 202 as applied to CMRS, the ‘generality of these terms’—unjust, unreasonable—‘opens a rather large area for the free play of agency discretion . . .’”) (quoting Bell Atlantic Tel. Co. v. FCC, 79 F.3d 1195, 1202 (D.C. Cir. 1996)). Not all requirements which apply to common carriers need impose common carriage per se. See Verizon, 740 F.3d at 652 (citing Cellco, 700 F.3d at 547 (“[C]ommon carriage is not all or nothing—there is a gray area in which although a given regulation might be applied to common carriers, the obligations imposed are not common carriage per se. It is in this realm—the space between per se common carriage and per se private carriage—that the Commission’s determination that a regulation does or does not confer common carrier status warrants deference.”)); Id. at 653 (citing NARUC v. FCC, 533 F.2d 601, 608 (D.C. Cir. 1976) (NARUC II) (“Since it is clearly possible for a given entity to carry on many types of activities, it is at least logical to conclude that one may be a common carrier with regard to some activities but not others.”)). See Nat’l Assoc. of Regulatory Utility Comm’rs v. FCC, 525 F.2d 630, 641 (D.C. Cir. 1976) (NARUC I), cert den. 425 U.S. 992 (1976) (“But a carrier will not be a common carrier where its practice is to make individualized decisions, in particular cases, whether and on what terms to deal.”) (citing Semon v. Royal Indemnity Co., 279 F.2d 737, 739-40 (5th Cir. 1960). See supra paras. REF _Ref410900339 \r \h \* MERGEFORMAT 138- REF _Ref410900347 \r \h \* MERGEFORMAT 145. See supra Section III.F.3. The Commission has broad authority to prescribe the nature of services to be rendered by licensed stations, consistent with the public interest. 47 U.S.C. § 303(b); Cellco Partnership v. FCC, 700 F.3d 534, 542 (D.C. Cir. 2012) (“Although Title III does not ‘confer an unlimited power,’ the Supreme Court has emphasized that it does endow the Commission with ‘expansive powers’ and a ‘comprehensive mandate to ‘encourage the larger and more effective use of radio in the public interest.’”) (internal citations omitted) (quoting NBC v. United States, 319 U.S. 190, 216, 219 (1943)). To encourage deployment of “advanced telecommunications capability,” section 706(a) authorizes the Commission to engage in measures that “promote competition in the local telecommunications market.” 47 U.S.C. § 1302(a). And section 706(b) references “promoting competition in the telecommunications market” as among the immediate actions that Commission shall take to accelerate deployment of “advanced telecommunications capability” upon a determination that it is not being reasonably and timely deployed. 47 U.S.C. § 1302(b). We interpret these references to the “telecommunications market” to include the market for “advanced telecommunications capability.” In any event, having classified broadband Internet access services as “telecommunications services,” the Commission actions to promote competition among broadband Internet access services clearly promote competition in the “telecommunications market.” Truth-in-Billing and Billing Format, CC Docket No. 98-170, First Report and Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd 7492, 7503-04, para. 21 (1999); see generally Truth-in Billing and Billing Format, CC Docket No. 98-170, CG Docket No. 04-208, Second Report and Order, Declaratory Ruling, and Second Further Notice of Proposed Rulemaking, 20 FCC Rcd 6448 (2005); Empowering Consumers to Prevent and Detect Billing for Unauthorized Charges (“Cramming”), Consumer Information and Disclosure, Truth-in-Billing and Billing and Billing Format, CG Docket Nos. 11-116, 09-158, CC Docket No. 98-170, Report and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 4436, 4476-4479, paras. 114-122 (2011); NobelTel LLC, 27 FCC Rcd at 11762-63, para. 6 (finding that “unfair and deceptive marketing practices by interstate common carriers constitute unjust and unreasonable practices under Section 201(b).”). For the reasons discussed above, we likewise rely on Title III to ensure that spectrum licensees provide mobile broadband Internet access service consistent with the public interest. See, e.g., 47 U.S.C. §§ 201, 202, 303, 316. We discuss section 706 more specifically below. 47 U.S.C. §§ 403, 501, 503. See Verizon, 740 F.3d at 650 (stating that “Congress expressly directed that the 1996 Act . . . be inserted into the Communications Act of 1934”) (citation omitted). Moreover, as discussed above, to the extent that section 706 was not viewed as part of the Communications Act, we have authority under section 4(i) of the Communications Act to adopt rules implementing section 706. See supra Section III.F.1. Thus, even then the Commission’s rules, insofar as they are based on our substantive jurisdiction under section 706, nonetheless would be issued under the Communications Act. Verizon, 740 F.3d at 638 (quoting 2010 Open Internet Order, 25 FCC Rcd at 17969, para. 120). See Hurwitz Comments at 12 (arguing that the best path forward would be to adopt general policy guidelines that would be directly enforceable under the terms of section 706 through case-by-case adjudication). Thus, for all the reasons described above, we reject claims that we lack authority to enforce rules implementing section 706. See, e.g., Earl Comstock Reply at 18-33 (arguing that section 706 contained no affirmative authority for enforcement). 2014 Open Internet NPRM, 29 FCC Rcd at 5578, para. 160. 2010 Open Internet Order, 25 FCC Rcd at 17963, para. 107. 47 C.F.R. § 8.9. See Verizon, 740 F.3d at 659 (vacating only the “anti-discrimination and anti-blocking rules”). Today, we recodify this rule as 47 C.F.R. § 8.19. See infra Appx. A See 2010 Open Internet Order, 25 FCC Rcd at 17964, paras. 108–110. See, e.g., Higher Education and Libraries Comments at 33. See 47 U.S.C. § 1002(a). See 50 U.S.C. §§ 1802(a)(4), 1804, 1805(c)(2). See 18 U.S.C. §§ 2518, 2705. Southern Company Services Comments at 5; Utilities Telecom Council Reply at 3–7. See supra Section III.C.2. 2014 Open Internet NPRM, 29 FCC Rcd at 5578, para. 61. 2010 Open Internet Order, 25 FCC Rcd at 17964-65, para. 111. i2Coalition Comments at 38; Access Comments at 7. See Internet Association Comments at 14; Tumblr Reply at 6-7; Verizon, 740 F.3d at 646 (“[B]roadband providers have the technological ability to distinguish and discriminate against certain types of traffic.”); but see NCTA Comments at 15; ADTRAN Reply at 14. See supra para. REF _Ref413763373 \r \h 304 (emphasis added). i2Coalition Comments at 38. See supra Section III.E.3. Verizon, 740 F.3d at 650. Id. at 653. The Commission has previously classified cable modem Internet access service, wireline broadband Internet access service, and Broadband over Power Line (BPL)-enabled Internet access service as information services. The Commission has referred to these services as “wired” broadband Internet access services. See United Power Line Council’s Petition for Declaratory Ruling Regarding the Classification of Broadband Over Power Line Internet Access Service as an Information Service, WC Docket No. 06-10, Memorandum Opinion and Order, 21 FCC Rcd 13281, 13281-82, paras. 1-2 (2006) (BPL-Enabled Broadband Order); Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, 14863-65, 14909-12 paras. 14-17, 103-06 (2005) (Wireline Broadband Classification Order and Broadband Consumer Protection Notice), aff’d sub nom. Time Warner Telecom, Inc. v. FCC, 507 F.3d 205 (3d Cir. 2007) (Time Warner); Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798, 4819-39, paras. 33-69 (2002) (Cable Modem Declaratory Ruling), aff’d sub nom. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 978 (2005). The Commission has also previously classified “wireless” broadband Internet access, which it defined as a service that “uses spectrum, wireless facilities and wireless technologies to provide subscribers with high-speed (broadband) Internet access capabilities, . . . whether offered using mobile, portable, or fixed technologies,” as information services. Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901, 5909-10, para. 22 (2007) (Wireless Broadband Classification Order). As discussed in greater detail below, our classification decision arises from our reconsideration of past interpretations and applications of the Act. We thus conclude that the classification decisions in this Order appropriately apply only on a prospective basis. See, e.g., Verizon v. FCC, 269 F.3d 1098 (D.C. Cir. 2001) (“In a case in which there is a substitution of new law for old law that was reasonably clear, a decision to deny retroactive effect is uncontroversial.”) (internal quotations omitted). 47 U.S.C. § 151. Id. § 152(a). National Broadcasting Co., Inc. v. United States, 319 U.S. 190, 219-20 (1943). The Court added that “[i]n the context of the developing problems to which it was directed, the Act gave the Commission . . . expansive powers . . . [and] a comprehensive mandate.”  Id. See Comcast, 600 F.3d at 646-47. Regulatory & Policy Problems Presented by the Interdependence of Computer & Comm. Servs., Docket No. 16979, Notice of Inquiry, 7 FCC 2d 11, 11-12, para. 2 (1966) (Computer I Notice of Inquiry) (subsequent history omitted). Regulatory & Policy Problems Presented by the Interdependence of Computer & Comm. Servs., Docket No. 16979, Final Decision and Order, 28 FCC 2d 267, 270, 275, paras. 12, 24 (1971) (Computer I Final Decision), aff’d sub nom. GTE Servs. Corp. v. FCC, 474 F.2d 724 (2d Cir. 1973), decision on remand, 40 FCC 2d 293 (1972). Amendment of Section 64.702 of the Comm’n’s Rules & Regs, Second Computer Inquiry, Final Decision, 77 FCC 2d 384, 417-35, 461-75, paras. 86-132, 201-31 (1980) (Computer II Final Decision), aff’d sub nom. Computer & Commc’ns Indus. Ass’n v. FCC, 693 F.2d 198 (D.C. Cir. 1982); Amendment of Section 64.702 of the Comm’n’s Rules & Regs. (Third Computer Inquiry), CC Docket No. 85-229, Phase I, Report and Order, 104 FCC 2d 958, para. 4 (1986) (Computer III Phase I Order), recon., 2 FCC Rcd 3035 (1987) (Computer III Phase I Reconsideration Order), further recon., 3 FCC Rcd 1135 (1988) (Computer III Phase I Further Reconsideration Order), second further recon., 4 FCC Rcd 5927 (1989) (Computer III Phase I Second Further Reconsideration Order); Phase I Order and Phase I Recon. Order vacated sub nom. California v. FCC, 905 F.2d 1217 (9th Cir. 1990) (California I); CC Docket No. 85-229, Phase II, 2 FCC Rcd 3072 (1987) (Computer III Phase II Order), recon., 3 FCC Rcd 1150 (1988) (Computer III Phase II Reconsideration Order), further recon., 4 FCC Rcd 5927 (1989) (Phase II Further Reconsideration Order); Phase II Order vacated, California I, 905 F.2d 1217 (9th Cir. 1990); Computer III Remand Proceeding, CC Docket No. 90-368, 5 FCC Rcd 7719 (1990) (ONA Remand Order), recon., 7 FCC Rcd 909 (1992), pets. for review denied sub nom. California v. FCC, 4 F.3d 1505 (9th Cir. 1993) (California II); Computer III Remand Proceedings: Bell Operating Company Safeguards and Tier 1 Local Exchange Company Safeguards, CC Docket No. 90-623, 6 FCC Rcd 7571 (1991) (BOC Safeguards Order), BOC Safeguards Order vacated in part and remanded sub nom. California v. FCC, 39 F.3d 919 (9th Cir. 1994) (California III), cert. denied, 514 U.S. 1050 (1995); Computer III Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services, CC Docket No. 95-20, Notice of Proposed Rulemaking, 10 FCC Rcd 8360 (1995) (Computer III Further Remand Notice), Further Notice of Proposed Rulemaking, 13 FCC Rcd 6040 (1998) (Computer III Further Remand Further Notice); Report and Order, 14 FCC Rcd 4289 (1999) (Computer III Further Remand Order), recon., 14 FCC Rcd 21628 (1999) (Computer III Further Remand Reconsideration Order). Compare AT&T Comments at 46-47 with i2coalition Comments at 17-18; Public Knowledge Comments at 77. Computer II Final Decision, 77 FCC 2d at 428-32, paras. 115-23. Telecommunications Act of 1996, Pub. L. No. 104-104, § 3(a)(2), 110 Stat. 56, 58-60 (1996), codified at 47 U.S.C. §§ 153(24), 153(50), 153(53). Brand X, 545 U.S. at 977; Wireline Broadband Classification Order, 20 FCC Rcd at 14871, para. 29. The Commission’s definition of “adjunct to basic” services has been instrumental in determining which functions fall within the “telecommunications systems management” exception to the “information service” definition. See infra paras. REF _Ref410904314 \r \h \* MERGEFORMAT 366- REF _Ref410904317 \r \h \* MERGEFORMAT 367. As discussed below, a large number of rural local exchange carriers (LECs) have also chosen to offer broadband transmission service as a telecommunications service subject to the provisions of Title II. See infra para. REF _Ref410904412 \r \h \* MERGEFORMAT 425. See Computer II Final Decision, 77 FCC 2d at 475, para. 231; see also Wireline Broadband Classification Order, 20 FCC Rcd at 14866-68, para. 24. See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14858, para. 5 (“Facilities-based wireline broadband Internet access service providers are no longer required to separate out and offer the wireline broadband transmission component . . . of wireline broadband Internet access services as a stand-alone telecommunications service under Title II. . . .”). Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd 11501 (1998) (Stevens Report). See, e.g., ACA Comments at 55-56 (citing the Stevens Report); AT&T Comments at 41-44. See, e.g., Verizon Comments, GN Docket No. 00-185 at 2 (Dec. 1, 2000) (“The Act defines residential broadband access—whether provided by a local telephone company or a cable operator—as a telecommunications service subject to ‘common carrier’ regulation.”); Verizon Reply, GN Docket No. 00-185 at 18 (Jan. 10, 2001) (explaining that cable operators are “providing a telecommunications service by making available to the public a transparent, unenhanced transmission path that customers can use to reach any Internet service provider or destination on the Internet from their homes”); Qwest Comments, GN Docket No. 00-185 at 2-3 (Dec. 1, 2000) (“[T]he transport portion of cable modem service is a telecommunications service under the 1996 Act.”). Contemporaneously, Verizon and the United States Telecom Association argued in the Gulf Power litigation before the Supreme Court that cable modem service includes a telecommunications service. See Amicus Brief of United States Telecom Ass’n and Verizon in National Cable Television Ass’n v. Gulf Power Co., Nos. 00-832, 00-833, 2001 WL 345191, *22 (2001) (“[C]able-delivered high-speed Internet access does not fall within the Communications Act’s definition of an ‘information service’ . . . . Cable operators, of course, like DSL-providing telephone companies, may offer customers an ISP service, which is an ‘information service.’ . . . But they provide that service along with their telecommunications service, and, as the Commission’s orders establish, the two services are statutorily distinct and cannot be conflated.”) (emphasis in original) (citations omitted). See Inquiry Concerning the Deployment of Advanced Telecommunications Services to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, CC Docket No. 98-146, Report, 14 FCC Rcd 2398, 2446, para. 91 (1999); Ind. Anal. & Tech. Div., Wireline Comp. Bur., Trends in Telephone Service, 2-12, chart 2.10, 16-3, Tbl. 16.1 (Aug. 2008). See Stevens Report, 13 FCC Rcd at 11540, para. 81 (“Internet access providers, typically, own no telecommunications facilities. Rather, in order to provide those components of Internet access services that involve information transport, they lease lines, and otherwise acquire telecommunications, from telecommunications providers.”). See id. at 11536, para. 73; see also Brand X, 545 U.S. at 978 (“The [Stevens] Report classified ‘non-facilities-based’ ISPs—those that do not own the transmission facilities they use to connect the end user to the Internet—solely as information service providers.”); Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities, GN Docket No. 00-185, Notice of Inquiry, 15 FCC Rcd 19287, 19297 para. 23 & n.45 (2000) (Cable Modem Notice of Inquiry) (“We note that the Commission has classified the end user services commonly provided by dial-up ISPs as information services.”) (citing the Stevens Report). Stevens Report, 13 FCC Rcd at 11530, para. 60 (“[T]he matter is more complicated when it comes to offerings by facilities-based providers.”), 11535 n.140 (“We express no view in this Report on the applicability of this analysis to cable operators providing Internet access service.”); see also Cable Modem Declaratory Ruling, 17 FCC Rcd at 4824, para. 41 (“The [Stevens Report] did not decide the statutory classification issue in those cases where an ISP provides an information service over its own transmission facilities.”); Appropriate Framework for Broadband Access to Internet Over Wireline Facilities, Universal Service Obligations of Broadband Providers, CC Docket No. 02-33, Notice of Proposed Rulemaking, 17 FCC Rcd 3019, 3027-28, para. 14 (2002) (Wireline Broadband NPRM) (explaining that the Stevens Report recognized “that its analysis focused on ISPs as entities procuring inputs from telecommunications service providers”). Stevens Report, 13 FCC Rcd at 11530, para. 60. Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147, Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 24012, 24030, para. 36 (1998) (Advanced Services Order). The Advanced Services Order was subject to a voluntary remand requested by the Commission. Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147, Order on Remand, 15 FCC Rcd 385, 388 para. 9 (1999) (Advanced Services Remand Order). The definition of telecommunications service is now in section 3(53) of the Act, 47 U.S.C. § 153(53). The Advanced Services Remand Order was vacated in part by the D.C. Circuit in WorldCom v. FCC, 246 F.3d 690 (D.C. Cir. 2001). Specifically, the D.C. Circuit vacated the remand of the Commission’s classification of DSL-based advanced services as “telephone exchange service” or “exchange access.” “Telephone exchange service” and “exchange access” are relevant in determining whether a provider is a “local exchange carrier.” See 47 U.S.C. §§ 153(32) (defining “local exchange carrier”), (20) (defining “exchange access”), (54) (defining “telephone exchange service”). It has no bearing on the classification of a particular service offering as a telecommunications or information service under the Act. As such, the further history of the Advanced Services Remand Order is inapposite to the Commission’s discussion of telecommunications and information services in that Order. AT&T Corp. v. City of Portland, 216 F.3d 871, 877-79 (9th Cir. 2000) (City of Portland). But see Gulf Power Co. v. FCC, 208 F.3d 1263, 1275-78 (11th Cir. 2000) (holding that Internet access service is neither a cable service nor a telecommunications service), rev’d on other grounds sub nom. Nat’l Cable & Telecomms. Ass’n v. Gulf Power Co., 534 U.S. 327 (2002); MediaOne Group, Inc. v. County of Henrico, 97 F. Supp. 2d 712, 715 (E.D. Va. 2000) (concluding that cable modem service is a cable service), aff’d on other grounds, 257 F.3d 356 (4th Cir. 2001). In 2001, SBC Communications and BellSouth acknowledged the significance of the Computer Inquiries, the Advanced Services Order, and the Ninth Circuit’s decision in City of Portland: “The Commission currently views the DSL-enabled transmission path underlying incumbent LEC broadband Internet services as a ‘telecommunications service’ under the Act. As the Ninth Circuit recognized, the exact same logic applies to cable broadband: ‘to the extent that [a cable ISP] provides its subscribers Internet transmission over its cable broadband facility, it is providing a telecommunications service as defined in the Communications Act.’” SBC and BellSouth Reply, GN Docket No. 00-185, at 19 (filed Jan. 10, 2001) (quoting City of Portland, 216 F.3d at 878) (footnote omitted); see also id. at 19-20 & n.68 (arguing that “cable broadband (like DSL)” is “one type of telecommunications service”) (citing the Advanced Services Order). SBC subsequently acquired AT&T and BellSouth to form what is now AT&T. 15 FCC Rcd at 19293, para. 15. See supra note NOTEREF _Ref410904622 \h \* MERGEFORMAT 810. See SBC and BellSouth Comments, GN Docket No. 00-185, at 12 (filed Dec. 1, 2000) (arguing that classifying “the underlying broadband data transmission” as a Title II service “will survive review in courts”); id.at 26 (“The Commission has statutory authority to impose Title II regulations on cable modem providers.”); SBC and BellSouth Reply, GN Docket No. 00-185, at 13 (filed Jan. 10, 2001) (“[T]he Commission may resolve this question by concluding that cable Internet service providers do in fact offer both an ‘information service’ subject to Title I and a ‘telecommunications service’ subject to Title II.”) (emphasis in original); id. at 20 (“[T]he plain fact is that cable broadband service can be—and often is—used as a pure transport service, whatever other incidents may be bundled with it. A cable-modem subscriber is free to use the connection for nothing but noncable e-mail, for example, or for downloading content from non-cable (e.g., Disney or MSN) sites.”). See Verizon Comments, GN Docket No. 00-185, at 26 (filed Dec. 1, 2000) (“[T]he Commission could maintain a nondiscrimination obligation on both cable operators and ILECs but eliminate pricing and tariffing regulation for broadband access services.”) (emphasis in original); SBC and BellSouth Comments, GN Docket No. 00-185, at 38-42 (arguing that the Commission “can opt for a middle-ground of less burdensome regulation under Title II” by declaring “all broadband Internet providers to be nondominant carriers, subject to minimal tariff and notice requirements” and by granting forbearance). Cable operators generally argued that the Commission should classify cable modem service as either a cable service or an information service, but not as a telecommunications service. See, e.g., Comcast Comments, GN Docket No. 00-185, at 11-18 (filed Dec. 1, 2000); AT&T Comments, GN Docket No. 00-185, at 6-20 (filed Dec. 1, 2000); Cox Comments, GN Docket No. 00-185, at 26-40 (filed Dec. 1, 2000). Cable Modem Declaratory Ruling, 17 FCC Rcd at 4819, para. 32. Id. at 4804, para. 10 (footnotes omitted). Id. at 4806, para. 11 (footnotes omitted). The Commission defined cable modem service as “a service that uses cable system facilities to provide residential subscribers with high-speed Internet access, as well as many applications or functions that can be used with high-speed Internet access.” Id. at 4818-19, para. 31. Id. at 4809-11, paras. 16-17 (citations omitted). Id. at 4810-11, para. 17 (citations omitted). Id. at 4811, para. 18 (citation omitted). Id. at 4822, para. 38. Id. at 4802, para. 7. Id. at 4823, paras. 38-39. See 47 U.S.C. § 153(24). Cable Modem Declaratory Ruling, 17 FCC Rcd at 4839-41, paras. 72-74. Brand X Internet Services v. FCC, 345 F.3d 1120, 1132 (9th Cir. 2003). Brand X, 545 U.S. at 1129. See Brand X, 545 U.S. 967. Id. at 986-1000. See Wireline Broadband Classification Order, 20 FCC Rcd at 14863-65, paras. 14-17, 14909-12, paras. 103-06. Id. at 14860, para. 9. Id. Id. at 14875-98, paras. 41-85. See BPL-Enabled Broadband Order, 21 FCC Rcd at 13281-82, paras. 1-2. Wireless Broadband Classification Order, 22 FCC Rcd at 5901-02, para. 1. Id. Id. at 5916, para. 42. Comcast, 600 F.3d at 661. Framework for Broadband Internet Service, GN Docket No. 10-127, Notice of Inquiry, 25 FCC Rcd 7866 (2010) (Broadband Classification NOI). Verizon, 740 F.3d at 635-42. Id. at 635-42, 656-59. The Court also found that that authority did not allow the Commission to subject information services or providers of private mobile services to treatment as common carriers. Id. at 650 (citing 47 U.S.C. § 153(51) and 47 U.S.C. § 332(c)(2)). 2014 Open Internet NPRM, 29 FCC Rcd at 5563, para. 4. Id. Id. Id. See Internet Policy Statement, 20 FCC Rcd 14986; 2014 Open Internet NPRM, 29 FCC Rcd 5561; Verizon, 740 F.3d 623. Verizon, 740 F.3d at 635-42, 655-59. Id. at 650-59. Brand X, 545 U.S. at 981-82. See Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 741 (1996) (rejecting argument that deference should be withheld because regulation was prompted by litigation); Mayo Foundation for Medical Educ. and Research v. U.S., 562 U.S. 44, 131 S. Ct 704, 712-13 (2011) (explaining that in United Dominion Industries, Inc. v. U.S., 532 U.S. 822, 838 (2001), the Supreme Court “expressly invited the Treasury Department to ‘amend its regulations’ if troubled by the consequences of our resolution of the case”). See supra Section III.B. Cable Modem Declaratory Ruling, 17 FCC Rcd at 4843-44, para. 83. See Wireline Broadband Classification Order, 20 FCC Rcd at 14863, para. 14 (“[L]ike cable modem service . . . wireline broadband Internet access service combines computer processing, information provision, and computer interactivity with data transport, enabling end users to run a variety of applications (e.g., e-mail, web pages, and newsgroups).”) (citing the Cable Modem Declaratory Ruling and the Stevens Report); BPL-Enabled Broadband Order, 21 FCC Rcd at 13286, para. 9 (referencing prior classification of cable modem service and wireline broadband Internet access service); Wireless Broadband Classification Order, 22 FCC Rcd at 5911, para. 26 (stating that applications run by wireless broadband Internet access users are “identical to those provided by cable modem service, wireline broadband Internet access, or BPL-enabled Internet access” and therefore finding that wireless broadband Internet access service meets the definition of an information service). CDT Comments at 11; see also Vonage Comments at 39 (“The pipe is the essential broadband experience and speed and capacity drive buying decisions.”); AARP Comments at v (“When a broadband subscriber uploads video to YouTube, updates their Facebook page, posts on their blog, or shares files, all that is needed from the broadband provider is pure transmission.”); Free Press Comments at 68 (“A broadband access provider performs one main function: transmitting Internet Protocol (IP) packets between the addresses of the user’s choosing.”). See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14880-81, para. 50 (finding that “a wide variety of competitive and potentially competitive providers and offerings are emerging” in the broadband Internet access services market, and that “an emerging market, like the one for broadband Internet access, is more appropriately analyzed in view of larger trends in the marketplace, rather than exclusively through the snapshot data that may quickly and predictably be rendered obsolete as this market continues to evolve”). See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4802, para. 7; Wireline Broadband Classification Order, 20 FCC Rcd at 14862-65, 14909-12, paras. 12-17, 102-06; BPL-Enabled Broadband Order, 21 FCC Rcd at 13281-82, paras. 1-2; Wireless Broadband Classification Order, 22 FCC Rcd at 5909-10, para. 22. A “telecommunications service” is “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” 47 U.S.C. § 153(53). “Telecommunications” is “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.” Id. § 153(50). Brand X, 545 U.S. at 980 (citations omitted); see also id. at 989 (“[W]here a statute’s plain terms admit of two or more reasonable ordinary usages, the Commission’s choice of one of them is entitled to deference.”). Id. at 992; see also id. at 991 (“[T]he term ‘offer’ can sometimes refer to a single, finished product and sometimes to the ‘individual components in a package being offered’ . . . .”); U.S. Telecom Ass’n v. FCC, 295 F.3d 1326, 1332 (D.C. Cir. 2002) (“telecommunications carrier” is an ambiguous statutory term); Virgin Islands Tel. Comp. v. FCC, 198 F.3d 921, 925-26 (D.C. Cir. 1999) (“telecommunications service” is an ambiguous term). Id. at 989. Id. at 1002-03 (internal citation and quotation marks omitted). Id. at 985-86. Id. at 1003 (Breyer, J., concurring). Id. at 1005 (Scalia, J., dissenting).  Id. at 1008 (Scalia, J., dissenting).  Id. at 981; see also Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863 (1984) (“An initial agency interpretation is not instantly carved in stone.”). Accord Mary V. Harris Foundation v. FCC, 776 F.3d 21, 24 (D.C. Cir. 2015) (“What the Commission did in the past is of no moment, however, if its current approach reflects a permissible interpretation of the statute.”). Brand X, 545 U.S. at 981 (citations omitted). FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (interpreting statutory ban on indecent broadcasts). Id.; see also Verizon, 740 F.3d at 636-37 (“In the Open Internet Order, however, the Commission has offered a reasoned explanation for its changed understanding of section 706(a). . . . In these circumstances . . . we have no basis for saying that the Commission ‘casually ignored prior policies and interpretations or otherwise failed to provide a reasoned explanation’ for its changed interpretation.”). By mass market, we mean services marketed and sold on a standardized basis to residential customers, small businesses, and other end-user customers such as schools and libraries. “Schools” would include institutions of higher education to the extent that they purchase these standardized retail services. See Higher Education and Libraries Comments at 11 (noting that institutions of higher education are not “residential customers” or “small businesses” and uncertainty about whether institutions of higher education (and their libraries) are included in the term “schools” because the term is sometimes interpreted as applying only to K-12 schools). For purposes of this definition, “mass market” also includes broadband Internet access service purchased with the support of the E-rate, and Rural Healthcare programs, as well as any broadband Internet access service offered using networks supported by the Connect America Fund (CAF), but does not include enterprise service offerings or special access services, which are typically offered to larger organizations through customized or individually negotiated arrangements. See Open Internet Order, 25 FCC Rcd at 17932, para. 45; supra para. REF _Ref412215933 \r \h 189 & n. NOTEREF _Ref413749542 \h 464. As explained above, see supra note NOTEREF _Ref412529095 \h 27 , our use of the term “broadband” in this Order includes but is not limited to services meeting the threshold for “advanced telecommunications capability.” 47 C.F.R. § 8.11(a); Open Internet Order, 25 FCC Rcd at 17932, para. 44; id. at 17935, para. 51 (finding that the market and regulatory landscape for dial-up Internet access service differed from broadband Internet access service); 2014 Open Internet NPRM, 29 FCC Rcd at 5581, para. 54. The Verizon decision upheld the Commission’s regulation of broadband Internet access service pursuant to section 706 and the definition of “broadband Internet access service” has remained part of the Commission’s regulations since adopted in 2010. Certain parties have raised issues in the record regarding the regulatory status of mobile messaging services, e.g., SMS/MMS. See, e.g., Twilio Comments at 7-8. We note that the rules we adopt today prohibit broadband providers from, for example, blocking messaging services that are delivered over a broadband Internet access service. We decline to further address here arguments regarding the status of messaging within our regulatory framework, but instead plan to address these issues in the context of the pending proceeding considering a petition to clarify the regulatory status of text messaging services.  See Wireless Telecommunications Bureau Seeks Comment on Petition for Declaratory Ruling that Text Messaging and Short Codes are Title II Services or Title I Service Subject to Section 202 Non-Discrimination Rule, WT Docket No. 08-7, Public Notice, 23 FCC Rcd 262 (WTB 2008). In classifying wireless broadband Internet access as an information service, the Commission excluded broadband provided via satellite from classification. See Wireless Broadband Classification Order, 22 FCC Rcd at 5901, n.1. Thus, our action here expressly classifies the service for the first time. We observe that while our classification includes broadband Internet access services provided using capacity over fixed or mobile satellite or submarine cable landing facilities, our classification of these services as telecommunications services or CMRS does not require changes to the authorizations for satellite earth stations, satellite space stations, or submarine cable landing facilities. See Wireless Broadband Classification Order, 22 FCC Rcd at 5909-10, paras. 19, 22 (defining wireless broadband Internet access service as “a service that uses spectrum, wireless facilities and wireless technologies to provide subscribers with high-speed (broadband) Internet access capabilities” and classifying such service—“whether offered using mobile, portable, or fixed technologies”—as an information service); Cable Modem Declaratory Ruling, 17 FCC Rcd at 4818-19, para. 31 (stating that cable modem service is a “service that uses cable system facilities to provide residential subscribers with high-speed Internet access, as well as many applications or functions that can be used with high-speed Internet access”); Wireline Broadband Classification Order, 20 FCC Rcd at 14860, para. 9 (defining wireline broadband Internet access service as “a service that uses existing or future wireline facilities of the telephone network to provide subscribers with [broadband] Internet access capabilities”); BPL-Enabled Broadband Order, 21 FCC Rcd 13281. The Commission has consistently determined that resellers of telecommunications services are telecommunications carriers, even if they do not own any facilities. See, e.g., Regulation of Prepaid Calling Card Services, WC Docket No. 05-68, Declaratory Ruling and Report and Order, 21 FCC Rcd 7290, 7293-94, 7312, paras. 10, 65 (2006), vacated in part on other grounds sub nom. Qwest Servs. Corp. v. FCC, 509 F.3d 531 (D.C. Cir. 2007); NOS Communications, Inc., Affinity Network Inc. and NOSVA Limited Partnership, EB Docket No. 03-96, Order to Show Cause and Notice of Opportunity for Hearing, 18 FCC Rcd 6952, 6953-54, para. 3 (2003); Regulatory Policies Concerning Resale and Shared Use of Common Carrier Services and Facilities, Docket No. 20097, Report and Order, 60 FCC 2d 261, 265 para. 8 (1976) (“[A]n entity engaged in the resale of communications service is a common carrier, and is fully subject to the provisions of Title II of the Communications Act.”), aff’d sub nom. AT&T v. FCC, 572 F.2d 17 (2d Cir. 1978). Further, as the Supreme Court observed in Brand X, “the relevant definitions do not distinguish facilities-based and non-facilities-based carriers.” Brand X, 545 U.S. at 997. 2010 Open Internet Order, 25 FCC Rcd at 17934, para. 49. See 47 U.S.C. § 153(34) (“The term ‘mobile station’ means a radio-communication station capable of being moved and which ordinarily does move.”); 2010 Open Internet Order, 25 FCC Rcd at 17934, para. 49. We note that section 337(f)(1) of the Act excludes public safety services from the definition of mobile broadband Internet access service. 47 U.S.C.§ 337(f)(1). Verizon, 740 F.3d at 653. Id. at 659. Verizon, 740 F.3d at 653; Technology Policy Institute Comments at 11 (recognizing a two-sided market); CenturyLink Comments at 6 (“A two-sided market approach ensures that the costs of content and applications causing greater bandwidth consumption are ultimately passed on to the subscribers who use those services, ensures that adequate pricing signals are communicated to edge providers and, overall, produces the optimal economic outcome.”); id. at 5-7; Hance Haney Comments at 9 (recognizing a two-sided broadband market); Cox Comments at 5 (discussing emerging two-sided market arrangements); ACLU Comments at 7 (acknowledging the broadband market as a two-sided market); Bright House Comments at 27-28 (explaining that two-sided markets have long existed under Title II in the provision of long-distance service). Verizon, 740 F.3d at 650. Id. See, e.g., Letter from Matthew Wood, Policy Director, Free Press to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 3 (filed Feb. 20, 2015) (“Recognition of [an] edge-facing service as a telecom service is decidedly not commanded by the D.C. Circuit’s decision in the Verizon case.”); Letter from Sarah Morris, Open Technology Institute, New America Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 2 (filed Feb. 20, 2015); Letter from Austin C. Schlick, Director, Communications Law, Google, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 1 (filed Feb. 20, 2015); Letter from Henry G. Hultquist, Vice President, AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 7-9 (filed Feb. 18, 2015); Letter from William H. Johnson, Vice President and Associate General Counsel, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 2-3 (filed Oct. 17, 2014) (stating that “the fact that payment for [broadband] service may be split in some fashion between the edge provider and end user does not magically convert the service into two separate offerings”). We thus decline to adopt proposals identifying and classifying a separate service provided to edge providers that were presented in the record, and on which we sought comment, including those by Mozilla, the Center for Democracy and Technology, and Professors Wu and Narechania. See, e.g., Mozilla’s Petition to Recognize Remote Delivery Services in Terminating Access Networks and Classify Such Services Under Title II of the Communications Act, WC Docket No. 14-28, at 12 (filed May 5, 2014); Tejas Narechania and Tim Wu, Sender Side Transmission Rules for the Internet, Fed. Comm. L.J. (forthcoming 2014); Narechania/Wu Apr. 14, 2014 Ex Parte Letter. We believe that our actions here adequately address the concerns raised by these proposals, consistent with both law and fact. 47 U.S.C. § 153(51) (defining “telecommunications carrier”). See supra para. REF _Ref412492574 \r \h 204. This is not a novel arrangement. Under traditional contract principles, Party A (a broadband provider) can contract with Party B (a consumer) to provide services to Party C (an edge provider). That the service is being provided to Party C does not, in any way, conflict with the legal conclusion that the terms and conditions under which that service is being provided are governed by the agreement—and here the regulatory framework— between Parties A and B. Most content that flows across the broadband provider’s “last-mile” network to the retail consumer does not involve a direct agreement between Parties B and C but, as the Verizon court observed, an edge provider, like Amazon, could enter into an agreement with a broadband provider, like Comcast. See Verizon, 740 F.3d at 653. This conclusion does not contradict the economic view that a broadband provider is operating in a two-sided market. See, e.g., supra note NOTEREF _Ref412574623 \h 893. A newspaper looks the same whether viewed by an advertiser or a subscriber, even though their economic relationship with the newspaper publisher is different. Here the operation of the broadband Internet access service is so intertwined with the edge service so as to compel the conclusion that the BIAS reclassification controls any service that is being provided to an edge provider. See 47 U.S.C. 201(b) (“All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable”); see also Truth-in-Billing and Billing Format, CC Docket No. 98-170, First Report and Order and Further Notice of Proposed Rulemaking, 14 FCC Rcd 7492, 7503-06, para. 21-24 (1999) (finding that a carrier’s provision of misleading or deceptive billing information “in connection with” a telecommunications service is unjust and unreasonable in violation of section 201(b)); Empowering Consumers to Prevent and Detect Billing for Unauthorized Charges (“Cramming”); Consumer Information and Disclosure; Truth-in-Billing and Billing and Billing Format, CG Docket Nos. 11-116, 09-158, CC Docket No. 98-170, Report and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 4436, 4476-4479, paras. 114-122 (2011) (finding that the placement of third-party charges on bills for their own telecommunications services such that they are “often described to look like they are associated with a telecommunications service provided by the carrier” are subject to section 201(b)); NobelTel LLC, Apparent Liability for Forfeiture, File No. EB-TCD-12-0000412, Notice of Apparent Liability For Forfeiture, 27 FCC Rcd 11760, 11762-63, para. 6 (2012) (finding that “unfair and deceptive marketing practices by interstate common carriers constitute unjust and unreasonable practices under Section 201(b)”).  minimum, larify, ded market. (on forbears from all rate-making rules and other regulations adopted under section 201 and 202) 2010 Open Internet Order, 25 FCC Rcd at 17933, para. 47; 2014 Open Internet NPRM, 29 FCC Rcd at 5581, para. 58; see also, e.g., Cox Comments at 8, 13-14; Nokia Comments at 11; Verizon Comments at 77-78. 2014 Open Internet NPRM, 29 FCC Rcd at 5581-82, para. 58. In classifying broadband Internet access service as a telecommunications service today, the Commission does not, and need not, reach the question of whether and how these services are classified under the Communications Act. See 2010 Open Internet Order, 25 FCC Rcd at 17935, para. 52. Cable Modem Declaratory Ruling, 17 FCC Rcd at 4843-44, para. 83. Id. at 4822, para. 38 (emphasis added). Wireline Broadband Classification Order, 20 FCC Rcd at 14910, para. 104 (quoting 47 U.S.C. § 153(46)) (citing Brand X, 545 U.S. at 989-90) (emphasis added). Wireless Broadband Classification Order, 22 FCC Rcd at 5909, para. 21. Brand X, 545 U.S. at 989-990, 993; see also id. at 1005, 1008 (Scalia, J., dissenting). Id. at 990 (“We think that [the transmission component of cable modem service and the finished service] are sufficiently integrated, because ‘[a] consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access.’”), 991 (“[The entire] question turns not on the language of the Act, but 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.”), 991-92, 998-99; see also id. at 1006-07, 1010 (Scalia, J., dissenting). Id. at 990-91; see also id. at 1008 (Scalia, J., dissenting). Cable Modem Declaratory Ruling, 17 FCC Rcd at 4804, para. 10 (footnotes omitted). Id. at 4809-11, para. 17. Earlier, in its 2001 AOL/Time Warner merger order describing the emerging high speed Internet access services offered through cable modems, the Commission found that “Internet access services consist principally of connectivity to the Internet provided to end users.” Applications for Consent to the Transfer of Control of Licenses and Section 214 Authorizations by Time Warner, Inc. and America Online, Inc., Transferors, to AOL Time Warner, Inc., Transferee, CS Docket No. 00-30, Memorandum Opinion and Order, 16 FCC Rcd 6547, 6572-73, paras. 62, 64 (2001) (describing contracts by cable operators with Road Runner, Excite@Home, and High-Speed Access Corp. to provide such connectivity). Cable Modem Declaratory Ruling, 17 FCC Rcd at 4809-11, paras. 16-17. Id. at 4810-11, para. 17 (citations omitted). Id. at 4811, para. 18 (emphasis added) (citations omitted). Id. at 4822, para. 38 (emphasis added). Wireline Broadband Classification Order, 20 FCC Rcd at 14910, para. 104. See Wireline Broadband Classification Order, 20 FCC Rcd at 14860, para. 9 (discussing e-mail, websites, newsgroups, ability to create home pages, and “the ability to run a variety of applications”); BPL-Enabled Broadband Order, 21 FCC Rcd at 13286, para. 9 ( “[The] characteristics of BPL-enabled Internet access service are similar to the characteristics that the Commission relied upon in classifying cable modem service and wireline broadband Internet access service as ‘information services.’”). Wireless Broadband Classification Order, 22 FCC Rcd at 5909, para. 21. Id. at 5908, para. 16 (footnotes omitted). Industry Analysis Division, Common Carrier Bureau, High Speed Services for Internet Access: Subscribership as of December 31, 2000 (Aug. 2001) at 6, Tbl. 3; Industry Analysis and Technology Division, Wireline Competition Bureau, Internet Access Services: Status as of December 31, 2013 at 17, Tbl. 3 (Oct. 2014) (noting that the estimate for 2000 overstates residential connections because the residential data include small business connections before 2005); see also John B. Horrigan & Lee Rainie, The Broadband Difference: How Online Behavior Changes with High-Speed Internet Connections at Home, Pew Internet & American Life Project, 8 (2002) (“When the Pew Internet and American Life Project in June 2000 first asked Internet users about the type of home connection they had, 6% of Internet users had a high-speed connection at home.”) (The Broadband Difference). Industry Analysis Division, Common Carrier Bureau, High-Speed Services for Internet Access: Subscribership as of December 31, 2000 at 6, Tbl. 3 (Aug. 2001); U.S. Department of Commerce, Census Brief, Households and Families: 2000 at 1 (Sept. 2001) (reporting 105.5 million households; 5.2 million subscribers/105.5 households equals approximately 5 percent). Industry Analysis and Technology Division, Wireline Competition Bureau, Internet Access Services: Status as of December 31, 2013 at 35, Tbl. 14 (Oct. 2014), http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db1016/DOC-329973A1.pdf. See id. at 34, Tbl. 13. See id. at 17, Tbl. 3; see also Industry Analysis and Technology Division, Wireline Competition Bureau, Internet Access Services: Status as of June 30, 2011 at 82 (June 2012) (explaining the change in mobile reporting and thus our estimates are not directly comparable to estimates reported in earlier reporting periods). In addition, the mobile residential figures may overstate residential handsets because mobile filers report the number of “consumer” handsets that are not billed to a corporate, non-corporate business, government, or institutional customer account, and thus could include handsets for which the subscriber is reimbursed by their employee. See FCC Form 477 Filing Instructions at 26, http://transition.fcc.gov/form477/477inst.pdf. See comScore, comScore Reports November 2014 U.S. Smartphone Subscriber Market Share (Jan. 8, 2015), http://www.comscore.com/Insights/Market-Rankings/comScore-Reports-November-2014-US-Smartphone-Subscriber-Market-Share. Cisco, Cisco Visual Networking Index: Global Mobile Data Traffic Forecast Update 2014-2019 at 9-10 (Feb. 3, 2015), http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-index-vni/white_paper_c11-520862.pdf. See Ericsson, Ericsson Mobility Report Appendix: North America, 4 (Nov. 2014), http://www.ericsson.com/res/docs/2014/emr-november2014-regional-appendices-rnam.pdf. For example, early studies showed that broadband users are far more likely than dial-up users to go online to seek out news, look for travel information, share computer files with others, create content, and download games and videos. The Broadband Difference at 2, 12. Netcraft, February 2003 Web Server Survey, http://news.netcraft.com/archives/2003/02/25/february_2003_web_server_survey.html; see also Netcraft, How many active sites are there?, http://news.netcraft.com/active-sites (last visited Jan. 5, 2015). Netcraft, January 2015 Web Server Survey, http://news.netcraft.com/archives/category/web-server-survey/ (last visited Jan. 22, 2014). Cable Modem Declaratory Ruling, 17 FCC Rcd at 4811, para. 18. Id. at 4806, para. 11. See, e.g., Comcast Comments at 57-58; AT&T Comments at 49. See Google, Gmail, https://mail.google.com (last visited Feb. 15, 2015); Yahoo!, Yahoo! Mail, https://mail.yahoo.com (last visited Feb. 15, 2015); see also MailChimp, What Does Your ISP Say About You? (Nov. 26, 2013), http://blog.mailchimp.com/what-does-your-isp-say-about-you/ (showing that in 2013, the top domains for email addresses were Gmail, Hotmail, Yahoo, and AOL, and that the only broadband provider-based email service to be in the top five was Comcast, whose usage is not in proportion to its market share). See Experian, Online Consumer Trends, http://www.experian.com/marketing-services/online-trends.html (last visited Jan. 25, 2015); see also CDT Comments at 11 (citing similar Experian data from June 2014). A 2010 Commission study found that of the time Comcast, AT&T, Time Warner Cable, and Verizon Internet subscribers spend using web-based email, 95 percent is spent using third-party services such as Yahoo! Mail and only 5 percent is spent using ISP-provided services (e.g., webmail.verizon.net). See Federal Communications Commission, Omnibus Broadband Initiative, Broadband Performance: OBI Technical Paper No. 4, at 28 n. 14 (2010) (citing comScore data). See, e.g., Chris Williams, WideNet Consulting, NEVER Use Your ISP’s Email Address, http://www.widenetconsulting.com/blog/never-use-your-isps-email-address/ (last visited Feb. 17, 2015); BBapply, Using ISP-provided Email Addresses – A Bad Idea, http://bbapply.com/faq/email-alternatives.html (last visited Feb. 17, 2015); Josh McCarty, Don’t Use Your ISP Email Address (Jul. 25, 2011), http://joshmccarty.com/2011/07/dont-use-your-isp-email-address/ (last visited Feb. 17, 2015); MacMost, MacMost now 655: Five Reasons Not to Use Your ISP’s Email Service (Jan. 9, 2012), http://joshmccarty.com/2011/07/dont-use-your-isp-email-address/ (last visited Feb. 17, 2015). DNS, caching, and other services that enable the efficient transmission of data over broadband connections are considered in Section IV.C.3. below. See Apple, iCloud, http://www.apple.com/icloud/ (last visited Dec. 31, 2014); Dropbox, Dropbox – Home, https://www.dropbox.com/ (last visited Dec. 31, 2014) (“Your stuff, anywhere”); Carbonite, Carbonite Cloud Backup Services - Online Backup, http://www.carbonite.com (last visited Dec. 31, 2014). GoDaddy.com, GoDaddy – It’s Go Time, http://www.godaddy.com (last visited Dec. 31, 2014); see also AARP Comments at iv (“Web hosting is competitively provided, with U.S. broadband providers not even making the top 25 of U.S. web hosting services.”) (citing ICANN data); CDT Comments at 12 (noting that “some major broadband providers have ceased to offer free personal web page hosting to their subscribers”). WordPress, WordPress.com—Create Your New Website for Free, http://www.wordpress.com (last visited Jan. 5, 2015); Tumblr, Tumblr, http://www.tumblr.com (last Jan. 5, 2014). Netvibes, Netvibes – Dashboard Everything, http://www.netvibes.com/en (last visited Jan. 5, 2015); Yahoo, My Yahoo!, http://my.yahoo.com (last visited Jan. 5, 2015). CDT Comments at 11. Sandvine, Sandvine Report: Netflix and YouTube Account for 50% of All North American Fixed Network Data, (Nov. 11, 2013), https://www.sandvine.com/pr/2013/11/11/sandvine-report-netflix-and-youtube-account-for-50-of-all-north-american-fixed-network-data.html; see also Alcatel-Lucent Comments at 5 (“In the United States alone, Internet video consumption is expected to grow at least 12 times in the next 6 years, and managed video on-demand (‘VoD’) services are expected to grow 28% per year until 2017.”). As previously discussed, Google and Yahoo! also provide the popular email services Gmail and Yahoo! Mail, respectively. See supra para. REF _Ref410905577 \r \h \* MERGEFORMAT 348. See, e.g., Alexa, Top Sites in United States, http://www.alexa.com/topsites/countries/US (last visited Jan. 22, 2015). See id.; see also comScore, comScore Ranks the Top 50 US Digital Media Properties for August 2014, http://ir.comscore.com/releasedetail.cfm?ReleaseID=871631 (last visited Jan. 5, 2015). CDT Comments at 9. CDT contrasts the current state of affairs with an earlier time “when Internet access service providers sought to differentiate themselves by offering ‘walled gardens’ of proprietary content and users looked to their access provider to serve as a kind of curator of the chaos of the Internet.” Id. at 9-10. See id. at 11; see also AARP Comments at 11 (“[T]he broadband service that consumers rely on primarily today is pure transmission between their device and remote computing resources or content of their choice.”). See, e.g., Public Knowledge Comments at Appx. A (compiling “[s]elected examples of [broadband provider] advertisements in July of 2014” to demonstrate that “ISPs advertise their services primarily in terms of the speed and reliability with which they can transmit data to and from third parties”); see also AARP Comments at 10-11; CDT Comments at 10-11. Comcast, XFINITY, http://www.comcast.com/internet-service.html (last visited Dec. 31, 2014); see also CDT Comments at 9 n.8. See Public Knowledge Comments at Appx. A-3. See id. at Appx. A-6. See, e.g., Verizon, Verizon | High Speed Internet, http://www.verizon.com/home/highspeedinternet (last visited Dec. 31, 2014) (“When you’re looking for all value and consistently fast speeds all the time, Verizon High Speed Internet is the answer.”); see also AT&T, AT&T DSL High Speed Internet, http://www.att.com/shop/internet/internet-service.html#fbid=5suMbb0rEF8 (last visited Dec. 31, 2014) (“Make AT&T your Internet provider and take your pick of broadband Internet speeds to suit every need.”). See Public Knowledge Comments at Appx. A-1. Id. at A-6; see also Comcast, XFINITY vs. the Competition, http://www.comcast.com/compare/comcast-xfinity-vs-verizon-fios.html (last visited Jan. 5, 2015). Public Knowledge Comments at Appx. A-2. Public Knowledge Comments at Appx. A-4. See 47 U.S.C. § 153(50) (definition of “telecommunications”). See RCN, High Speed Internet in D.C. Metro Plans & Pricing, http://www.rcn.com/dc-metro/high-speed-internet/services-and-pricing (last visited Feb. 5, 2015); Public Knowledge Comments at Appx. A-3. See Verizon, FiOS Internet, http://www.verizon.com/home/fios-fastest-internet/ (last visited Feb. 5, 2015); see also Public Knowledge Comments at Appx. A-6. See AT&T, AT&T is the nation’s most reliable LTE network, http://www.att.com/network/en/index.html (last visited Jan. 25, 2015); Public Knowledge Comments at Appx. A-2. Comcast, XFINITY, http://www.comcast.com/internet-service.html (last visited Feb. 22, 2015). T-Mobile, Now Calling Can Be Done Virtually Everywhere. Every Wi-Fi Connection Works Like a T-Mobile Tower, http://www.t-mobile.com/offer/wifi-calling-wifi-extenders.html (last visited Feb. 22, 2015). See Public Knowledge Comments at Appx. A-1; see also id. at Appx. A-3, A-5 (similar advertisements from RCN and Time Warner Cable, respectively). See, e.g., CTIA Comments at 8 n.13 (discussing the characteristics of various mobile service offerings); see also Verizon Wireless, Single Line Cell Phone Plans, http://www.verizonwireless.com/wcms/consumer/shop/shop-data-plans/single-line-data-plans.html (last visited Jan. 25, 2015); AT&T, Wireless Plans, http://www.att.com/shop/wireless/plans/mobileshare.html (last visited Jan. 25, 2015); Sprint, The Best Value in Wireless, http://www.sprint.com/landings/datashare/index.html?INTNAV=ATG:HE:DataShare (last visited Jan. 25, 2015); T-Mobile, Simple Choice Plan, http://www.t-mobile.com/cell-phone-plans/individual.html (last visited Jan. 25, 2015). The marketing materials discussed here also indicate that broadband providers hold themselves out indifferently to the public when offering broadband Internet access service. Within particular service areas, broadband providers tend to offer uniform prices and services to potential customers. See, e.g., Public Knowledge Comments at 79; Free Press Comments at 64-65. As discussed above, these offers are widely available through advertisements and marketing materials. See supra paras. REF _Ref411602542 \r \h 351- REF _Ref411602544 \r \h 353. 47 U.S.C. § 153(50). Id. § 153(53). Id. § 153(24). See Universal Service First Report and Order, 12 FCC Rcd at 9177, para. 785 (“We find that the definition of ‘telecommunications services’ in which the phrase ‘directly to the public’ appears is intended to encompass only telecommunications provided on a common carrier basis.”); U.S. Telecom Ass’n v. FCC, 295 F.3d at 1328-29 (telecommunications carriers limited to common carriers); Cable & Wireless, PLC, Order, 12 FCC Rcd 8516, 8521, para. 13 (1997) (“[T]he definition of telecommunications services is intended to clarify that telecommunications services are common carrier services.”). Brand X, 545 U.S. at 1008 (quoting Cable Modem Declaratory Ruling). See Brand X, 545 U.S. at 1008 (Scalia, J., dissenting) (“[T]he telecommunications component of cable-modem service retains such ample independent identity that it must be regarded as being on offer—especially when seen from the perspective of the consumer.”); cf. AT&T Corp. et al., File Nos. E-98-41, E-98-42, E-98-43, Memorandum Opinion and Order, 13 FCC Rcd 21438 (1998), aff’d sub nom. U.S. West Communications, Inc. v. FCC, 177 F.3d 1057 (D.C. Cir. 1999) (analogizing the 1996 Act’s terms “offer” and “provide,” and finding that BOCs were unlawfully “providing” long distance service from Qwest in part based on evidence of marketing it as their own). DNS is most commonly used to translate domain names, such as “nytimes.com,” into numerical IP addresses that are used by network equipment to locate the desired content. See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4810, para. 17 n.74; see also Brand X, 545 U.S. at 987, 999. Caching is the storing of copies of content at locations in a network closer to subscribers than the original source of the content. This enables more rapid retrieval of information from websites that subscribers wish to see most often. See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4810, para. 17 n.76. See 47 U.S.C. § 153(24) (“The term ‘information service’ . . . does not include any use of any such capability for the management, control, or operation of a telecommunications system of the management of a telecommunications service.”). Hereinafter, we refer to this exception as the “telecommunications systems management” exception. One of the dissenting statements asserts that Congress could not have delegated to the Commission the authority to determine whether broadband Internet access service is a telecommunications service because “[h]ad Internet access service been a basic service, dominant carriers could have offered it (and all related computer-processing functionality) outside the parameters of the Computer Inquiries,” but “I cannot find a single suggestion that anyone in Congress, anyone at the FCC, anyone in the courts, or anyone at all thought this was the law during the passage of the Telecommunications Act” in 1996. See Pai Dissent at 37. We disagree with this line of reasoning. First, it contradicts the Supreme Court’s 2005 holding in Brand X, where the Court explicitly acknowledged that the Commission had previously classified the transmission service, which broadband providers offer, as a telecommunications service and that the Commission could return to that classification if it provided an adequate justification. See supra paras. REF _Ref413329227 \r \h 332- REF _Ref413329229 \r \h 334. Second, and underscoring the ambiguity that the Brand X court identified in finding that the Commission had Chevron deference in its classification of broadband Internet access service, the dissenting statement fails to identify any compelling evidence that Congress thought broadband Internet access service was an information service. See, e.g., Comcast Reply at 17-23; CenturyLink Comments at 46-47; USTelecom Comments at 24; NCTA Comments at 30-31; TWC Comments at 9-13; Letter from Michael E. Glover, Senior Vice Pres. and Dep. Gen. Counsel, Verizon to Marlene H. Dortch, Secretary, FCC , GN Docket Nos. 14-28, 10-127, Attach.at 11-12 (filed Oct. 29, 2014) (Verizon Title II White Paper); see also Brand X, 545 U.S. at 991 (observing that the question of whether cable modem service includes separate “offers” of telecommunications service and information service “turns not on the language of the Act, but on the factual particulars of how Internet technology works and how it is provided”). Fox, 556 U.S. at 515 (emphasis added); see also, e.g., Comcast Comments at 54; Verizon Comments at 58. Fox, 556 U.S. at 515-16. Mary V. Harris, 776 F.3d at 24 (quoting Fox, 556 U.S. at 514). Fox, 556 U.S. at 515; see also Mary V. Harris, 776 F.3d at 24. See supra Section IV.C.2. See infra paras. REF _Ref410904314 \r \h \* MERGEFORMAT 366- REF _Ref410904317 \r \h \* MERGEFORMAT 367. See Brand X, 545 U.S. at 985-86 (“[O]ur conclusion that it is reasonable to read the Communications Act to classify cable modem service solely as an ‘information service’ leaves untouched Portland’s holding that the Commission’s interpretation is not the best reading of the statute.”), 989 (explaining that because the term “offering” in section 153(46) admits “of two or more reasonable ordinary usages, the Commission’s choice of one of them is entitled to deference”), 992 (“[T]he statute fails unambiguously to classify the telecommunications component of cable modem service as a distinct offering.  This leaves federal telecommunications policy in this technical and complex area to be set by the Commission.”), 1002-03 (“The questions the Commission resolved in the order under review involve a subject matter [that] is technical, complex, and dynamic.  The Commission is in a far better position to address these questions than we are.”) (internal citation and quotation marks omitted). See also id. at 1003 (Breyer, J., concurring) (“I join the Court’s opinion because I believe that the Federal Communications Commission’s decision falls within the scope of its statutorily delegated authority—though perhaps just barely.”). Fox, 556 U.S. at 515. See, e.g., CenturyLink Comments at 45-46; TWC Comments at 13; NCTA Comments at 33-34; AT&T Comments at 47-48; CTIA Reply at 49-51; Letter from Scott Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, Attach. at 20-21 (filed Dec. 22, 2014) (CTIA Dec. 22, 2014 Ex Parte Letter). See infra Section IV.C.5; see also, e.g., Free Press Comments at 116-20 (evaluating stock prices of major broadband provider companies one month, three months, and six months after the Broadband Classification NOI and showing that those stocks outperformed the broader market, except for Comcast, which was undergoing a merger); id. at 92-93 n.198 (“For example, shortly after former Chairman Genachowski announced his intention to apply common carriage to broadband access services . . . Landell Hobbs, then Time Warner Cable’s Chief Operating Officer, stated on an investor call that the Title II classification proposed by the Genachowski FCC ‘is a light regulatory touch. . . . [The FCC’s] focus is really to put them in a position where they can execute around their [N]ational [B]roadband [P]lan, not to rate regulate or crush investment in our sector. That’s not at all what we believe. So . . . yes, we will continue to invest[.]’ See JP Morgan Global Technology, Media and Telecom Conference: Time Warner Cable, Inc. Management Discussion (May 19, 2010) (emphasis added). A week after the former Chairman’s announcement, Comcast CEO Brian Roberts (a signatory of the May 2014 Broadband for America Letter) responded to questions about the FCC’s Third Way proposal before an audience at the 2010 Cable Show. He said that ‘the government is not a big worry,” and also said that he expected the industry to continue to invest and innovate. See Michelle Ow, Top MSOs Weigh In on Reclassification, SNL Kagan (May 12, 2010). Also, Lowell McAdam, then-CEO of Verizon Wireless, emphasized that the company had no plans to slow investment in its wireless broadband network as a result of the FCC’s move. See Niraj Sheth, Verizon in Talks to License 4G Spectrum to Rural Carriers, Wall Street Journal (May 13, 2010).”); USTelecom, Historical Broadband Provider Capex, http://www.ustelecom.org/broadband-industry-stats/investment/historical-broadband-provider-capex (last visited Jan. 5, 2015) (showing U.S. broadband providers’ capital expenditures continued to increase yearly after the Broadband Classification NOI). See supra paras. REF _Ref410906127 \r \h \* MERGEFORMAT 311- REF _Ref410906129 \r \h \* MERGEFORMAT 313. AT&T Corp. v. City of Portland, 216 F.3d at 877-80. Cable Modem Declaratory Ruling, 17 FCC Rcd at 4802, para. 7. Time Warner Telecom, Inc. v. FCC, 507 F.3d 205 (3d Cir. 2007). Broadband Classification NOI, 25 FCC Rcd 7866; Wireline Competition Bureau Seeks to Refresh the Record in the 2010 Proceeding on Title II and Other Potential Legal Frameworks for Broadband Internet Access Service, GN Docket No. 10-127, Public Notice, 29 FCC Rcd 5856 (Wireline Comp. Bur. 2014). See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125, 160 (2000) (setting aside FDA decision, in 1996, to assert jurisdiction to regulate tobacco after repeatedly disavowing its authority to do so since its inception in 1914). In response to arguments raised in the dissenting statements, we clarify that, even assuming, arguendo, that the facts regarding how BIAS is offered had not changed, in now applying the Act’s definitions to these facts, we find that the provision of BIAS is best understood as a telecommunications service, as discussed below, see infra Sections IV.C.3.b., IV.C.3.c., and disavow our prior interpretations to the extent they held otherwise. 47 U.S.C. § 153(50). Id.; see Barbara A. Cherry and Jon M. Peha, The Telecom Act of 1996 Requires the FCC to Classify Commercial Internet Access as a Telecommunications Service, GN Docket No. 14-28, at 5 (filed Dec. 22, 2014) (Cherry and Peha Dec. 22, 2014 Ex Parte) (“It is clear that IP Packet Transfer means transmission of information that is of the packet sender’s choosing, since the sender chooses what information to put in each packet. Moreover, it is the nature of IP Packet Transfer that the ‘form and content of the information’ is precisely the same when an IP packet is sent by the sender as when that same packet is received by the recipient.”). TWC Comments at 12; see also Letter from Christopher S. Yoo to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 09-191, 10-127, at 2-3 (filed Dec. 22, 2014) (Yoo Dec. 22, 2014 Ex Parte Letter) (asserting that broadband Internet access transmission does not take place between points specified by the user because physical locations are identified by an Internet Protocol address, and end users and applications generally use domain names and rely on a DNS service to map domain names onto IP addresses). See Cherry and Peha Dec. 22, 2014 Ex Parte at 5 (“In each IP packet, the sender places the IP address of the packet’s intended recipient. In some cases, the sender knows the recipient’s IP address already, and in some cases the sender must first look up the desired IP address. Either way, communications is clearly to a point specified by the user sending the packet.”); AT&T Reply at 101 (stating that once traffic is delivered to AT&T via interconnection, “AT&T, just like any other ISP, delivers that traffic to its intended destination”). For example, in transmissions from the user to an edge provider, a user either directly specifies the domain name of the edge provider or utilizes a search engine to determine the domain name. The application that a user chooses then uses DNS to translate the domain name into an IP address associated with the edge provider, which is placed into the packet as its destination. For transmissions from an edge provider to a user, the edge provider places the user’s IP address into the packet as the destination IP address. Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report and Order, 12 FCC Rcd 8776, 9175, para. 780 (1997) (Universal Service First Report and Order), rev’d in part on other grounds Texas Office of Public Utility Counsel v. FCC, 183 F.3d 393 (5th Cir. 1999); see also 47 U.S.C. § 332(c)(1) (providers of commercial mobile radio service shall be treated as common carriers). Universal Service First Report and Order, 12 FCC Rcd at 9175, para. 780; see also AT&T Corp. v. Winback & Conserve Program, Inc., File No. E-97-02, Memorandum Opinion and Order, 16 FCC Rcd 16074, 16075, para. 2 (2001). Request for Review by InterCall, Inc. of Decision of Universal Service Administrator, CC Docket No. 96-45, Order, 23 FCC Rcd 10731, 10734-35, para. 11 (2008). See Yoo Dec. 22, 2014 Ex Parte Letter at 2. See, e.g., U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration Petition for Permanent Reassignment of Three Toll Free Suicide Prevention Hotline Numbers; Toll Free Service Access Codes, WC Docket No. 07-271, CC Docket No. 95-155, Memorandum Opinion and Order and Order on Review, 24 FCC Rcd 13022, 13023, para. 2 (2009) (“The hotlines are routing mechanisms for hundreds of local suicide prevention organizations. When a person calls a hotline, the call is directly routed to a trained crisis counselor in the organization local to the caller who can assess the situation and determine the proper steps to follow to assist the caller.”). See Internet Engineering Task Force, Requirements for Internet Hosts – Communications Layers, RFC 1122 (Oct. 1989), https://tools.ietf.org/html/rfc1122. Cherry and Peha Dec. 22, 2014 Ex Parte at 8; see also, e.g., NTCA Comments at 10 (“The transport, routing, conveyance, and exchange of data over networks is transparent, and involves no storage, transformation, or other manipulation of data.”); CDT Comments at 29 (“Broadband providers are not engaging in their own speech through the provision of Internet access. They are simply communications conduits.”); id. at 28-30; EFF Comments at 14 (“Many competitive providers offer content and services similar to what the ISPs might bundle with their transmission, e.g., email, web browsers, search engines, etc., but those services do not provide the transmission service itself. Even if a transport provider bundles these other services along with its transmission service, they remain distinct from that transmission component.”); Free Press Comments at 63 (“[N]othing in the offering of the service suggests that the ISP will be changing the form or content of the information. And the broadband service itself does not in fact change the form or content of the information. For if it did, many of the online services that are widely used would not function properly.”) (emphasis in original). A BIAS provider, when utilizing the Internet Protocol, may fragment packets into multiple pieces. However, such fragmentation does not change the form or content, as the pieces are reassembled before the packet is handed over to the application at the destination. See Internet Protocol, DARPA Internet Program Protocol Specification, RFC 791 (Sept. 1981), https://tools.ietf.org/html/rfc791. Cherry and Peha Dec. 22, 2014 Ex Parte at 5; see also Internet Protocol, DARPA Internet Program Protocol Specification, RFC 791, para. 1.2 (Sept. 1981), https://tools.ietf.org/html/rfc791 (“The internet protocol is specifically limited in scope to provide the functions necessary to deliver a package of bits (an internet datagram) from a source to a destination over an interconnected system of networks.”). For example, when a person sends an email, he or she expects that the content of the email, and any attachments, to be delivered to the recipient unaltered in content or form. We note that a user may choose to use an application, such as email, that is a separate information service offered by the BIAS provider. When this occurs, the provider of the information service may place information into the packet payload that changes the form or content. However, this change in form or content is purely implemented as part of the separable information service. The broadband provider, in transmitting the packet via BIAS, does not alter the form or content of the packet payload. 47 U.S.C. § 153(53). See supra Section IV.C.2. See, e.g., Free Press Comments at 64-65; Public Knowledge Comments at 79. See NARUC I, 525 F.2d at 644 (citing Lone Star Steel Co. v. McGee, 380 F.2d 640, 648 (5th Cir. 1967) (whether an entity is a common carrier “depends not upon its corporate character or declared purposes, but upon what it does”) (citations omitted)). See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14879-81, paras. 48-51 (declining to evaluate the market for broadband Internet access service on a local market basis, and instead finding that the broadband Internet access market is “more appropriately analyzed in view of larger trends in the marketplace, rather than exclusively through the snapshot data that may quickly and predictably be rendered obsolete as [the] market continues to evolve”); Cable Modem Declaratory Ruling, 17 FCC Rcd at 4809 n.69 (“We recognize that not all cable operators include all of these functions in their cable modem service offerings.”); id. at 4822-23, para. 38 (basing cable modem classification on how service was offered generally, “regardless of whether every cable modem service provider offers each function that could be included in the service”). See Public Knowledge Comments at 79; but see Letter from Gary L. Phillips, General Attorney & Assoc. General Counsel, AT&T to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 6-7 (filed Feb. 2, 2015) (AT&T Feb. 2, 2015 Ex Parte Letter) (asserting that broadband providers may decide on a case-by-case basis whether to service a particular end user, what connection speeds to offer, and at what price). See Federal-State Joint Bd. On Universal Serv., CC Docket No. 96-45, Order on Remand, 16 FCC Rcd 571, 573-74, paras. 7-10 (2000), aff’d U.S.Telecom Ass’n v. FCC, 295 F.3d 1326, 1332-33 (D.C. Cir. 2002) (“[A] carrier offering its services only to a legally defined class of users may still be a common carrier if it holds itself out indiscriminately to serve all within that class.”); NARUC I, 525 F.2d at 641 (“One may be a common carrier though the nature of the service rendered is sufficiently specialized as to be of possible use to only a fraction of the total population. And business may be turned away either because it is not of the type normally accepted or because the carrier’s capacity has been exhausted.”). See Orloff v. FCC, 352 F.3d 415, 419-20 (D.C. Cir. 2003). To the extent our prior precedents might suggest otherwise, we disavow such an interpretation in this context. See, e.g., AT&T Feb. 2, 2015 Ex Parte Letter at 7; Verizon Dec. 17, 2014 Ex Parte Letter at 7-9; Letter from Comcast to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 3-4 (filed Jan. 23, 2015) (Comcast Jan. 23, 2015 Ex Parte Letter). Commission precedent “holds that a carrier will not be a common carrier ‘where its practice is to make individualized decisions in particular cases whether and on what terms to serve.’” Universal Service First Report and Order, 12 FCC Rcd at 9178, para. 785. See, e.g., COMPTEL Feb. 19, 2015 Ex Parte Letter at 8. See, e.g., Comcast Reply at 38 n. 131 (“Netflix could have chosen from a number or routes, including routes through various transit providers and CDNs, to reach Comcast’s network.”); Cox Reply at 21 (“ ISPs interconnect with a variety of transit and [CDN] providers, ensuring that edge providers have multiple cost effective routes to choose from to reach each ISP’s customers.”); TWC Reply at 16 (“With countless partners from which to choose, content providers are not faced with a gatekeeper limiting their use of peering, transit, and CDN arrangements.”); id. at 18 (“TWC (like other ISPs) has substantial interconnection capacity available through a multiplicity of transit routes, and edge providers (rather than ISPs) control which routes their traffic will traverse.”); Suddenlink Reply at 7 (“In today’s market, there are multiple paths across the backbone and into and out of operator networks.”); AT&T Reply at 100-101 (explaining that there are often dozens of different ways to deliver traffic onto the ISP’s network). See supra note NOTEREF _Ref413749654 \h 1015. See, e.g., NCTA Comments at 80-81; Verizon Dec. 17, 2014 Ex Parte Letter at 8-9; Comcast Comments at 36-37; see also Vitelco v. FCC, 198 F.3d 921, 925 (1999) (“Noting that the Bureau had found that ‘AT&T–SSI would have to engage in negotiations with each of its customers on the price and other terms which would vary depending on the customers’ capacity needs, duration of the contract, and technical specifications,’ the Commission found that AT&T–SSI ‘will not sell capacity in the proposed cable indifferently to the public.’”). See Letter from Chris Hutchins, Liberty Global, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. at 22 (filed Nov. 25, 2014) (“A survey by OECD, published in early 2013, reported that 99.51% of the 142.210 surveyed Peering agreements were ‘handshake agreements’ in which the parties agreed to commonly understood terms without creating a written document.”); Google Feb. 20, 2015 Ex Parte Letter at 1-2. See, e.g., Letter from Kathryn A. Zachem, Senior Vice President, Regulatory and State Legislative Affairs, Comcast Corporation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 8 (filed Jan. 30, 2015). See infra para. REF _Ref410915393 \r \h \* MERGEFORMAT 424. Cf. Orloff v. FCC, 352 F.3d 415 (D.C. Cir. 2003) (allowing individualized negotiation under sections 201 and 202 of the Act). If an offering meets the definition of telecommunications service, then the service is also necessarily a common carrier service. See Universal Service First Report and Order, 12 FCC Rcd at 9178, para. 785 (“We find that the definition of ‘telecommunications services’ in which the phrase ‘directly to the public’ appears is intended to encompass only telecommunications provided on a common carrier basis.”); U.S. Telecom Ass’n v. FCC, 295 F.3d at 1328-29 (noting that telecommunications carriers are limited to common carriers); Cable & Wireless, PLC, Order, 12 FCC Rcd 8516, 8521, para. 13 (1997) (“[T]he definition of telecommunications services is intended to clarify that telecommunications services are common carrier services.”). 47 U.S.C. § 153(24). Brand X, 545 U.S. at 998 (emphasis added); see generally Cable Modem Declaratory Ruling, 17 FCC Rcd at 4821-23, paras. 37-38. Brand X, 545 U.S. at 999; see Cable Modem Service Declaratory Ruling, 17 FCC Rcd at 4822-23, para. 38 n.153 (noting that “[n]early every cable modem subscriber . . . accesses the DNS that is provided as part of the service” in connection with cable modem service communications). Cable Modem Declaratory Ruling, 17 FCC Rcd at 4821-22, para. 37 n.147 (internal citation omitted) (emphasis in original). Brand X, 545 U.S. at 1012-13 (Scalia, J., dissenting) (citing 47 U.S.C. § 153(20) (defining “information service”)). The definition of “information service” has since been moved from subsection 20 to subsection 24 of section 3 but has not itself been revised. The telecommunications systems management exception in section 3(24) provides that the term “information service” “does not include” the use of any data processing, storage, retrieval or similar capabilities “for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” 47 U.S.C. § 153(24). See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4822, para. 38 n.150 (containing a passing reference to the telecommunications systems management exception). The Commission’s subsequent conclusions that wireline broadband services offered by telephone companies and broadband offered over power lines were unitary information services followed the same theory, also without any analysis of the telecommunications systems management exception. See Wireline Broadband Classification Order, 20 FCC Rcd at 14864, para. 15; BPL-Enabled Broadband Order, 21 FCC Rcd at 13284-87, paras. 5-9. See Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as Amended, CC Docket No. 96-149, First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905, 21958, para. 107 (1996) (Non-Accounting Safeguards Order), recon., 12 FCC Rcd 2297, 2298-99, para. 2 (1997). Throughout the history of computer-based communication, Title II covered more than just the simple transmission of data. Some features and services that met the literal definition of “enhanced service,” but did not alter the fundamental character of the associated basic transmission service, were considered “adjunct-to-basic” and treated as basic (i.e., telecommunications) services even though they went beyond mere transmission. See Computer II Final Decision, 77 FCC 2d at 421, para. 98; AT&T Corp. Petition for Declaratory Ruling Regarding Enhanced Prepaid Calling Card Services, Regulation of Prepaid Calling Card Services, WC Docket Nos. 03-133, 05-68, Order and Notice of Proposed Rulemaking, 20 FCC Rcd 4826, 4831, para. 16 (2005), aff’d, AT&T Corp. v. FCC, 454 F.3d 329 (D.C. Cir. 2006). Thus, the Commission’s definition of “basic services” (the regulatory predecessor to “telecommunications services”) includes, among other things, those intelligent features that run the network or improve its usefulness to consumers, such as a carrier’s use of “companding [compressing/expanding] techniques, bandwidth compression techniques, circuit switching, message or packet switching, error control techniques, etc. that facilitate economical, reliable movement of information does not alter the nature of the basic service.” Computer II Final Decision, 77 FCC 2d at 420, para. 95; see also Computer III Phase I Order, 104 FCC 2d at 968, para. 10 (“Data processing, computer memory or storage, and switching techniques can be components of a basic service if they are used solely to facilitate the movement of information.”). Basic service can also include “memory or storage within the network . . . used only to facilitate the transmission of the information from the origination to its destination,” Computer II Final Decision, 77 FCC 2d. at 420, para. 95, and certain types of protocol processing. Non-Accounting Safeguards Order, 11 FCC Rcd at 21957-58, para. 106, recon., 12 FCC Rcd at 2298-99, para. 2. See generally CDT Comments at 15; Kendall Koning Comments at 28-29; Vimeo Reply at 10; Vonage Comments at 39. See North American Telecommunications Association Petition for Declaratory Ruling Under §64.702 of the Commission's Rules Regarding the Integration of Centrex, Enhanced Services, and Customer Premises Equipment, 101 FCC 2d 349, 359-61, paras. 24, 27, 28 (1985) (NATA/Centrex Order). Non-Accounting Safeguards Order, 11 FCC Rcd at 21958, para. 107 n.245. See also NATA/Centrex Order, 101 FCC 2d at 360, para. 26 (“In the case of speed dialing and call forwarding, the stored telephone numbers specified by the customer and the customer’s interaction with that stored information serve but one purpose: facilitating establishment of a transmission path over which a telephone call may be completed. . . . When a customer uses directory assistance, that customer accesses information stored in a telephone company data base. . . . An offering of access to a data base for the purpose of obtaining telephone numbers may be offered as an adjunct to basic telephone service.”). See, e.g., Telephone Number Portability, CC Docket No. 95-116, Notice of Proposed Rulemaking, 10 FCC Rcd 12350, 12354, para. 10 (1995) (“[T]elephone numbers with certain NPA codes [such as 800, 900, and 500] are portable between geographic locations because the IXCs are able to ‘map’, or translate, the dialed, non-geographic number into a geographic number.”); Telephone Number Portability, CC Docket No. 95-116, Second Report and Order, 12 FCC Rcd 12281, 12287-88, para. 8 (1997) (“Carriers routing telephone calls to customers who have ported their telephone numbers from one carrier to another query the local Service Management System (SMS) database to obtain the location routing number that corresponds to the dialed telephone number. This database query is performed for all calls to switches from which at least one number has been ported. Based on the location routing number, the querying carrier then would route the call to the carrier serving the ported number.”) (citations omitted); Application of Bellsouth Corporation, Bellsouth Telecommunications, Inc., and Bellsouth Long Distance, Inc., for Provision of In-Region, Interlata Services In Louisiana, CC Docket No. 98-121, Memorandum Opinion and Order, 13 FCC Rcd 20599, para. 275 n.858 (1998) (under an initial, interim form of local number portability, “the carrier that originally served the called customer redirects the telephone calls by translating the dialed number to a new transparent number associated with the acquiring carrier’s switch, essentially placing a second telephone call to the customer’s new location”); Numbering Resource Optimization, CC Docket No. 99-200, Report and Order and Further Notice of Proposed Rulemaking, 15 FCC Rcd 7574, 7623, para. 118 n.242 (2000) (“[T]o facilitate proper network routing in a thousands-block number pooling environment, every service provider’s existing LNP SCP database within the pooling area would store specific LRN routing information for thousand number blocks within the same NXX. In addition, each service provider’s LNP mechanism would query its database for calls to pooled numbers allocated to other service providers.”). Consider also the role that telephone operators traditionally played in routing telephone calls. Traditional telephony required a telephone operator to route and place calls requested by the customer. We do not believe that anyone would argue that such arrangements would turn traditional telephone service into an information service. Petitions for Forbearance from the Application of Section 272 of the Communications Act of 1934, As Amended, to Certain Activities, Bell Operating Companies, CC Docket No. 96-149, Memorandum Opinion and Order, 13 FCC Rcd 2627, 2639, para. 18 (Com. Car. Bur. 1998) (1998 272 Forbearance Order). AT&T Reply at 39-40 (emphasis in original). 1998 272 Forbearance Order, 13 FCC Rcd at 2638-39, para. 18 & n.70. See, e.g., Vimeo Reply at 10 (“DNS’ analog equivalents—the old-time switchboard, live operator, directory assistance, or a phone book—never made Ma Bell an ‘information service.’”); CDT Comments at 14. Notwithstanding the close resemblance between DNS and these features that the Commission previously has found to be within the telecommunications systems management exception, USTelecom contends that “DNS does not manage or control a telecommunications system or a telecommunications service.” USTelecom Reply at 32. As with call forwarding, speed dialing, and computer-provided directory assistance, however, DNS manages the network in the sense of facilitating efficient routing and call completion. In any event, even if DNS were not viewed as facilitating network management, it clearly would fall within the exception as a capability used for the “operation of a telecommunications system.” 47 U.S.C. § 153(24). Responding to assertions in one of the dissenting statements, (Pai Dissent at 36-37), we expressly find this rationale applies equally to other services that arguably serve the interests of subscribers, such as, for example, caching. While these services do provide a benefit to subscribers in the form of faster, more efficient service, they also serve to manage the network by facilitating efficient retrieval of requested information, reducing a broadband provider’s costs in the provision of the service. In addition, caching and other services which provide a benefit to subscribers, like DNS, also serve as a capability used for the operation of a telecommunications system by enabling the efficient retrieval of information. AT&T Reply at 38. Id. at 41. Brand X, 545 U.S. at 997-98 (citing Federal-State Joint board on Universal Service, 13 FCC Rcd 11501, 11530, para. 60 (1998)). Brand X, 545 U.S. at 998. See AT&T Reply at 40-41. In the context of voice telephone service, the Commission has recognized that the availability of reverse directory capability does not transform that service from a telecommunications service into an information service. See, e.g., Regulation of Prepaid Calling Card Services, WC Docket No. 05-68, Declaratory Ruling and Report and Order, 21 FCC Rcd 7290, 7294-96, paras. 11-17 (2006) (finding that the ability of callers to access functions such as a reverse directory service did not convert calling card services from telecommunications services into information services). Cherry and Peha Dec. 22, 2014 Ex Parte at 6. Id. at 7. See AT&T Comments at 48; Comcast Comments at 58. See, e.g., AARP Comments at 11; CDT Comments at 14 (“DNS service, much like e-mail, web-hosting, and the other services discussed above, is available from third-party sources. Google Public DNS processes about 130 billion queries per day. OpenDNS likewise processes over 50 billion daily. Internet users are free to use the DNS provider of their choice, and switching between them does not require altering any aspect of the Internet access service itself. Users need only quickly update a single setting in their operating system’s Internet preferences to point DNS requests to another server.”); Kendall Koning Comments at 29; Public Knowledge Comments at 78. To be clear, we do not find that DNS is a telecommunications service (or part of one) when provided on a stand-alone basis by entities other than the provider of Internet access service. In such instances, there would be no telecommunications service to which DNS is adjunct, and the storage functions associated with stand-alone DNS would likely render it an information service. See Petition for Declaratory Ruling that Pulver.Com’s Free World Dialup Is Neither Telecommunications nor a Telecommunications Service, WC Docket No. 03-45, Memorandum Opinion and Order, 19 FCC Rcd 3307, 3315, para. 13 (2004) (when computer processing functions falling within the telecommunications systems management exception are offered on a stand-alone basis, they are not “transformed into telecommunications services”). See Cherry and Peha Dec. 22, 2014 Ex Parte at 7. See, e.g., CDT Comments at 15 (stating that “the services cited in the Cable Modem Order are all either wholly separable and available from third parties; so directed at routing and other critical network functionality as to be considered analogous to adjunct-to-basic services; or, in the case of DNS lookup, both”). We also observe that add-on services to DNS, such as DNS security extensions, do not convert BIAS into an information service. DNS security extensions provide authentication that the messages sent between DNS servers, and between a DNS server and a DNS client, are not altered. As such, DNS security extensions facilitate accurate DNS information, and, like DNS itself, are incidental to BIAS, and do not alter the fundamental character of BIAS. We accordingly disagree with the contrary interpretation of the role of DNS security extensions described in one of the dissenting statements. Pai Dissent at 35-37. See, e.g., Bright House Reply at 6-7; AT&T Reply at 54. Cable Modem Declaratory Ruling, 17 FCC Rcd at 4810 n.76. Compare Cable Modem Declaratory Ruling, 17 FCC Rcd at 48909-10, para. 17 & n.76 (identifying caching as part of the Internet connectivity function) with id. at 4822, para. 38 (identifying other functionality—but not caching—as a basis for the ultimate information service classification). To the extent that Brand X can be read as reaching a different conclusion, we find the Court’s characterization of “caching” as enabling “subscribers [to] reach third-party Web sites via the World Wide Web, and browse their contents, [only] because their service provider offers the capability for . . . acquiring, [storing] . . . retrieving [and] utilizing information” to be technically inaccurate. See Brand X, 545 U.S. at 999-1000 (internal quotations omitted). Cable Modem Declaratory Ruling, 17 FCC Rcd at 4810 n.76. Caching is akin to a “store and forward technology [used] in routing messages through the network as part of a basic service.” See Computer II Final Decision, 77 FCC 2d at 421, para. 97 n.35 (emphasis omitted). See, e.g., CDT Comments at 14 (“Caching, too, meets the criteria for an adjunct-to-basic service that should not turn an otherwise telecommunications service into an information service. This function involves simply re-routing traffic to alternate copies of websites stored closer to the subscriber. Its purpose is to reduce network congestion and improve the perceived speed of users’ connections. It does not alter the information or provide access to information other than that requested by subscribers. In short, it is simply a technical tool to speed network performance.”). Third party “content delivery networks” provide extensive caching services. See Akamai Comments at 3 (explaining that it deploys its technologies deep in the networks of last-mile broadband Internet providers and caches content locally, and stating that it has deployed approximately 150,000 servers in thousands of locations inside over 1,200 global networks located in over 650 cities and 92 countries); Akamai, Facts & Figures, http://www.akamai.com/html/about/facts_figures.html (last visited Jan. 2, 2015) (“Akamai delivers daily Web traffic reaching more than 15 Terabits per second.”). See, e.g., AT&T Comments at 48-49 (explaining that it includes, as part of its residential broadband service, “security screening, spam protection, pop-up blockers, parental controls, email with virtually unlimited storage, instant messaging with enhanced voice communication, a streaming music service, access to programing content, on-the-go access to the entire national AT&T Wi-Fi Hot Spot network, and the att.net Toolbar for quick access back to a customer’s homepage, email, search, games, videos, music, and AT&T support tools”); Comcast Comments at 57; Verizon Comments at 59-60; NCTA Comments at 34-35; TWC Comments at 12 (stating that TWC also provides “highly valued tools such as security screening, spam protection, anti-virus and anti-botnet technologies, pop-up blockers, parental controls, online email and file storage, and a customizable home page for each user”); T-Mobile Comments at 20 (arguing that the transition to LTE and, more generally, to IP-based mobile networks exposes mobile networks to new and rapidly evolving security threats, and that “[s]uch threats require the use of network intelligence and visibility into real-time traffic patterns to improve detection of malicious attacks and accidental traffic floods, as well as scalable, distributed, and automated security tools for discovery and remediation of problems. These tools tightly integrate processing and transmission functions”); CenturyLink Comments at 44-45; Charter Comments at 14-15; ACA Comments at 54-60; USTelecom Comments at 26-27; USTelecom Reply at 29. Non-Accounting Safeguards Order, 11 FCC Rcd at 21958, para. 107 n.245. See, e.g., CDT Comments at 14-15 (“Like caching, [network security, network monitoring, capacity management, and troubleshooting] are intended to preserve a fast, uncongested, working network. They are most often largely invisible to consumers, in the sense that most consumers are unaware of how they relate to their connection; rather, these activities are simply part and parcel of running a network.  To the extent that security services are aimed at securing subscribers’ computers and not the network itself, they are typically offered as optional services amid a sea of third-party anti-virus and anti-malware competitors.”). CTIA Reply at 49. See, e.g., TWC Comments at 12. See Cherry and Peha Dec. 22, 2014 Ex Parte at 7. See, e.g., Independent Documentary Association Reply at 9; Cherry and Peha Dec. 22, 2014 Ex Parte at 7. See supra note NOTEREF _Ref410906348 \h \* MERGEFORMAT 1029. Comcast Reply at 22 (internal quotation omitted); see also Verizon Comments at 60-61. See supra note NOTEREF _Ref410906348 \h \* MERGEFORMAT 1029. See supra note NOTEREF _Ref410906409 \h \* MERGEFORMAT 1032. See, e.g., Verizon Comments at 59-60 (describing how it now integrates additional features into its broadband offerings, including “cloud-based services” and “caching servers and CDNs that store media content to enable consumers to access that content at faster speeds”); AT&T Comments at 48-49; TWC Comments at 12; NCTA Dec. 23, 2014 Ex Parte Letter at 10-11. See Brand X, 545 U.S. at 1009, n.4 (Scalia, J., dissenting); see also, e.g., Free Press Comments at 66-67; AARP Comments at 11; CDT Comments at 10; Cherry and Peha Dec. 22, 2014 Ex Parte at 6, 8. See, e.g., WGAW Reply at 33 (“While BIAPs sometimes bundle this telecommunications capability with true information services—such as email services, web-hosting, newsgroups, or anti-virus software—those services are not fundamental to the BIAS service itself. Consumers can and often do obtain those information services from third parties. But more importantly, the BIAS service’s functionality would in no way be diminished if a provider failed to provide any of those services, and it is unclear that most subscribers would even notice their absence.”); CDT Comments at 11; Free Press Comments at 66-67; AARP Comments at 11. Brand X, 545 U.S. at 997-98 (quoting Stevens Report, 13 FCC Rcd at 11530, para. 60); see also Independent Data Communications Manuf. Ass’n, Inc., Memorandum Opinion and Order, 10 FCC Rcd 13717, 13723, paras. 42, 44-45 (Com. Car. Bur. 1995) (rejecting the argument that AT&T’s bundling of enhanced protocol conversion with basic frame relay service renders the whole service an enhanced service). Brand X, 545 U.S. at 998. See supra Section IV.C.2. See, e.g., Douglas Sicker & Joshua Mindel, Refinements of a Layered Model for Telecommunications Policy, 1 J. Telecomm. & High Tech L. 69, 86-88 (2002); Rob Frieden, Adjusting the Horizontal and Vertical in Telecommunications Regulation: A Comparison of the Traditional and a New Layered Approach, 55 Fed. Comm. L.J. 207 (2003). See, e.g., Andrew S. Tanenbaum & David J. Wetherall, Computer Networks, 29 (Prentice-Hall, 5th ed. 2011) (“The purpose of each layer is to offer certain services to the higher layers while shielding those layers from the details of how the offered services are actually implemented. In a sense, each layer is a kind of virtual machine, offering certain services to the layer above it.”). See, e.g., OTI Comments at 27-28. See, e.g., Consumer Reports, What Is The Internet of Things, and Why Should You Care? (Aug. 14,2014), http://www.consumerreports.org/cro/news/2014/08/what-is-the-internet-ofthings/index.htm (describing the Internet of Things and predicting its widespread adoption by consumers in the near future); Cisco, The Zettabyte Era: Trends and Analysis at 1 (June 10, 2014), http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-index-vni/VNI_Hyperconnectivity_WP.html (describing the “tangible growth” of the next wave of the Internet in which people, processes, data, and things connect to the Internet and each other). See, e.g., GSMA Connected Life, Understanding the Internet of Things (July 2014) (discussing how the Internet of Things has the potential to improve energy efficiency, security, health, education and other aspects of daily life). See Wireline Broadband Classification Order, 20 FCC Rcd at 14900-903, paras. 89-95. See Free Press Comments at 46; Free Press Reply at 30; NTCA Comments at 9; NTCA Reply at 7-8. NTCA Reply at 8; see also NTCA Comments at 9-10. Wireless Broadband Classification Order, 22 FCC Rcd at 5913, para. 32. See, e.g., USTelecom Reply at 25-26; Alcatel-Lucent Comments at 8; Free State Comments at 20 (“Congress did not intend for the Commission to subject broadband ISPs to Title II regulations. Nor did Congress intend for the Commission to use its forbearance authority as a loophole to evade Congress’ intent to facilitate deregulatory approaches.”). Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009) (citing 47 U.S.C. § 1302). Wireline Broadband Classification Order, 20 FCC Rcd at 14855, para. 1; Wireless Broadband Classification Order, 22 FCC Rcd at 5902, para. 2. See also infra Section IV.C.5 (discussing the effects of our classification decision on investment and innovation in the Internet ecosystem). See, e.g., CenturyLink Comments at 72 (asserting that because of concerns about the Commission’s legal authority in this area, the Commission should “consider seeking first to address issues via referrals to appropriate technical advisory groups”); Roslyn Layton Comments at 18-19 (asserting that the Commission should eschew new rules and pursue a multi-stakeholder governance model backed by the FTC's antitrust authority); Bright House Comments at 26-27; Comcast Comments at 70; Verizon Comments at 17; Telefonica Internacional USA Comments at 6; TechFreedom & ICLE Legal Comments at 99-100. See, e.g., Mark Cooper/CFA Comments at 3 (arguing that it is “a mistake to believe that [multi-stakeholder, self-regulatory institutions] would have succeeded without the strong action of the FCC to create and preserve the space of freedom for entrepreneurial experimentation”). See Verizon Title II White Paper at 1-5; NCTA Dec. 23, 2014 Ex Parte Letter at 11-12; Letter from Gary L. Phillips, AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 and 10-127 (filed Feb. 2, 2015). Verizon Title II White Paper at 4. See NARUC I, 525 F.2d at 644. FCC v. Midwest Video Corp., 440 U.S. 689, 705 (1979) (Midwest Video II); see also Verizon, 740 F.3d at 651-52 (discussing Midwest Video II). 47 U.S.C. § 153(51). See AT&T Comments at 41-44; CenturyLink Comments at 41; Verizon Comments at 61-62. See supra paras. REF _Ref410904314 \r \h \* MERGEFORMAT 366- REF _Ref410906734 \r \h \* MERGEFORMAT 372. See supra paras. REF _Ref410906750 \r \h \* MERGEFORMAT 376- REF _Ref410906752 \r \h \* MERGEFORMAT 378; see also Brand X, 545 U.S. at 997-98. See Pai Dissent at 32. 47 U.S.C. § 230(f). (Defining the term to mean “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet . . .”); see also id. § (a)(2) (referring to “the Internet and other interactive computer services”). See Telecommunications Act of 1996, Pub. L. No 104-104, 110 Stat. 56, §509. For one thing, the phrase “any information service, system or access software provider”, see id. § (f), may be broader in scope than the term “information service” as defined in section 3 of Act. To read the text otherwise would suggest that Congress intended the liability protections of section 230 to apply narrowly, excluding, for example, local exchange carriers that offered DSL, which as noted above was classified as a telecommunications service until 2005. See supra para. REF _Ref413317495 \r \h 39. Pai Dissent at 19. See Pai Dissent at 20-21 (quoting 2014 Open Internet NPRM, 29 FCC Rcd at 5613-14, paras. 149-50). Thus, at the very outset, in addition to “the [section 706] blueprint offered by the D.C. Circuit” on which the dissent now seeks to focus, Pai Dissent at 16-19, the Commission made clear that in looking for the “best approach to protecting and promoting Internet openness,” it “will seriously consider the use of Title II,” “seeks comment on the benefits of both . . ., including the benefits of one approach over the other,” and “emphasize[s] . . . that the Commission recognizes that both section 706 and Title II are viable solutions and seek[s] comment on their potential use.” See, e.g., NPRM, 29 FCC Rcd at 5563, para. 4. See also id. at 5593, 5595-96, paras. 89, 96 (seeking comment on whether to adopt a no-blocking rule “that does not allow for priority agreements with edge providers” and how to do so consistent, inter alia, with Title II), id. at 5600, para. 112 (seeking comment on alternative to standard of commercial reasonableness), id. at 5604, para. 121 (seeking comment on unreasonable discrimination standard, including application of sections 201 and 202), id. at 5612-16, paras. 148-155 (specific questions about applicability of Title II and forbearance approaches, including forbearance as to specific Title II provisions). The NPRM in this proceeding is thus nothing like the NPRM that was at issue in Prometheus. Prometheus Radio Project v. FCC, 652 F.3d 431, 445-46, 450-51 (3rd Cir. 2011). We also note that, under the APA, notice-and-comment rulemaking requirements apply only to the extent that we herein adopt legislative rules. 5 U.S.C. §§ 553(b)(A), 553(d)(2). See e.g., AT&T Comments at 39-72; Bright House Comments at 20-29; CenturyLink Comments at 36-51; Charter Comments at 13-21; Comcast Comments at 42-67; Cox Comments at 30-31; Frontier Communications Comments at 2-4; Time Warner Comments at 9-23; T-Mobile Comments at 18-24; Verizon Comments at 46-69. And parties on the other side of the issue just as vigorously argued in support of our approach in their comments. See, e.g., Ad Hoc Comments at 2-7; CDT Comments at 8-16; Cogent Comments at 9-12; Common Cause Comments at 13-16; Consumers Union Comments at 10; EFF Comments at 13-17; Etsy Comments at 9; Free Press Comments at 54-90; New America Foundation Comments at 22-27; Public Knowledge Comments at 60-104; WGAW Comments at 28-31. Dissents to the NPRM likewise reflect that this approach was on the table. See 2014 Open Internet NPRM, 29 FCC Rcd at 5653-55 (dissenting Statement of Commissioner Pai) (recognizing “[i]t’s not news that people of good faith disagree” on the right approach, stating that “[s]ome would like to regulate broadband providers as utilities under Title II,” and discussing the scope of Title II’s “unjust or unreasonable discrimination” requirement, the consequences of reclassification under Title II, and the alleged regulatory uncertainties posed under either section 706 “or Title II”). Second Report and Order Implementing Sections 3(n) and 332 of the Communications Act, as Amended by Section 6002(b) of the Omnibus Reconciliation Act of 1993, GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411, 1413, para. 2 (1994) (Second CMRS Report and Order). In describing the background against which Congress enacted the Omnibus Budget and Reconciliation Act of 1993, the Commission noted that it had traditionally classified mobile services into the categories of public mobile services subject to common carrier regulation and private land mobile services, such as taxi dispatch services, developed to provide service tailored to the needs of particular groups, and not subject to common carrier regulation. Id. at 1414, paras. 3-4. The Commission noted that the series of its decisions in this context created the prospect of direct competition between private land mobile services and similar common carrier services under disparate regulatory regimes, for example, by permitting the predecessor of Nextel to develop an SMR system “comparable or superior to cellular in quality.” Id. at 1415, para. 7. The Commission noted that, in revising Section 332, Congress “replaced traditional regulation of mobile service with an approach that brings all mobile service providers under a comprehensive, consistent, regulatory framework.” Id. at 1417, para. 12. 47 U.S.C. § 332(d)(1). “Mobile service” is defined under the Commission’s rules to mean “a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves . . . .” 47 C.F.R. § 20.3. The Second CMRS Report and Order defined the statutory phrase “for profit” to include: “any mobile service that is provided with the intent of receiving compensation or monetary gain.” See Second CMRS Report and Order, 9 FCC Rcd at 1427, para. 43. In the Second CMRS Report and Order, the Commission determined that a service is available “to the public” if it is “offered to the public without restriction in who may receive it.” Id. at 1439, para. 65. 47 U.S.C. § 332(d)(2). The commercial mobile service provisions of the Act are implemented under section 20.3 of the Commission’s rules, which employs the term “commercial mobile radio service” (CMRS). 47 C.F.R. § 20.3. Id. Second CMRS Report and Order, 9 FCC Rcd at 1436, para. 59; see also Letter from Michael Calabrese, Dir. Wireless Future Project, New America Open Technology Institute, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 8 (filed Jan. 27, 2015) (OTI Jan. 27, 2015 Ex Parte Letter) (arguing that “today there is no networked service more open, interconnected and universally offered than broadband Internet access service, whether fixed or mobile”). Second CMRS Report and Order, 9 FCC Rcd at 1436, para. 59. Id. at 1437, para. 60. See id. at 1413-17, paras. 1-10. Section 332(d)(2) of the Communications Act states that “the term ‘interconnected service’ means service that is interconnected with the public switched network (as such terms are defined by regulation by the Commission) . . . .” 47 U.S.C. §332(d)(2). Public IP addresses are globally routable unicast IP addresses. See Internet Engineering Task Force, The Internet Numbers Registry System, RFC 7020 (Aug. 2013), https://tools.ietf.org/html/rfc7020 (discussing non-reserved globally unique unicast IP addresses assigned through the Internet Numbers Registry System). This definitional change to our regulations in no way asserts Commission jurisdiction over the assignment or management of IP addressing by the Internet Numbers Registry System. As discussed further below, we also find that mobile broadband is an interconnected service because it gives its users the capability to send and receive communications from all other users of the Internet. CTIA Reply at 44-45; see also CTIA Dec. 22, 2014 Ex Parte Letter, Attach at 5-9; Letter from Scott K. Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 14 (filed Feb. 10, 2015) (CTIA Feb. 10, 2015 Ex Parte Letter). Letter from Gary L. Phillips, General Attorney & Assoc. Gen. Counsel, AT&T Services, Inc. to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2 (filed Jan. 8, 2015) (AT&T Jan. 8, 2015 Ex Parte Letter). CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 7. Verizon Title II White Paper at 15; id. at 13-15; see also Letter from William H Johnson, Vice Pres. & Assoc. Gen. Counsel, Verizon to Marlene H Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2-3 (filed Dec. 24, 2014) (Verizon Dec. 24, 2014 Ex Parte Letter). See Crawford v. FCC, 417 F.3d 1289, 1295 (D.C. Cir. 2005) (the rule ultimately adopted may be a “logical outgrowth” of the original proposal). 2014 Open Internet NPRM, 29 FCC Rcd at 5563, para. 4. Id. at 5614, para. 150. Id. at 5613, para. 149 n.302. See also 79 Fed. Reg. 37448-01, 37468 (2014); Wireline Competition Bureau Seeks to Refresh the Record in the 2010 Proceeding on Title II and Other Potential Legal Frameworks for Broadband Internet Access Service, GN Docket No. 10-127, Public Notice, 29 FCC Rcd 5856 (Wireline Comp. Bur. 2014). Broadband Classification NOI, 25 FCC Rcd at 7867, para. 2. Id. at 7908, para. 102. Id. at 7909, para. 104. 2014 Open Internet NPRM, 29 FCC Rcd at 5613-14, para. 149. Id. at 5616, para. 155. Id. at 5583-84, 5598, paras. 62, 105. Long Island Care at Home, Ltc. v. Coke, 551 U.S. 158, 175 (2007). Agape Church, Inc. v. FCC, 738 F.3d 397, 411 (D.C. Cir. 2013). National Ass’n of Mfrs. v. EPA, 750 F.3d 921, 926 (D.C. Cir. 2014); see also In re Polar Bear Endangered Species Act Listing, 720 F.3d 354, 363 (D.C. Cir. 2013) (“Indeed, the [appellant] seems to have understood this [effect of the proposal]: it submitted comments” on the issue); CTIA Reply at 44 (arguing that the Commission “cannot upend the statutory scheme simply by ‘updating’ the definition of CMRS to determine that the use of IP addresses renders an offering ‘interconnected,’ as Vonage contends”); Verizon Title II White Paper at 15 (arguing that “no matter how the Commission may redefine the ‘public switched network,’ any new definition still would need to be anchored to public switched phone networks, which is what Section 332 was designed to address”). Vonage Comments at 41-44; see also Letter from Joshua M. Bobeck, Counsel to Vonage Holdings Group to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 2 (filed Jan. 15, 2015) (noting that the Commission “plainly put interested parties on notice that it was considering rules based in Title II and that it would explore alternative construction of the statutory terms applicable to mobile broadband under section 332”); Letter from Michael Calabrese, Dir., Wireless Future Project, New America, Open Technology Institute to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 5 (filed Nov. 10, 2014) (arguing that “since the statute does not limit the definition of ‘public switched network’ to one that uses the NANP, an update could add to the rather self-evident notion that in 2014, (unlike 1993) the Internet and its IP addressing system is now the predominant network”). See, e.g., CTIA Reply at 44-45; CTIA Dec. 22, 2014 Ex Parte Letter; CTIA Feb. 10, 2015 Ex Parte Letter; Verizon Title II White Paper at 13-15; AT&T Feb. 2, 2015 Ex Parte Letter; Letter from Jonathan Spalter, Chairman, Allison Remsen, Exec. Director, Rachael Bender, Policy Director, Mobile Future to Marlene H. Dortch, Secretary, FCC, GN Dockets 14-28, 10-127(filed Dec. 5, 2015); Letter from Matt Wood, Policy Director, Free Press to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 (filed Dec. 17, 2014); Letter from Michael Calabrese, Dir, Wireless Future Project, Open Technology Institute, New America Foundation, Erik Stallman, Dir., Open Internet Project, Center for Democracy and Technology, and Harold Feld, Sen. Vice Pres. Public Knowledge, to Marlene H. Dortch, Secretary, FCC GN Docket Nos. 14-28, 10-127 (filed Dec. 11, 2014) (New America, CDT, PK, Dec. 11, 2014 Ex Parte Letter). CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 7-8. CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 8-9; CTIA Feb. 10, 2015 Ex Parte Letter at 15 (arguing that Congress demonstrated that “it viewed the terms as interchangeable by describing the legislation as requiring interconnection with the ‘public switched telephone network’ in the Conference Report”); see also AT&T Feb. 2, 2015 Ex Parte Letter at 1. AT&T Feb. 2, 2015 Ex Parte Letter at 2; see also CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 8. CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 8; Verizon Dec. 24, 2014 Ex Parte Letter at 2. See 47 U.S.C. §230(b)(2); AT&T Feb. 2, 2015 Ex Parte Letter at 2-3. See, e.g., Letter from Harold Feld, Senior Vice Pres., Public Knowledge to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 1 (filed Jan. 15, 2015) (arguing that “[i]f the term ‘public switched network’ was so well understood, why did Congress explicitly require that the Commission define it”) (emphasis in original); OTI Jan. 27, 2015 Ex Parte Letter at 5 (arguing that “Congress could have referred specifically to the ‘telephone’ network (or at least used the word ‘telephone’) if it intended to strictly limit the future services that the Commission might designate as CMRS-but instead it cast the provision more broadly”). See CTIA Feb. 10, 2015 Ex Parte Letter at 15. Thus, the question here is not one of interpreting certain terms used by Congress as one of the dissents states (Pai Dissent at 45-51), but rather of the exercise of the discretion explicitly granted by Congress to the Commission to define these terms. Second CMRS Report and Order, 9 FCC Rcd at 1436, para. 59. Contrary to one of the dissenting statements, (Pai Dissent at 46-47 & n.337), the Commission made clear it was not limiting the term “public switched network” to the traditional network. First, as noted above, it rejected that view in favor of the position of other commenters that “the network should not be defined in a static way,” an interpretation it found more consistent with the determination by Congress not to employ the term “public switched telephone network.” Second, it stated that any switched common carrier service that is interconnected with the traditional local or interexchange switched network would be defined “as part of” the public switched network “for purposes of our definition,” id. at 1436-37. Even as early as 1994, the comments on which the Commission relied for its definition, id. at 1437, para. 60, made this very point. Comments of Nextel Communications, Inc. at 11 (“In the not-too-distant future, telephony will consist of ‘networks of networks’ linking together landline, fiber, wireless, microwave and satellite systems,” so that the definition should include “any services – whether landline or wireless – offered on a co-carrier basis to enhance or extend the reach and functionalities of traditional local exchange or interexchange facilities”); Comments of Pacific Bell and Nevada Bell at 5 (current definition is “a vestige of telecommunications history” and “needs to be revised,” given “revolution” in the industry in which “new providers and new services appear almost weekly” that are interconnected with the traditional PSN and “are substitutes for components of the PSN”). Comments of other wireless providers, with whom the Commission agreed about avoiding “a static way” of defining the network, id. at 1436, para. 59, made the same point. See, e.g., Comments of Bell Atlantic Cos. at 6, 9 & n.9 (citing Commission’s “poor experience” in trying to apply definitions, arguing that “[b]road definitions are essential,” emphasizing that the Commission “cannot anticipate all such [new PCS] technologies . . . interfacing with the network,” and urging it to “discard the use of the anachronistic term ‘public switched telephone network’ (‘PSTN’)”); Comments of NYNEX Corp. at 8-9 (definition should not include “only the traditional LEC-provided public switched telephone network (‘PSTN’),” so as to “reflect today’s competitive environment for wireless services” and the “quickly and constantly evolving concept” of the network, in which cable, cellular, and PCS systems and other services could, “for millions of people, make access to the ‘old PSTN’ unnecessary”). See AT&T Feb. 2, 2015 Ex Parte Letter at 2; see also CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 8. We are not persuaded by AT&T’s arguments that rely, not on the foregoing language or purpose of the 1993 statute at issue, but on subsequent statutes enacted for different purposes in 1996 and 2012.  See, e.g., Gutierrez v. Ada, 528 U.S. 250, 257-58 (2000). Quite apart from canons of statutory construction, this argument disregards the signal difference in Section 332(d), which delegates the question of the scope of its terms to the Commission in light of its experience and market developments over time.  We note, however, that AT&T’s reliance on the “policy” of the 1996 Act reflected in Section 230 is similar to one that Verizon made but that was not found by the Verizon court to be a bar to its conclusion that “section 706 grants the Commission authority to promote broadband deployment by regulating how broadband providers treat edge providers.”  Verizon, 740 F.3d at 649; see Verizon Br. At 23, 27-28, Verizon v. FCC, No. 11-1355 (D.C. Cir. filed Jan. 18, 2013).     Wireless Broadband Classification Order, 22 FCC Rcd at 5918, para. 45, n.119. Id. Id. at 5917-18, para. 45. The Commission defined “commercial mobile data service” which is subject to the data roaming rule as “any mobile data service that is not interconnected with the public switched network.” See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, WT Docket No. 05-265, Second Report and Order, 26 FCC Rcd 5411, 5412, para. 1 n.1 (2011) (Data Roaming Order). We note that if a mobile service is not interconnected to the public switched network (as updated herein) and otherwise meets the definition of “commercial mobile data service” in section 20.3 of the Commission’s rules, it will continue to be subject to the data roaming rules. See 47 C.F.R. §§ 20.3, 20.12(e); see also infra Section V.C.2.i (discussing applicability of roaming requirements to mobile broadband Internet access services). Opponents of reclassifying mobile broadband Internet access services have argued that the D.C. Circuit’s decisions on data roaming and on the 2010 Open Internet Order bar the Commission from reclassifying mobile broadband Internet access as commercial mobile service. See CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 4-5 (citing the court’s finding that mobile broadband services were “statutorily immune, perhaps twice over,” from common carrier treatment (citing Cellco P’ship v FCC, 700 F.3d 534, 538 (D.C. Cir. 2012)). First, we note that the issue of revising the Commission’s definitions was neither raised nor discussed in the data roaming or open Internet decisions. Moreover, contrary to these arguments, we find that the Court’s acceptance of the Commission’s previous decisions based on its existing definitions does not preclude the Commission from revisiting and revising its definitions, as expressly permitted by the language of Section 332. See Brand X, 545 U.S. at 981 (finding that “[a]gency inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework”). See Data Roaming Order, 26 FCC Rcd at 5414, para. 6 n.12. Wireless Broadband Classification Order, 22 FCC Rcd at 5918, para. 45 n.119. Id. at 5916, para. 41. Second CMRS Report and Order, 9 FCC Rcd at 1434, para. 54. 47 U.S.C. § 332(d)(1), (d)(3). Wireless Broadband Classification Order, 22 FCC Rcd at 5921-22, para. 59. See comScore, comScore Reports September U.S. Smartphone Subscriber Market Share, Nov. 6, 2014, http://www.comscore.com/Insights/Market-Rankings/comScore-Reports-September-2014-US-Smartphone-Subscriber-Market-Share (last visited Feb. 4, 2015). Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 13-135, Seventeenth Report, 29 FCC Rcd 15311, 15345-46, para. 66 (Wireless Tel. Bur. 2014) (Seventeenth Annual Wireless Competition Report). The total U.S. population of all ages, as of the end of 2013 was estimated by the Census Bureau to be 317.2 million. See United States Census Bureau, U.S. and World Population Clock, http://www.census.gov/popclock/ (last visited Feb. 5, 2015). The total number of mobile connections as of the end of 2013 was 335.7 million. Seventeenth Annual Wireless Competition Report, 29 FCC Rcd at 15319-20, Chart II.B.1. Cisco, Cisco Visual Networking Index: Global Mobile Data Traffic Forecast Update 2014-2019, at 9-10, http://www.cisco.com/c/en/us/solutions/collateral/service-provider/visual-networking-index-vni/white_paper_c11-520862.html#Trend_1_Continuing_Shift_to_Smarter (last visited Feb. 4, 2015). Mobile broadband is an increasingly important pathway to the Internet, and many households subscribe to both fixed and mobile services as distinct product offerings with contrasting advantages in speed, usage limits, and mobility. See 2015 Broadband Progress Report at para. 120; see also Public Knowledge Comments at 18-19 (arguing that mobile broadband is not a substitute for fixed broadband services, so its increased adoption does not “change the essential points about terminating monopolies”). See CTIA Feb. 10, 2015 Ex Parte Letter at 16 (arguing that “Congress’s intent was not to maximize the application of common carrier requirements” but rather to “ensure that new offerings that were similar to preexisting cellular offerings be treated alike ”). 47 U.S.C. § 332(d)(1). See Cellco P’ship v. FCC, 700 F.3d 534, 541-42 (D.C. Cir. 2012) (citing NBC v. United States, 319 U.S. 190 (1943). As the Supreme Court recognized in NBC with respect to the Commission’s Title III authority, Congress did not “frustrate the purposes for which the Communications Act of 1934 was brought into being by attempting an itemized catalogue of the specific manifestations of the general problems for the solution of which” it established the Commission, for the purpose of “regulating a field of enterprise the dominant characteristic of which was the rapid pace of its unfolding.” 319 U.S. at 219. Contrary to the suggestion in the dissent, Pai Dissent at 44, our decision to reclassify mobile broadband Internet access service as CMRS also relies on our section 332(d) authority as described herein, and thus is not based exclusively on our analysis here of VoIP services. See infra para. REF _Ref413430706 \r \h 401. See New America, CDT, PK, Dec. 11, 2014 Ex Parte Letter at 5; Letter from Michael Calabrese, Dir. Wireless Future Project, New America Open Technology Institute, to Marlene H. Dortch, Secretary, FCC GN Docket Nos. 10-127, 14-28, at 8 (filed Jan. 27, 2015); Letter from Sarah Morris, Michael Calabrese, Joshua Stager, Open Technology Institute, New America Foundation to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 2-3 (filed Feb. 2, 2015). See CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 11-13; Verizon Dec. 24, 2014 Ex Parte Letter at 4; Wireless Broadband Classification Order, 22 FCC Rcd at 5917-18, para. 45. See New America, CDT, PK, Dec. 11, 2014 Ex Parte Letter at 4-6. See Facilitating the Deployment of Text-to-911 and Other Next Generation 911 Applications, Report and Order, 28 FCC Rcd 7556, 7561-62, para. 15 (2013) (“. . . the rapid proliferation of smartphones and other advanced mobile devices is providing consumers with numerous new options for IP-based Text applications. In fact, Informa estimates that ‘By the end of 2013 . . . 41 billion OTT messages will be sent every day . . . .”). In support of arguments regarding interconnection, one of the dissents (Pai Dissent at 51 n.362), cites the inapposite Time Warner Cable Request for Declaratory Ruling That Competitive Local Exchange Carriers May Obtain Interconnection under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers, Memorandum Opinion and Order, 22 FCC Rcd 3513, 3520-21, paras. 15-16 (Wireline Comp. Bur. 2007). Our interpretation here of the Commission’s own rule as to what constitutes the “capability” to communicate with NANP endpoints is a completely different question from whether wholesale carriers are entitled to interconnection rights under Section 251 of the Act regardless of the regulatory status of VoIP services provided to end users, which was the issue addressed by the staff in the Time Warner Cable request for a Declaratory Ruling. 47 C.F.R. § 20.3. In adopting the definition of interconnected service in the Second CMRS Report and Order, the Commission recognized that interconnected services could be limited and noted that “[i]n defining interconnected service in terms of transmissions to or from ‘anywhere’ on the PSN, we note that it is necessary to qualify the scope of the term ‘anywhere’; if a service that provides general access to points on the PSN also restricts calling in certain limited ways (e.g., calls attempted to be made by the subscriber to ‘900’ telephone numbers are blocked), then it is our intention still to include such a service within the definition of ‘interconnected service’ for purposes of our Part 20 rules.” Second CMRS Report and Order, 9 FCC Rcd at 1434-35, para. 55 n.104. See Second CMRS Report and Order, 9 FCC Rcd at 1434, para. 54; Wireless Broadband Classification Order, 22 FCC Rcd at 5917, para. 44. 47 U.S.C. § 332(d)(1). See, e.g., CTIA Feb. 10, 2015 Ex Parte Letter, at 16 (“Congress intended to ensure that new offerings that were similar to preexisting cellular offerings be treated alike”). To make this point clear, and in the exercise of our authority to “specif[y] by regulation” what services qualify as CMRS services that make interconnected service available to the public or to such classes of eligible users as to be effectively available to a substantial portion of the public, we have made a conforming change to the definition of Interconnected Service in section 20.3 of the Commission’s rules. 47 U.S.C. §153(51). 47 U.S.C. §332(c)(2). We disagree with CTIA’s argument that section 332 mandates classification of mobile broadband Internet access service as private mobile service. See CTIA Feb. 10, 2015 Ex Parte Letter at 16. Section 332 sets forth the definition of commercial mobile service and requires that services meeting the definition of commercial mobile service be treated as common carriers. For the reasons described above, today, we find that mobile broadband Internet access service meets the definition of commercial mobile service. See 47.U.S.C. §332(d)(3). Id. CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 13-15; Verizon Dec. 24, 2014 Ex Parte Letter at 5-6. CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 15. Verizon Dec. 24, 2014 Ex Parte Letter at 6. AT&T Jan. 8, 2015 Ex Parte Letter at 4-5; CTIA Feb. 10, 2015 Ex Parte Letter at 16. CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 11-13; AT&T Jan. 8, 2015 Ex Parte Letter at 4; Verizon Dec. 24, 2014 Ex Parte Letter at 4-5. 2014 Open Internet NPRM, 29 FCC Rcd at 5614, para. 150. 47 C.F.R. § 20.3. See, e.g., Public Knowledge Nov. 7, 2014 Ex Parte Letter at 3-5; CTIA Reply Comments at 46; CTIA Dec. 22, 2014 Ex Parte Letter, Attach. at 15-18; CTIA Feb. 10, 2015 Ex Parte Letter at 16. See CTIA Feb. 10, 2015 Ex Parte Letter at 18 (also noting that providers typically treat voice minutes differently from data usage and allow users to adjust one without changing the other). Second CMRS Report and Order, 9 FCC Rcd at 1447-48, paras. 79-80. Id. at 1447-48, para. 80. 47 C.F.R. § 20.9(a)(14)(ii)(B). See supra Sections IV.B., IV.C.2. See infra paras. REF _Ref410907097 \r \h \* MERGEFORMAT 415- REF _Ref410907099 \r \h \* MERGEFORMAT 416. See, e.g., Free Press Nov. 21, 2014 Ex Parte Letter at 5. See, e.g., Letter from Angie Kronenberg, COMPTEL, to Marlene H. Dortch, Secretary, FCC, GN Docket 14-28, at 2 (filed Jan. 13, 2015) (COMPTEL Jan. 13, 2015 Ex Parte Letter). See, e.g., Sprint Jan. 16, 2015 Ex Parte Letter at 1 (“Sprint does not believe that a light touch application of Title II, including appropriate forbearance, would harm the continued investment in, and deployment of, mobile broadband services.”); Letter from Andrew W. Guhr, Counsel for AOL, Inc. to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Dec. 5, 2014); COMPTEL Comments at 21-24; Vonage Reply at 32. See, e.g., Charter Comments at 13, 15-16; Comcast Comments at 46-50; Verizon Comments at 57; NCTA Dec. 23, 2014 Ex Parte Letter at 3-5; ACA Comments at 60-66; Alcatel-Lucent Comments at 2; AT&T Comments at 51-53; CenturyLink Comments at 5-6; Cisco Comments at 27; CTIA Comments at 46-48; Cox Comments at 34-36; Frontier Comments at 2-4; Qualcomm Comments at 4-7; Letter from Laurence Brett Glass, d/b/a LARIAT to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Jan. 9, 2015). See, e.g., Vonage Comments at 35- 36; AARP Comments at 38-42. See, e.g., Common Cause Comments at 13-16; WGAW Comments at 28-31; Public Knowledge Reply at 16-22; OTI Reply at 3-11; EFF Comments at 13-15; NASUCA Comments at 4-6; CDT Comments at 15-16; Cogent Comments at 11. See, e.g., Cisco Comments at 4-5 (stating that “[g]lobal IP traffic has increased more than fivefold in the past 5 years and will increase threefold over the next 5 years” and that it “expects traffic to grow from 16,607 petabytes of data in 2013 to 40,545 petabytes of data in 2018”); see also AARP Comments at 47-48 & fig. 2 (explaining that “[b]roadband providers have faced nearly exponential year-over-year growth in traffic flows for the entire history of the broadband market,” and that trend is expected to continue). See, e.g., AARP Comments at 48 (arguing that “[b]ecause of the ongoing growth in traffic, broadband providers have had to continuously upgrade their network’s capacity,” and “broadband providers benefit from the growth in traffic volume associated with video services as it drives end-user demand for higher-priced, higher-speed offerings”); Access Comments at 13 (“The demand for faster and better access to the internet will grow, generating more value for and a stronger incentive to invest in enhanced network capacity.”). See Free Press Comments at 94-95 n.200 (describing declining costs for cable, LEC, and wireless broadband service providers due to technological and market developments); ACI Reply, Attach., Innovation and National Broadband Policies at 16-32 (discussing technological advancements in cable, wireline, and wireless networks and describing their benefits, including improved capacity and “declining costs and rates”). See Verizon, 740 F.3d at 644-45; COMPTEL Jan. 13, 2015 Ex Parte Letter at 2. Letter from Marvin Ammori to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Dec. 19, 2014) (Ammori Dec. 19, 2014 Ex Parte Letter). Id. at 3; see also 47 U.S.C. § 224. Ammori Dec. 19, 2014 Ex Parte Letter at 3-4; see also Letter from Austin C. Schlick, Director, Communications Law, Google, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (explaining that reclassifying broadband Internet access service as a telecommunications service would extend the statutory right of access to utility infrastructure to all providers of these services, “regardless of what services they otherwise provide”). Conversely, ACA asserts that reclassification would result in increased pole attachment rates for many of its members, which would have the effect of lowering investment incentives both for continued investment in existing facilities and for new deployments. See ACA Comments at 62, 64, 66. We do not agree with ACA’s prediction concerning investment incentives. As we explain further below, we are committed to avoiding an outcome in which entities misinterpret today’s decision as an excuse to increase pole attachment rates of cable operators providing broadband Internet access service. It is not the Commission’s intent to see any increase in the rates for pole attachments paid by cable operators that also provide broadband Internet access service, and we caution utilities against relying on this decision to that end. See infra paras. REF _Ref412448465 \r \h 482- REF _Ref412448468 \r \h 484. This Order does not itself require any party to increase the pole attachment rates it charges attachers providing broadband Internet access service, and we would consider such outcomes unacceptable as a policy matter. We will be monitoring marketplace developments following this Order and will promptly take further action in that regard if warranted. In any case, such arguments do not persuade us not to reclassify broadband Internet access service, since in reclassifying that service we simply acknowledge the reality of how it is being offered today. See Ammori Dec. 19, 2014 Ex Parte Letter at 4 (citing Jon Brodkin, “Report: Verizon FiOS claimed public utility status to get government perks,” Ars Technica, May 28, 2014, http://arstechnica.com/tech-policy/2014/05/report-verizon-fios-gets-perks-from-government-while-avoiding-regulations/; Bruce Kushnick, Public Utility Law Project of New York, Inc., It’s All Interconnected: Oversight and Action is Required to Protect Verizon New York Telephone Customers and Expand Broadband Services (May 13, 2014), http://newnetworks.com/wp-content/uploads/PublicNN3.pdf. See Sprint Jan. 16, 2015 Ex Parte Letter at 1 (“Sprint does not believe that a light touch application of Title II, including appropriate forbearance, would harm the continued investment in, and deployment of, mobile broadband services.”). See, e.g., Free Press Comments at 102 (arguing that “the average annual investment by telecom carriers was 55 percent higher under the period of Title II’s application than it has been in the years since the FCC removed broadband from Title II”). The 1996 Telecom Act imposed a set of new obligations on incumbent local exchange carriers, including, most importantly, the duty to provide competing carriers access to unbundled network elements at cost-based rates.  See 47 U.S.C. §§ 251(c)(3), 252(d)(1).  The Commission adopted rules implementing the unbundling requirements in 1996. Implementation of the Local Competition Provisions in the Telecommunications Act of 1996; Interconnection between Local Exchange Carriers and Commercial Mobile Radio Service Providers, CC Docket Nos. 96-98, 95-185, First Report and Order, 11 FCC Rcd 15499 (1996). But see Access Charge Reform, CC Docket No. 96-262, Fifth Report and Order, 14 FCC Rcd 14221 (1999) (Pricing Flexibility Order), aff'd, WorldCom v. FCC, 238 F.3d 449 (D.C. Cir. 2001) (granting carriers pricing flexibility).  See, e.g., USTelecom, Historical Broadband Provider Capex, http://www.ustelecom.org/broadband-industry-stats/investment/historical-broadband-provider-capex (last visited Jan. 21, 2015) (showing a drop in capex expenditures by broadband providers from a high of $118 billion in 2000 to a low of $57 billion in 2003). See Petition of AT&T Inc. for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Its Broadband Services et al., WC Docket No. 06-125, Memorandum Opinion and Order, 22 FCC Rcd 18705 (2007), aff’d sub nom. Ad Hoc v. FCC, 572 F.3d 903 (AT&T Forbearance Order) (granting AT&T forbearance from rules applicable to enterprise broadband services); Verizon Telephone Companies’ Petition for Forbearance from Title II and Computer Inquiry Rules with Respect to their Broadband Services Is Granted by Operation of Law, WC Docket No. 04-440, News Release (rel. Mar. 20, 2006) (informing the public of deemed grant of Verizon petition for forbearance with respect to enterprise broadband services); Wireline Broadband Classification Order, 20 FCC Rcd 14853 (eliminating Computer Inquiry requirements and other rules governing wireline broadband Internet access service); Unbundled Access to Network Elements, Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, WC Docket No. 04-13, CC Docket No. 01-338, Order on Remand, 20 FCC Rcd 2533 (2005) (eliminating unbundled switching and significantly scaling back unbundling of other network elements); Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers. Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, and 98-147, Report and Order and Notice of Proposed Rulemaking, 18 FCC Rcd 16978 (2003) (subsequent history omitted) (eliminating line-sharing). See US Telecom Research Brief, Latest Data Show Broadband Investment Surged in 2013 at 2, Chart 2 (wireline broadband capital expenditures peaked at $79 billion in 2000), http://www.ustelecom.org/sites/default/files/documents/090814%20Latest%20Data%20Show%20Broadband%20Investment%20Surged%20in%202013.pdf. See Vonage Comments at 13-15 (noting “substantial broadband network investments” by AT&T and Verizon following the release of the Internet Policy Statement). See, e.g., AT&T Comments at 19 (“[A]nnual investment in U.S. wireless networks grew more than 40 percent between 2009 and 2012, from $21 billion to $30 billion.” (citing “Four Years of Broadband Growth,” Office of Science and Technology Policy & The National Economic Council (June 2013), http://www.whitehouse.gov/sites/default/files/broadband_report_final.pdf) (Four Years of Broadband Growth); Free State Comments at 7 n.17 (“The telecommunications and cable sector was responsible for $50.5 billion of investment, comprising more than one-third of total capital investments in the U.S. economy last year.”); Verizon Comments, Lerner Declaration at 20 (citing Four Years of Broadband Growth at 4-5: “[S]ince President Obama took office in early 2009, nearly $250 billion in private capital has been invested in U.S. wired and wireless broadband networks. In just the last two years, more high-speed fiber cables have been laid in the United States than in any similar period since 2000.”); Free Press Comments at 102, 100 fig. 1 (“The data also show that the implementation of the FCC’s 2010 Open Internet Order was followed by an increase in telco capital investment. From the end of 2011 to the end of 2013 capex by the companies tracked in Figure 1 increased 7 percent (if the cable MSOs are included, the increase is 5 percent). This is noteworthy because the same warnings about the harm Title II would cause to investment were made about the Open Internet rules – predictions that were flat out wrong.”). See, e.g., Free Press Nov. 21, 2014 Ex Parte Letter at 7 n.14 (quoting J.P. Morgan, North American Equity Research, Nov. 11, 2014, Net Neutrality: Prepared for Title II but We Take Less Negative View, “[w]e wouldn’t change any of the fundamental assumptions on cable companies under our coverage under Title II, and shares are likely to rebound over time.”), id. at 7 (quoting Bernstein Research Note, Nov. 17, 2014: “We note that during the three years in which the 2010 rules were in place while Verizon pursued its (unnecessary) litigation there did not appear to be any effect on investment decisions from the resulting litigation uncertainty. Further, the evidence carriers produce to support their argument that Title II classification will reduce investment tends to consist of commentary from analysts and network-equipment suppliers, as well as the results of their own discretionary choices. . . .”). Free Press explains that following the announcement of the 2010 Broadband Classification NOI, “[m]ost of the ISP stocks barely moved from this announcement. Verizon and AT&T each fell 2 percent. Cable stocks did drop more (on substantially higher volume), but this was primarily due to . . . over-valuation of these stocks following better-than-expected Q1 earnings reports. This was compounded by the broader market concerns stemming from the EU debt crisis.” Free Press Comments at 114. In the months following the announcement the “ILECs, Cable and Wireless companies were outperforming the broader market, and vastly outperforming the edge companies’ stocks. Comcast was the only ISP in negative territory, yet still outperformed the broader market. And its issues were more related to the merger than the [NOI].” Id. at 117-118. See New York Stock Exchange, https://www.nyse.com/index (last visited Jan. 23, 2015) (detailing stock price information from October 1, 2014 to January 23, 2015 for Verizon (NYSE:VZ), AT&T (NYSE:T), Time Warner Cable (NYSE:TWC), CenturyLink (NYSE:CTL), Sprint (NYSE:S), T-Mobile (NSYE:TMUS), and Cablevision (NYSE:CVC); NASDAQ, http://www.nasdaq.com/ (last visited Jan. 23, 2015) (detailing stock price information from October 1, 2014 to January 23, 2015 for Comcast (NASDAQ:CMCSA) and Charter (NASDAQ:CHTR). At any moment in time, the price of a stock reflects the market’s valuation of the cash-flow-generating capability of the firm. Because a firm’s cash flow is based on a multitude of factors, it is improper to infer that observed stock price changes reflect the market’s belief that infrastructure investment will decline. See, e.g., Letter from COMPTEL, Engine, CCIA, and Internet Freedom Business Alliance to Chairman Wheeler, GN Docket No. 14-28, at 2 n.4 (filed Dec. 30, 2014) (COMPTEL Dec. 30, 2014 Ex Parte Letter); Brian Fung, Verizon: Actually, strong net neutrality rules won’t affect our network investment, Washington Post, Dec. 10, 2014, available at http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/10/verizon-actuallystrong-net-neutrality-rules-wont-affect-our-network-investment/?wpisrc=nlswbd& wpmm=1 ; Brian Fung, Comcast, Charter and Time Warner Cable all say Obama’s net neutrality plan shouldn’t worry investors, Washington Post, Dec. 16, 2014, available at http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/16/comcast-charter-andtime-warner-cable-all-tell-investors-strict-net-neutrality-wouldnt-change-much /. See also COMPTEL Dec. 11, 2014 Ex Parte Letter (urging the Commission “to consider [a Verizon disclosure regarding the impact of regulation on its investment plans] and discount the claims [in the record] that network investment will decline if the Commission reclassifies broadband Internet access services”); see also Free Press Comments at 92-93, 97 nn.198 & 205; Alan Breznick, CenturyLink Eyes More Gig Launches, LightReading, Feb. 12, 2015, at http://www.lightreading.com/gigabit/gigabit-cities/centurylink-eyes-more-gig-launches/d/d-id/713723 (last visited Feb. 17, 2015). Sprint Jan. 16, 2015 Ex Parte Letter at 1-2; see also Thomas Gryta, T-Mobile Joins Sprint In Downplaying FCC’s Broadband Reclassification, Wall Street Journal (Feb. 19, 2015), http://blogs.wsj.com/corporate-intelligence/2015/02/19/t-mobile-joins-sprint-in-downplaying-fccs-broadband-reclassification/ (T-Mobile US stating that “the regulatory reclassification of the Internet as a utility would not be an impediment to its business”). Id. at 1. Brian Fung, Verizon: Actually, strong net neutrality rules won’t affect our network investment, Washington Post, Dec. 10, 2014, available at http://www.washingtonpost.com/blogs/the-switch/wp/2014/12/10/verizon-actuallystrong-net-neutrality-rules-wont-affect-our-network-investment/?wpisrc=nlswbd& wpmm=1; see also Free Press Nov. 14, 2014 Ex Parte Letter at 6 (stating that “when asked if the President’s push for Title II reclassification would affect your investment in broadband,” Mr. Shammo answered “No”); Thomson Reuters Streetevents, Edited Transcript, VZ – Verizon Communications Inc at UBS Global Media and Communications Conference, at 13 (Dec. 9, 2014), available at http://publicpolicy.verizon.com/assets/images/content/VZ_at_UBS_Conf.pdf. Over one month later, Mr. Shammo stated, in an investor call on Jan. 22, 2015, that his earlier comments had been “misquoted” and asserted that reclassifying broadband as a Title II service will affect “long-term investment in our networks.” See Brian Fung, Did Congress, the media and the FCC all misunderstand what Verizon said on net neutrality? Verizon thinks so, Washington Post, Jan. 23, 2014, available at http://www.washingtonpost.com/blogs/the-switch/wp/2015/01/23/did-congress-the-media-and-the-fcc-all-misunderstand-what-verizon-said-on-net-neutrality-verizon-thinks-so/. See infra Section V. But see NASUCA Comments at 12 (noting that “litigation is inevitable no matter which direction the Commission chooses” and arguing that “[t]he Commission is far more likely to avoid reversal by the courts if it adopts an open Internet regime based on reclassifying broadband as Title II”); CCIA Nov. 19, 2014 Ex Parte Letter (“The group also discussed the inevitable litigation that will ensue no matter what open Internet rules the Commission adopts.”). See Letter from Christopher Yoo to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed June 10, 2014); Comcast Dec. 24, 2014 Ex Parte Letter at 5-7 (citing Martin H. Thelle & Dr. Bruno Basalisco, Copenhagen Economics, Europe Can Catch Up with the US: A Contrast of Two Contrary Broadband Models (June 2013), http://www.copenhageneconomics.com/Website/News.aspx?PID=3058&M=NewsV2&Action=1&NewsId=708; see also Letter from Maggie McCready, Vice President, Federal Regulatory Affairs, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Jan. 26, 2015). See, e.g., Ericsson Comments at 12 (“[T]he potential for reversals of forbearance decisions based on shifts in political winds and accompanying Commission leadership changes would deter investment in the short and long term.”); AT&T Comments at 67-68. See, e.g., Verizon Comments at 68; AT&T Comments at 67-68 (arguing that broadband service providers “would be kept in a constant state of regulatory uncertainty” because forbearance decisions “are not irreversible”); Ericsson Comments at 12 (“[T]he potential for reversals of forbearance decisions based on shifts in political winds and accompanying Commission leadership changes would deter investment in the short and long term.”); Alcatel-Lucent Comments at 13 (“It could take years for the Commission to sort through which Title II requirements should apply to broadband, and the inevitable legal appeals would only prolong a state of regulatory instability.”); ARRIS Comments at 11-12; CTIA Oct. 17, 2014 Ex Parte Letter at 5. Other commenters also wrongly suggest that we plan to apply “old world” common carrier rules to Internet access service, conjuring the specter of pervasive and intrusive cost-of-service rate regulation. See, e.g., Consumer Electronics Association Comments at 13; Yoo Dec. 22, 2014 Ex Parte Letter at 6; GSM Comments at 10-11. See, e.g., Ericsson Comments at 12; Alcatel-Lucent Comments at 2; AT&T Comments at 4-5; Verizon Comments at 55; NCTA Dec. 23, 2014 Ex Parte Letter at 7; CBIT Reply at 27; Cisco Comments at 27; Letter from John Mayo, Exec. Director, Georgetown Center for Business and Public Policy to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Jan. 16, 2015), Attach. Anna-Maria Kovacs, Regulatory Uncertainty: The FCC’s Open Internet Docket, at 6-7 (Jan. 2015). See supra Section IV.C.2. See supra Section IV.C.1. See CALinnovates Reply, Attach. NERA Economic Consulting, Economic Repercussions of Applying Title II to Internet Services at 2 (NERA White Paper). NERA White Paper at 22. See infra Section V. See Digital Policy Institute Reply, Attach. at 4 (George S. Ford and Lawrence J. Spiwak, Phoenix Center Policy Bulletin No. 36, Tariffing Internet Termination: Pricing Implications of Classifying Broadband as a Title II Telecommunications Service (Sept. 2014) (Phoenix Center Policy Bulletin No. 36)) (emphasis omitted). See Letter from Patrick S. Brogan, USTelecom to Marlene Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Nov. 19, 2014) (attaching Hassett, Kevin A and Shapiro, Robert J., The Impact of Title II Regulation of Internet Providers on Their Capital Investment (USTelecom Study)) (USTelecom Nov. 19, 2014 Ex Parte Letter). Free Press Nov. 21, 2014 Ex Parte Letter at 1. See USTelecom Study at 13, Tbl. 1. Free Press Nov. 21, 2014 Ex Parte Letter at 2. Id. at 2-3. Free Press asserts that Verizon “long ago stopped investing in residential fiber,” even while its retail broadband service offerings have been classified as an information service, and AT&T “never bothered to deploy retail fiber-to-the-home services.” Free Press Nov. 14, 2014 Ex Parte Letter at 4. See, e.g., WGAW Reply at 34-35. Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, § 6002(b), codified at 47 U.S.C. § 332(c). As discussed above, the Act defines CMRS as “any mobile service . . . that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public.” 47 U.S.C. § 332(d)(1). “Interconnected service” is “service that is interconnected with the public switched network.” 47 U.S.C. § 332(d)(2). This statutory framework, set forth in section 332 of the Communications Act, also preempts State or local government regulation of CMRS rates and entry, but permits State or local regulation of other CMRS terms and conditions. 47 U.S.C. § 332(c)(3). Compare 47 U.S.C. § 332(c)(1)(A), 332(c)(1)(D) with 47 U.S.C. § 160(a)–(b). Implementation of Sections 3(n) and 332 of the Communications Act; Regulatory Treatment of Mobile Services, GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411 (1994), corrected, 9 FCC Rcd 2156 (Wireless Forbearance Order), order on reconsideration, 10 FCC Rcd 7824 (1995) (clarifying preemption standard); see also 47 U.S.C. §§ 203, 204, 205, 211, 212, 214. Wireless Forbearance Order, 9 FCC Rcd at 1510-11, para. 272. Id. at 1421, para. 22. CTIA Wireless Industry Indices: Annual Wireless Survey Results: A Comprehensive Report from CTIA Analyzing the U.S. Wireless Industry year-End 2013 Results, 2014 at 25. Id. at 76. Id. at 97. We note that Verizon argues that wireless investment began increasing around 2003 due to growth in mobile broadband, and disputes the idea that this investment was driven by CMRS voice services. See Letter from William H. Johnson, Vice President and Associate General Counsel, Verizon, to Marlene H. Dortch, Secretary, Federal Communications Commission, GN Docket No. 14-28, at 2-4 (filed Feb. 19, 2015); O’Rielly Dissent at 6 & n.17. However, given that mobile broadband was not classified as a Title I information service until 2007, it is not clear the extent to which increases in investment before then can be attributed to a non-CMRS regulatory environment. Furthermore, voice service has continued to account for a significant portion of revenues. See CTIA, Annual Wireless Industry Survey (2014) at 84; see also Bank of America/Merrill Lynch Global Wireless Matrix 4Q14 at 274 (reporting that data revenues represented only 40.7 percent of total service revenues reported in 2014 in the US). Free Press cites data showing substantial investment growth in the late 1990s (a time of increased demand for voice services) and the late 2000s to present (a period of increased smartphone use). See Letter from Derek Turner, Research Director, Free Press, to Marlene H. Dortch, Secretary, Federal Communications Commission, GN Docket No. 14-28, at 2-4 (filed Feb. 23, 2015). During the latter years, as discussed above, Verizon’s LTE network was subject to openness rules imposed by spectrum licensing conditions. Regardless of which assumptions are made, it is clear that there has been substantial network investment by mobile wireless providers during a significant period of time in which these providers’ services have been subject to Title II regulation or openness requirements. Indeed, the data suggest that network investments have been driven more by overall market conditions, including consumer demand, than by the particular regulatory framework in place. See id. at 3. See Verizon Communications Inc., 10K Financial Statements 2008-2014, http://www.verizon.com/about/investors/quarterly-reports/. Id. at 107. Seventeenth Annual Wireless Competition Report, 29 FCC Rcd at 15333, para. 47. Id. at 15334, Chart III.A.1. See FCC, Auction 97 – Advanced Wireless Services (AWS-3), http://wireless.fcc.gov/auctions/default.htm?job=auction_summary&id=97 (last visited Feb. 4, 2015). See AT&T Enterprise Forbearance Order, 22 FCC Rcd 18705; Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Broadband Services, WC Docket No. 06-125, Memorandum Opinion and Order, 23 FCC Rcd 12260 (2008) (Qwest Forbearance Order); Petition of the Embarq Local Operating Companies for Forbearance Under 47 U.S.C. § 160(c) from Application of Computer Inquiry & Certain Title II Common-Carriage Requirements; Petition of the Frontier and Citizens ILECs for Forbearance Under Section 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Their Broadband Services, WC Docket No. 06-147, Memorandum Opinion and Order, 22 FCC Rcd 19478 (2007) (Embarq/Frontier Forbearance Order), aff'd sub nom. Ad Hoc Telecom. Users Committee v. FCC, 572 F.3d 903 (D.C. Cir. 2009). See Marvin Ammori Dec. 19, 2014 Ex Parte Letter at 6 (citing AT&T Comments, WC Docket No. 05-25, RM-10593, at 3 (filed Apr. 16, 2013)); see also Free Press Reply at 29. Free Press Comments at 46; see also Free Press Reply at 30; NTCA Comments at 9; Wireline Broadband Classification Order, 20 FCC Rcd at 14900-903, paras. 89-95. See Wireline Broadband Classification Order, 20 FCC Rcd at 14901, para. 90 (“[P]roviders of wireline broadband Internet access service that offer [broadband Internet access] transmission as a telecommunications service after the effective date of this Order may do so on a permissive detariffing basis.”); id. at 14901, n.270 (“For example, Qwest has indicated that it may continue offering a common carrier DSL transmission service to end users (i.e., its current retail ‘DSL+’ transmission service) . . .”). As discussed above, see Section IV.C.1., the broadband Internet access service we define today is itself a transmission service. We disagree with the argument that in classifying BIAS, rather than a transmission “component” of BIAS, we are diverging from prior precedent regarding these DSL services and what the Justices were debating in Brand X. See Pai Dissent at 40-42. Whether we refer to that function as “access,” “connectivity,” or “transmission,” we have defined BIAS today such that it is the capability to send and receive packets to all or substantially all Internet endpoints. See supra Section IV.C.1. Thus, the service we define and classify today is the same transmission service as that discussed in prior Commission orders. NTCA Reply at 10. ACA Comments at 44; see also id. at 62-66; Letter from Brian Gray, Connectivity Manager, Joink, LLC to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Feb. 2, 2015). See New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001); Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000) (explaining that judicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase”). See, e.g., US Telecom Comments at 28-31; Alcatel-Lucent Comments at 12. Costa v. INS, 233 F.3d 31, 38 (1st Cir. 2000); see also OPM v. Richmond, 496 U.S. 414, 422 (1990) (noting that the Supreme Court has reversed every finding of estoppel against the government that it has reviewed); Heckler v. Community Health Services of Crawford County, 467 U.S. 51, 60 (1984) (“[I]t is well settled that the Government may not be estopped on the same terms as any other litigant.”); Nagle v. Acton-Boxborough Regional School Dist., 576 F.3d 1, 3 (1st Cir. 2009). United States v. Owens, 54 F.3d 271, 275 (6th Cir. 1995) (quoting Reynolds v. Commissioner of Internal Revenue, 861 F.2d 469, 474 (6th Cir. 1988)). Chao v. Roy’s Construction, Inc., 517 F.3d 180, 186 n.5 (3d Cir. 2008); see also United States v. Williams, 612 F.3d 500, 513-14 (6th Cir. 2010); Morris Communications, Inc. v. FCC, 566 F.3d 184, 191 (D.C. Cir. 2009) (equitable estoppel may be applied only if the government “engaged in affirmative misconduct,” such as “misrepresentation or concealment”). United States v. Owens, 54 F.3d at 275; see also New Hampshire v. Maine, 532 U.S. at 755. Brand X, 545 U.S. at 981 (quoting Chevron, 467 U.S. at 863-64) (emphasis added); see also Verizon, 740 F.3d at 636. New Hampshire v. Maine, 532 U.S. at 750 (quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999). See Brief for the Federal Petitioners at 26-28, 38-44, Brand X, 545 U.S. 967. Brand X, 545 U.S. at 985-86 (emphasis in original). New Hampshire v. Maine, 532 U.S. at 750 (quoting In re Cassidy, 892 F.2d 627, 641 (7th Cir. 1990)). See Letter from James Assey, Executive Vice President, NCTA, to Jonathan Sallet, General Counsel, FCC, GN Docket Nos. 14-28 & 10-127, at 1 (filed Dec. 2, 2014) (NCTA Dec. 2, 2014 Ex Parte Letter); see also Letter from Will Marshall, President, Progressive Policy Institute to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Dec. 16, 2014) (PPI Dec. 16, 2014 Ex Parte Letter); MMTC Comments at 9; ACA Comments at 62-64; Letter from James Assey, Exec. Vice President, NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 & 10-127 (filed Nov. 14, 2014) (NCTA Nov. 14, 2014 Ex Parte Letter); Letter from James Assey, Exec. Vice President, NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 & 10-127, at 2 (filed Oct. 30, 2014) (NCTA Oct. 30, 2014 Ex Parte Letter); TWC Comments at 19. Internet Tax Freedom Act § 1101(a)(1), Pub. L. 105–277, 112 Stat. 2681–719 (1998) (codified at 47 U.S.C. § 151 nt.). In December 2014, Congress extended ITFA through September 2015 as part of a continuing resolution and omnibus spending package. See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 624, 128 Stat. 2130, 2377 (2014). See also Letter from Matthew F. Wood, Policy Director, Free Press, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 & 10-127, at 4-5 (filed Dec. 15, 2014) (Free Press Dec. 15, 2014 Ex Parte Letter). See id. § 1105 of the ITFA defines “Internet access” to include “the purchase, use or sale of telecommunications . . . to the extent such telecommunications are purchased, used or sold . . . to provide [a service that enables users to connect to the Internet to access content, information, or other services offered over the Internet].” 47 U.S.C. § 151 nt. S. Comm. On Commerce, Sci. & Transp., Internet Tax Nondiscrimination Act of 2003, S. Rep. No. 108-155, at 2 (Sept. 29, 2003), reprinted in 2004 U.S.C.C.A.N. 2435, 2437. Moreover, today’s decision would not bring broadband providers within the ambit of any state or local laws that impose property taxes on “telephone companies” or “utilities,” as those terms are commonly understood. See, e.g., Letter from Samuel L. Feder, counsel to Charter Communications, Inc. to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Feb. 18, 2015). As noted herein, we are not regulating broadband Internet access service as a utility or telephone company. See, e.g., Cable Modem Declaratory Ruling, 17 FCC Rcd at 4832, para. 59 (using the end-to-end analysis to determine that cable modem Internet access service is jurisdictionally interstate); BPL-Enabled Broadband Order, 21 FCC Rcd at 13288, para. 11; Wireless Broadband Classification Order, Memorandum Opinion and Order, 22 FCC Rcd at 5911, para. 28; GTE Telephone Operating Cos. GTOC Tariff No. 1, GTOC Transmittal No. 1148, 13 FCC Rcd 22466, 22474-83, paras. 16-32 (1998) (GTE Order), recon., 17 FCC Rcd 27409, 27411-12, para. 9 (1999). The record generally supports the continued application of this conclusion to broadband Internet access service. See, e.g., Free Press Dec. 15, 2014 Ex Parte Letter at 5-6. Vonage Holdings Corp., WC Docket No. 03-211, Memorandum Opinion and Order, 19 FCC Rcd 22404, 22419, para. 17 (2004) (citing Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 368 (1986); Petition for Emergency Relief and Declaratory Ruling Filed by the BellSouth Corporation, Memorandum Opinion and Order, 7 FCC Rcd 1619, 1622-23, paras. 18-19 (1992)). Notwithstanding the interstate nature of BIAS, states of course have a role with respect to broadband. As the Commission has stated “finding that this service is jurisdictionally interstate [] does not by itself preclude” all possible state requirements regarding that service. National Association of Regulatory Utility Commissioners Petition for Clarification or Declaratory Ruling that No FCC Order or Rule Limits State Authority to Collect Broadband Data, 25 FCC Rcd 5051, 5054-55, para. 9 (2010) (NARUC Broadband Data Order) (“Given the specific federal recognition of a State role in broadband data collection, we anticipate that such State efforts will not necessarily be incompatible with the federal efforts or inevitably stand as an obstacle to the implementation of valid federal “polic[i]es.”). NARUC Broadband Data Order, 25 FCC Rcd at 5054, para. 8 n.24 (citing GTE Order, 13 FCC Rcd at 22475, para. 16). See generally, e.g., NARUC Broadband Data Order, 25 FCC Rcd 5051. See, e.g., Cable Modem Declaratory Ruling, 17 FCC Rcd at 4832, para. 59; Wireless Broadband Classification Order, 22 FCC Rcd at 5911, para. 28; BPL-Enabled Broadband Order, 21 FCC Rcd at 13288, para. 11. See, e.g., Cable Modem Declaratory Ruling, 17 FCC Rcd at 4832, para. 59 (using the end-to-end analysis to determine that cable modem Internet access service is jurisdictionally interstate); GTE Order, 13 FCC Rcd 22466 (finding GTE’s ADSL service to be properly tariffed as an interstate service). 47 U.S.C. § 160(e). 47 U.S.C. § 254(f). Preemptive delay of state and local regulations is appropriate when the Commission determines that such action best serves federal communications policies. See, e.g., New York State Comm’n on Cable Television v. FCC, 669 F.2d 58, 66 (2d Cir. 1982) (affirming delay of state regulation to comport with Commission policy) (citing Brookland Cable TV, Inc. v. Kelly, 573 F.2d 765 (2d Cir.) cert denied, 441 U.S. 904 (1978); NARUC 1, 525 F.2d at 646). We note that we are not aware of any current state assessment of broadband providers for state universal service funds, as we understand that those carriers that have chosen voluntarily to offer Internet transmission as a Title II service classify such revenues as 100 percent interstate. See infra Section V.C.1.d. See infra Section V. We note also that we do not believe that the classification decision made herein would serve as justification for a state or local franchising authority to require a party with a franchise to operate a “cable system” (as defined in Section 602 of the Act) to obtain an additional or modified franchise in connection with the provision of broadband Internet access service, or to pay any new franchising fees in connection with the provision of such services. See, e.g., Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC at 3 (filed Feb. 4, 2015) (“[I]t would be inappropriate for franchising authorities to require additional franchises, fees, or concessions for the provision of broadband Internet access service by a provider that already has a franchise, either through service regulation or claimed regulation of broadband equipment that adds no appreciable burden to the rights of way.”). See, e.g., Computer & Commc’ns Indus. Ass’n v. FCC, 693 F.2d 198, 214 (D.C. Cir. 1982) (“Courts have consistently held that when state regulation of intrastate equipment or facilities would interfere with achievement of a federal regulatory goal, the Commission’s jurisdiction is paramount and conflicting state regulations must necessarily yield to the federal regulatory scheme.”); see also, e.g., Minnesota Pub. Utilities Comm’n. v. FCC, 483 F.3d 570, 580 (8th Cir. 2007) (“Competition and deregulation are valid federal interests the FCC may protect through preemption of state regulation.”); Pub. Util. Comm’n of Texas v. FCC, 886 F.2d 1325, 1334 (D.C. Cir. 1989); Nat'l Ass'n of Regulatory Util. Comm’rs v. FCC, 737 F.2d 1095, 1114 (D.C. Cir. 1984). 47 U.S.C. § 160(a). “In making the determination under subsection (a)(3) [that forbearance is in the public interest,] the Commission shall consider whether forbearance from enforcing the provision or regulation will promote competitive market conditions, including the extent to which such forbearance will enhance competition among providers of telecommunications services. If the Commission determines that such forbearance will promote competition among providers of telecommunications services, that determination may be the basis for a Commission finding that forbearance is in the public interest.” Id. § 160(b). In addition, “[a] State commission may not continue to apply or enforce any provision” from which the Commission has granted forbearance under section 10. 47 U.S.C. § 160(e). For the same reasons set forth herein with respect to the forbearance granted under our section 10(a) analysis, forbearance from those same provisions and regulations in the case of the mobile broadband Internet access services also is consistent with the virtually identical forbearance standards for CMRS set forth in section 332(c)(1)(A). 47 U.S.C. § 332(c)(1)(A). Petition of AT&T Inc. for Forbearance under 47 U.S.C. § 160 from Enforcement of Certain of the Commission’s Cost Assignment Rules, WC Docket Nos. 07-21, 05-342, Memorandum Opinion and Order, 23 FCC Rcd 7302, 7314, para. 20 (2008) (AT&T Cost Assignment Forbearance Order) (concluding that a rule is not “necessary” under section 10(a)(1) where there is not a current need, and citing Cellular Telecomms. & Internet Ass’n v. FCC, 330 F.3d 502, 512 (D.C. Cir. 2003), which was interpreting the term “necessary” in the context of section 10(a)(2)). AT&T Cost Assignment Forbearance Order, 23 FCC Rcd at 7314, para. 20 (citing Cellular Telecommunications & Internet Ass’n v. FCC, 330 F.3d 502, 512 (2003) (evaluating the Commission’s interpretation of section 10(a)(2) under Chevron step 2)). See AT&T Cost Assignment Forbearance Order, 23 FCC Rcd at 7321, para. 32 (forbearing “because there is no current, federal need for the [rules in question] in these circumstances, and the section 10 criteria otherwise are met”) (emphasis added). EarthLink v. FCC, 462 F.3d 1, 8-9 (D.C. Cir. 2006) (alteration in original). 2015 Broadband Progress Report at para. 4. Id. at para. 12. Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009). 47 U.S.C. § 160(c). Petition to Establish Procedural Requirements to Govern Proceedings for Forbearance Under Section 10 of the Communications Act, as Amended, WC Docket No. 07-267, Report and Order, 24 FCC Rcd 9543, 9554–55, para. 20 (2009) (Forbearance Procedures Order). This burden of proof “encompasses both the burden of production and the burden of persuasion.” Id. at 9556, para. 21. Thus, in addition to stating a prima facie case in support of forbearance, “the petitioner’s evidence and analysis must withstand the evidence and analysis propounded by those opposing the petition for forbearance.” Id. See 47 U.S.C. § 160(a). 47 C.F.R. §§ 1.53-1.59. We thus also reject criticisms of possible forbearance based on arguments that the 2014 Open Internet NPRM would not satisfy those rules. See, e.g., Letter from Earl Comstock, et al. Counsel for Full Service Network and TruConnect, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 6-10, 14 (filed Feb. 3, 2015) (Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter). Indeed, while the Commission modeled its forbearance procedural rules on procedures from the notice and comment rulemaking context in certain ways, in other, significant ways it drew upon procedures used outside that context. Compare, e.g., Forbearance Procedures Order, 24 FCC Rcd at 9558-59, paras. 19, 29 (filing format and notice requirements modeled on procedures used in the notice and comment rulemaking context) with, e.g., id. at 9551, para. 13 & n.51 (requiring that forbearance petitions be complete as filed, drawing from requirements in the section 271, tariffing, and formal complaint contexts and distinguishing the Commission’s approach in notice and comment rulemaking proceedings). Thus, the Commission’s adoption of these rules neither expressly bound the Commission nor reflected its view of the general standards relevant to a notice and comment rulemaking. See, e.g., Verizon v. FCC, 770 F.3d 961, 967 (D.C. Cir. 2014); Qwest v. FCC, 689 F.3d 1214, 1226 (10th Cir. 2012). See, e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 8 n.23. We conclude that the section 10 analytical framework described above comports with the statutory requirements, and is largely consistent with alternative formulations suggested by others. See, e.g., Letter from Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. 3 at 134-37 (filed Feb. 18, 2015). To the extent that such comments could be read to suggest different analyses in any respects, we reject them as not required by section 10, as we interpret it above. As discussed below, we also find that, in proceeding via notice and comment rulemaking here, the Commission provided adequate notice of forbearance. See infra Section V.D. Letter from Sarah J. Morris, Senior Policy Counsel, Open Technology Institute, New America Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Oct. 22, 2014). See, e.g., AT&T Comments at 67; TechFreedom Comments at 37; Time Warner Cable Comments at 18; CBIT Reply at 41-43; Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 16 & n.61. See, e.g., Petition of USTelecom for Forbearance Under 47 U.S.C. § 160(c) from Enforcement of Certain Legacy Telecommunications Regulations, WC Docket No. 12-61, Memorandum Opinion and Order, 28 FCC Rcd 7627, 7675-76, paras. 107-08 (2013) (USTelecom Forbearance Long Order) (granting forbearance from certain cost assignment rules where conditions imposed on the forbearance and other still-applicable rules and requirements were adequate to meet the Commission’s needs); id. at 7668, paras. 86-87 (granting forbearance from property record requirements where the Commission’s needs could be met through compliance plans put in place as conditions of forbearance); id at 7672, para. 98 (forbearing from requirements that interexchange carriers keep certain information in hard copy conditioned on that information being available on the carrier’s website); id. at 7675, para. 104-06 (granting forbearance from certain reporting requirements in light of other still-applicable regulatory requirements and conditions on forbearance); id. at 7678-79, paras. 113-15 (forbearing from other reporting requirements where the information at issue still would be filed or otherwise available in light of other still-applicable regulatory requirements and conditions on forbearance); id. at 7691-92, paras. 142-48 (forbearing from separate affiliate requirements given other still-applicable regulatory requirements and conditions on forbearance); id. at 7705, para. 175 (forbearing from rules governing recording of conversations with the telephone company in light of other, still-applicable legal requirements); Review of Foreign Ownership Policies for Common Carrier and Aeronautical Radio Licensees, IB Docket No. 11-133, First Report and Order, 27 FCC Rcd 9832, 9841, para. 20 (2012) (incorporating section 310(b)(4) requirements in order to satisfy section 10(a)(3) forbearance standard for section 310(b)(3) in certain cases); Petition for Forbearance of Iowa Telecommunications Services, Inc. d/b/a/ Iowa Telecom Pursuant to 47 U.S.C. § 160(c) from the Deadline for Price Cap Carriers to Elect Interstate Access Rates Based on The CALLS Order or a Forward Looking Cost Study, CC Docket No. 01-331, Order, 17 FCC Rcd 24319, 24325-26, paras. 18-19 (2002) (granting forbearance from an interstate switched access rate regulation to allow rates to be re-set at a forward-looking cost level in light of the protections of the forward-looking cost approach to setting the rate and other, still-applicable legal requirements); Petition for Forbearance from Application of the Communications Act of 1934, as Amended, to Previously Authorized Services, Memorandum Opinion and Order, 12 FCC Rcd 8408, 8411-12, paras. 9-10 (Common Car. Bur. 1997) (granting forbearance from section 203 for purposes of providing a refund in light of other, still-applicable legal requirements). See also, e.g., Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Servs., GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411, 1479, para. 176 (granting forbearance under section 332(c)(1)(A) from section 205 in light of other, still-applicable enforcement provisions) (CMRS Title II Forbearance Order). We reiterate that although the Commission has discretion to grant forbearance where other protections that include conditions on forbearance are adequate, in the case of section 10(c) petitions for forbearance the Commission is “under no statutory obligation to evaluate [a] Petition other than as pled.” Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415, 19445, para. 61 n.161 (2005). Section 10(b) does direct the Commission to consider whether forbearance will promote competitive market conditions as part of the public interest analysis under section 10(a)(3). 47 U.S.C. § 160(b). However, while a finding that forbearance will promote competitive market conditions may provide sufficient grounds to find forbearance in the public interest under section 10(a)(3), see id., nothing in the text of section 10 makes such a finding a necessary prerequisite for forbearance where the Commission can make the required findings under section 10(a) for other reasons. See generally 47 U.S.C. § 160. For similar reasons we reject the suggestion that more geographically granular data or information or an otherwise more nuanced analysis are needed with respect to some or all of the forbearance granted in this Order. See, e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 14-16. The record and our analysis supports forbearance from applying the statutory provisions and Commission regulations to the extent described below based on considerations that we find to be common nationwide, and as discussed in our analysis of the record below, we do not find persuasive evidence or arguments to the contrary in the record as to any narrower geographic area(s) or as to particular provisions or regulations. See generally infra Section V.C. Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona Metropolitan Statistical Area, WC Docket No. 09-135, Memorandum Opinion and Order, 25 FCC Rcd 8622, 8622, para. 1 (2010) (Qwest Phoenix Order). Insofar as the Commission likewise was responding to arguments that competition was sufficient to warrant forbearance when acting on other forbearance petitions, this distinguishes those decisions, as well. Likewise, to the extent that the Commission has found competition to be a sufficient basis to grant forbearance on its own motion in the past, that does not dictate that it only can grant forbearance under such circumstances. Rather, the Commission grants forbearance where it finds that the section 10(a) criteria are met. Id. at 8644-45, para. 39. See, e.g., Hurwitz Comments at 11. Personal Communications Industry Association's Broadband Personal Communications Services Alliance’s Petition for Forbearance for Broadband Personal Communications Services et al., WT Docket No. 98-100, GN Docket No. 94-33, Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 16857, 16865, para. 15 (1998) (PCIA Forbearance Order). PCIA Forbearance Order, 13 FCC Rcd at 16865, para. 15. See, e.g., AARP Comments at 42; CDT Comments at 15; COMPTEL Comments at 22-23; Consumers Union Comments at 11; Mozilla Comments at 13; Free Press Reply at 26-27; Sidecar Technologies Reply at 6; Letter from Michael Beckerman, President & CEO, The Internet Association, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 2 (filed Jan. 6, 2015) (Internet Association Jan. 6, 2015 Ex Parte Letter); Letter from William B. Wilhelm, Counsel for Vonage, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (filed Jan. 7, 2015) (Vonage Jan. 7, 2015 Ex Parte Letter); NTCA Jan. 8, 2015 Ex Parte Letter at 2. To be clear, this ex ante rate regulation forbearance does not extend to inmate calling services and therefore has no effect on our ability to address rates for inmate calling services under section 276.  See infra para. REF _Ref412647525 \r \h 521. Thus, in this respect, our decision to apply the provisions actually will promote competitive market conditions at the edge. See 47 U.S.C. § 160(b) (directing the Commission, in “making the determination under subsection (a)(3) of this section, [to] consider whether forbearance from enforcing the provision or regulation will promote competitive market conditions, including the extent to which such forbearance will enhance competition among providers of telecommunications services”). See supra Section III.B.1. See supra Section III. See infra Section V.C.3. We thus reject the arguments of some commenters against the application of these provisions insofar as they assume that such additional regulatory requirements also will apply in the first instance. See, e.g., TIA Comments at 16 (“47 C.F.R. is filled with detailed mandates (e.g., Part 64) implementing Section 201 or other statutory provisions from which the Commission would either have to forbear – or not. Imposition of those most basic of all common carrier statutory obligations undoubtedly would lead to protracted debates over the application of specific rules and the lawfulness of existing broadband ISP service rates, terms, and business practices.”). See infra Section V.C.2.e. See supra Section III.B. Commenters citing generalized information about the extent of switching among broadband providers does not address the specific concerns that we identify here about consumers’ likelihood and ability to switch broadband providers based on particular practices by those providers, nor on the likelihood that any such switching would deter the harmful conduct. See, e.g., USTelecom Comments at 11-13; Verizon Reply at 45-46. 2015 Broadband Progress Report, Chart 2; see also, e.g., CCIA Reply at 2. See supra Section III.B. PCIA Forbearance Order, 13 FCC Rcd at 16868, para. 23; see also, e.g., Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Broadband Services, WC Docket No. 06-125, Memorandum Opinion and Order, 23 FCC Rcd 12260, 12291-92, para. 64 (2008) (Qwest Enterprise Broadband Forbearance Order); Petition of the Embarq Local Operating Companies for Forbearance Under 47 U.S.C. § 160(c) from Application of Computer Inquiry & Certain Title II Common-Carriage Requirements et al., WC Docket No. 06-147, Memorandum Opinion and Order, 22 FCC Rcd 19478, 19507-08, para. 59 (2007), aff’d sub nom. Ad Hoc Telecom. Users Committee v. FCC, 572 F.3d 903 (D.C. Cir. 2009); Petition of AT&T Inc. for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Its Broadband Services et al., WC Docket No. 06-125, Memorandum Opinion and Order, 22 FCC Rcd 18705, 18737-38, para. 67 (2007) (AT&T Enterprise Broadband Forbearance Order), aff’d sub nom. Ad Hoc v. FCC, 572 F.3d 903; Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the Communications Act of 1934, as amended (47 U.S.C. § 160(c)), for Forbearance from Certain Dominant Carrier Regulation of Its Interstate Access Services, and for Forbearance of Title II Regulation of Its Broadband Services, in the Anchorage, Alaska, Incumbent Local Exchange Carrier Study Area, WC Docket No. 06-109, Memorandum Opinion and Order, 22 FCC Rcd 16304, 16360, para. 128 (2007); Petition of SBC Communications, Inc. for Forbearance from the Application of Title II Common Carrier Regulation to IP Platform Services, WC Docket No. 04-29, Memorandum Opinion and Order, 20 FCC Rcd 9361, 9367-68, para. 17 (2005) (SBC IP Platform Services Forbearance Order), pet. for review granted on other grounds sub nom. AT&T Inc. v. FCC, 452 F.3d 830 (D.C. Cir. 2006). PCIA Forbearance Order, 13 FCC Rcd at 16868, para. 23. For the same reasons discussed above, we are not persuaded to reach a different forbearance decision based on asserted levels of competition faced by small- or mid-sized broadband providers. See, e.g., Letter from Barbara S. Esbin, Counsel for ACA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 10-11 (filed Jan. 12, 2015) (ACA Jan. 12, 2015 Ex Parte Letter). See, e.g., Ad Hoc Comments at 7 (“Competitive conditions vary, not only geographically but also structurally. Thus, a subscriber selecting its Internet access service provider may have competitive alternatives that make forbearance from regulation of that transaction necessary and beneficial. But businesses trying to communicate with that subscriber after the choice is made to have no competitive alternatives.”). See, e.g., Americans for Tax Reform and Digital Liberty Comments at 5 (“Title II regulation of the competitive broadband industry would abruptly decelerate the speed of Internet innovation to the speed of government . . . .”); CEA Comments at 13 (“Reclassification would be an excessive ‘solution’ out of proportion to the perceived problem, especially given that any discriminatory behaviors very likely would be mitigated by a competitive market.”); CenturyLink Comments at 48-49 (“[O]ne would expect to find the forces of competition protecting consumer interests, as providers work to capture and retain customers by responding to customer needs.”); Ericsson Comments at 11 (arguing that the provision of Internet service is “a vibrant, competitive industry” and arguing further that applying “[s]ections 201 and 202 of the Act to broadband Internet access would stifle investment and innovation”). See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast Dec. 24, 2014 Ex Parte Letter at 4-6; NCTA Dec. 23, 2014 Ex Parte Letter at 19-20. See, e.g., supra Section IV.C.5. See, e.g., Comcast Dec. 24, 2014 Ex Parte Letter at 5-6; NCTA Dec. 24, 2014 Ex Parte Letter at 20. See, e.g., Charles Acquard, Executive Director, NASUCA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. at 5 (filed Sept. 22, 2014) (noting the “distinction between the US and European regulatory treatment of broadband . . . that incumbent providers make access to elements of their broadband infrastructures available on an unbundled basis for use by rival providers”); see also Letter from Derek Turner, Research Director, Free Press to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 at 4 (filed Feb. 19, 2015) (Free Press Feb. 19, 2015 Ex Parte Letter) (“For 2011–2012, total fixed and mobile capital intensity (capital expenditures as a percentage of revenues) was 12.2 percent in the E.U. countries reporting data, versus 14.1 percent in the U.S. Among the 23 E.U. countries with complete data, 13 reported higher capital intensities than the U.S. did during this two-year period.”)(internal citation omitted). 47 U.S.C. § 332(c)(1)(A) (specifying that although Title II applies to CMRS, the Commission may forbear from enforcing any provision of the title other than sections 201, 202, and 208). See, e.g., Alcatel-Lucent Comments at 15; ACA Comments at 63-64; AT&T Comments at 64–65; Ericsson Comments at 11; TIA Comments at 16; NCTA Reply at 15; Verizon Reply at 51-52; Comcast Dec. 23, 2014 Ex Parte Letter at 18-19; NCTA Dec. 24, 2014 Ex Parte Letter at 18; Letter from William H. Johnson, Vice President & Associate General Counsel, Verizon, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 3-7 (filed Jan. 26, 2015) (Verizon Jan. 26, 2015 Ex Parte Letter); Letter from Barbara S. Esbin, Counsel for ACA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 5 (filed Feb. 2, 2015). While Verizon attempts to distinguish the CMRS experience by claiming that, unlike voice service, “broadband has never been subject to Title II,” Verizon Jan. 26, 2015 Ex Parte Letter at 5, this is both factually incorrect for the reasons described above, see supra Sections IV.A, IV.C.5, nor does it meaningfully address the fact that the CMRS marketplace has seen substantial growth and investment under the regulatory framework that the Commission did apply. See supra Section III.F.4. In any case, the three prongs of section 10(a) are conjunctive and the Commission could properly deny a petition for failure to meet any one prong. Cellular Telecomms. & Internet Ass'n v. FCC, 330 F.3d 502, 509 (D.C. Cir. 2003). Here, and as to the enforcement provisions below, we find none of the prongs satisfied. See, e.g., AT&T Comments at 3; Comcast Comments at 42-43; Georgetown Center for Business and Public Policy Comments at 4; NCTA Reply at 24-30; WISPA Reply at 27. For example, although we find that we have authority under section 706 of the 1996 Act to implement appropriate enforcement mechanisms, our reliance on sections 201 and 202 as additional sources of authority (coupled with the enforcement provisions from which we do not forbear, as discussed below), eliminates possible arguments to the contrary. See, e.g., Comstock Reply at 22 (noting that the Commission’s forfeiture “regulations at 47 C.F.R. 1.80 (2013) list the violations of specific Acts to which forfeitures apply and section 706 of the Telecommunications Act is not one of them”). See, e.g., Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 4-6 (filed Jan. 14, 2015) (NCTA Jan. 14, 2015 Ex Parte Letter). See, e.g., NCTA Jan. 14, 2015 Ex Parte Letter at 5 (proposing that the Commission forbear from section 201(b) either in its entirety or outside the open Internet context); NCTA Dec. 24, 2014 Ex Parte Letter at 18-19 (citing a proposal from Congresswoman Eshoo to forbear from all of Title II other than section 202(a)); Letter from Kathryn A. Zachem, Senior Vice President, Regulatory and State Legislative Affairs, Comcast, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1-2 (filed Feb. 11, 2015) (seeking forbearance from applying the prohibition on unjust and unreasonable “charges” under section 201(b)). While the Commission can proceed incrementally, see, e.g., NCTA v. Brand X, 545 U.S. 967, 1002 (2005), the agency also has a “continuing obligation to practice reasoned decisionmaking” that includes revisiting prior decisions to the extent warranted. Aeronautical Radio v. FCC, 928 F.2d 428 (D.C. Cir. 1991). See supra Section IV. We thus reject claims that we somehow are using forbearance to increase regulation. See, e.g., Letter from CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 10-11 (filed Feb. 10, 2015); Letter from Timothy M. Boucher, Associate General Counsel, CenturyLink, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3-4 (filed Feb. 4, 2015). Rather, we are using it to tailor the regulatory regime otherwise applicable to these telecommunications services. See, e.g., NCTA Jan. 14, 2015 Ex Parte Letter at 4. See supra para. REF _Ref413762492 \r \h 445. See infra Sections V.C.2, V.C.3. See infra Section V.C.2.e (relying in part on the applicability of section 201(a), in particular, as part of the justification for forbearance from other interconnection requirements). See supra Section III.D.2. See supra Section III.F.4. EarthLink, 462 F.3d at 9. Our decision to proceed in a tailored manner is discussed in greater detail below. See infra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See, e.g., Ericsson Comments at 11 (expressing concern about the risks of long-term rate regulation and other uncertainties caused by the application of Sections 201 and 202); NCTA Reply at 15 (citing a “dizzying array” of requirements that the Commission has adopted in the past pursuant to its authority under sections 201 and 202). See infra Sections V.C.2, V.C.3. In this regard, commenters advocating forbearance from sections 201 and 202 to guard against new rules that the Commission might adopt pursuant to that authority do not meaningfully explain what incremental benefit that would achieve given that any future Commission proceeding would be required to adopt such rules in any case. See, e.g., Comcast Dec. 24, 2014 Ex Parte Letter at 18; Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 5-6 (filed Jan. 14, 2015) (NCTA Jan. 15, 2015 Ex Parte Letter). 47 U.S.C. § 208; see, e.g., 47 C.F.R. §§ 1.701-.736 (informal and formal complaints regarding common carriers), 8.12-.17 (rules for formal complaints alleging violation of open Internet rules). 47 U.S.C. § 208. Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Servs., Second Report and Order, 9 FCC Rcd 1411, 1482, para. 16 (1994) (CMRS Title II Forbearance Order). See also, e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 21 (discussing sections 206 and 207). Allowing for the recovery of damages does not mean that an award of damages necessarily would be appropriate in all, or even most, cases. The Commission has discretion to deny an award of damages and grant only prospective injunctive-type relief where a case raises novel issues on which the Commission has not previously spoken, or where the measurement of damages would be speculative. The Commission also has authority to adopt rules and procedures that are narrowly tailored to address the circumstances under which damages would be available in particular types of cases. Wireless Forbearance Order, 9 FCC Rcd at 1482, para. 186. See supra Section V.B.1. Consistent with our analysis above, see supra para. REF _Ref412542139 \r \h 448, although section 706 of the 1996 Act would remain, these Title II enforcement provisions provide a more certain foundation for pursuing enforcement if warranted in relevant circumstances arising in the future. See supra Section III.F.4. See, e.g., AARP Comments at 42; CDT Comments at 15; COMPTEL Comments at 22-23; Mozilla Comments at 13; Free Press Reply at 26-27; Sidecar Technologies Reply at 6. 2010 Broadband Classification NOI, 25 FCC Rcd at 7898, para. 75 47 U.S.C. § 332(c)(1). See, e.g., Public Knowledge et al. Comments at 93. Because we conclude that forbearance is not warranted under the section 10(a) criteria, we need not, and do not, reach the question of the scope of our authority to forbear from provisions such as 206 and 207. Compare, e.g., Letter from Matthew A. Brill, Counsel for NCTA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2-4 (filed Feb. 20, 2015) (NCTA Feb. 20, 2015 Ex Parte Letter) (arguing that we have authority under section 10 to fully forbear from sections 206 and 207) with, e.g., Public Knowledge Comments at 93 (questioning whether we have authority to forbear from section 207). For the reasons discussed above, we thus reject the assertions of some commenters that enforcement is unduly burdensome. See, e.g., ACA Comments at 63-64 (expressing concern about unspecified “[i]ncreased legal expenses and time associated with case-by-case adjudication of rates, terms, conditions of service under Section 208”). In particular, we are not persuaded that such concerns outweigh the overarching interest advanced by the enforceability of sections 201 and 202. Nothing in the record demonstrates that our need for enforcement differs among broadband providers based on their size, and we thus are not persuaded that a different conclusion in our forbearance analysis should be reached in the case of small broadband providers, for example. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; Letter from Gregory A. Friedman, Owner, AireBeam, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 2 (filed Jan. 30, 2015) (AireBeam Jan. 30, 2015 Ex Parte Letter). See, e.g., NCTA Feb. 20, 2015 Ex Parte Letter at 6. See, e.g., Letter from Harold Feld, Senior Vice President, Public Knowledge, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 2-3 (filed Feb. 20, 2015). See, e.g., North Cty. Commc’ns Corp. v. California Catalog & Tech., 594 F.3d 1149, 1158 (9th Cir. 2010) (North County) (“[G]iven the broad language of” section 201(b), “it is within the Commission’s purview to determine whether a particular practice constitutes a violation for which there is a private right to compensation.”); Hoffman v. Rashid, 388 Fed. Appx. 121, 123 (3d Cir. 2010) (adopting the same position in a per curiam opinion that summarily affirmed the district court’s judgment); Iris Wireless LLC v. Syniverse Tech., 2014 WL 4436021, *3 (M.D. Fla. Sept. 8, 2014) (“a court should not ‘fill in the analytical gap’ where the Commission has not made a determination regarding whether a company’s action violates section 201(b)”) (quoting North County, 594 F.3d at 1158); see also id. (“if the Court were to make a declaratory ruling” on an issue that the Commission had not yet addressed, “it would ‘put interpretation of a finely-tuned regulatory scheme squarely in the hands of private parties and some 700 federal district judges, instead of in the hands of the Commission’”) (quoting North County, 594 F.3d at 1158); Havens v. Mobex Network Servs., LLC, 2011 WL 6826104, *9 (D.N.J. Dec. 22, 2011) (in dismissing a claim that “it is a violation of section 201(b) for a party to ‘warehouse’ toll free numbers without identified subscribers,” the court reasoned that because previous Commission orders “do not address the precise type of conduct at issue in this case,” the court could not “risk disturbing the delicate regulatory framework that the Commission is tasked with maintaining”). In re Long Distance Telecomm. Litigation, 831 F.2d 627, 631 (6th Cir. 1987) (“claims based on section 201(b) of the Communications Act are within the primary jurisdiction of the FCC,” and an assessment of whether “defendants engaged in unreasonable practices . . . is a determination that Congress has placed squarely in the hands of the [FCC]”) (internal quotation marks omitted); Free Conferencing Corp. v. T-Mobile US, Inc., 2014 WL 7404600, *7 (C.D. Cal. Dec. 30, 2014) (because “re-routing calls to rural LECs is an evolving area of law,” and because it “is important to ‘protect[ ] the integrity’ of the FCC’s evolving regulatory scheme,” the court decided “not to meddle” in this area until the Commission had ruled on the question) (quoting United States v. General Dynamics Corp., 828 F.2d 1356, 1362 (9th Cir. 1987)); James v. Global Tel*Link Corp., 2014 WL 4425818, **6-7 (D.N.J. Sept. 8, 2014) (“where the question is whether an act is reasonable” under section 201(b), “primary jurisdiction should be applied”; the reasonableness of defendants’ charges and practices in providing inmate calling services “implicates technical and policy questions that the FCC has the special expertise to decide in the first instance”) (internal quotation marks omitted); Demmick v. Cellco P’ship, 2011 WL 1253733, *6 (D.N.J. March 29, 2011) (“courts have consistently found that reasonableness determinations under [section] 201(b) lie within the primary jurisdiction of the FCC, because they involve policy considerations within the agency’s discretion and particular field of expertise”). See supra Section V.B.1. See infra Section V.C.1. See supra Section III. The 2014 Open Internet NPRM here did not contemplate possible forbearance from the open Internet rules themselves, and thus they are beyond the scope of regulations addressed by this forbearance decision. In any case, the very reasons that persuade us to adopt the rules in the Order likewise demonstrate that forbearance from those rules would not satisfy the section 10(a) criteria here. See infra Section V.C.1.b. See infra Section V.C.3. This Order does not alter any additional or broader forbearance previously granted that already might encompass broadband Internet access service in certain circumstances, for example, insofar as broadband Internet access service, when provided by mobile providers, is a CMRS service. As one example, the Commission has granted some forbearance from section 310(d) for certain wireless licensees that meet the definition of “telecommunications carrier,” see generally Federal Communications Bar Association's Petition for Forbearance from Section 310(d) of the Communications Act, Memorandum Opinion and Order, 13 FCC Rcd 6293 (1998) (FCBA Forbearance Order), but section 310(d) is not itself framed in terms of “common carriers” or “telecommunications carriers” or providers of “CMRS” or the like, nor is it framed in terms of “common carrier services,” “telecommunications services,” “CMRS services” or the like. To the extent that such forbearance thus goes beyond the forbearance for wireless providers granted in this Order, this Order does not narrow or otherwise modify that pre-existing grant of forbearance. For clarity, we observe, however, that the broadband Internet access service covered by our open Internet rules is beyond the scope of a petition for forbearance from Verizon regarding certain broadband services that was deemed granted by operation of law on March 19, 2006. See Verizon Telephone Companies' Petition for Forbearance from Title II and Computer Inquiry Rules with Respect to their Broadband Services Is Granted by Operation of Law, WC Docket No. 04-440, News Release (rel. Mar. 20, 2006). While Verizon’s initial petition sought broad relief from “all” broadband services, in its February 7, 2006, amendment to its petition, Verizon provided a “List of Broadband Services for Which Verizon Is Seeking Forbearance,” which did not encompass a broadband Internet access service of the sort at issue here. Letter from Edward Shakin, Vice President and Associate General Counsel, Verizon, to Marlene H. Dortch, Secretary, FCC, WC Docket No. 04-440, Attach. 1 (filed Feb. 7, 2006) (Verizon Feb. 7, 2006 Forbearance Ex Parte Letter). Indeed, the Commission previously has distinguished between the enterprise broadband services for which Verizon was deemed granted relief by operation of law and broadband Internet access service. Compare Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the Communications Act of 1934, As Amended (47 U.S.C. § 160(c)), For Forbearance From Certain Dominant Carrier Regulation of Its Interstate Access Services, and For Forbearance From Title II Regulation of Its Broadband Services, In the Anchorage, Alaska, Incumbent Local Exchange Carrier Study Area, WC Docket No. 06-109, Memorandum Opinion and Order, 22 FCC Rcd 16304, 16315-16, para. 21 (2007) (“ACS seeks relief ‘consistent with that granted to Verizon Telephone Companies on March 19, 2006,’ for ‘broadband services.’ Specifically, ACS seeks relief from regulation as a common carrier or telecommunications service provider for any packetized broadband services it offers or may offer in Anchorage.”) with id. at 16318, para. 25 (distinct from the request for forbearance comparable to that deemed granted to Verizon, “ACS requests conditional forbearance from dominant carrier regulation of its interstate switched and special access services, and contends that such relief would be consistent with the Qwest Omaha Order. To the extent that ACS seeks relief for . . . mass market broadband Internet access transmission services, its request falls within the same category of services for which relief was granted to Qwest.”). See also, e.g., Petition of AT&T Inc. For Forbearance Under 47 U.S.C. § 160(c) From Title II and Computer Inquiry Rules With Respect To Its Broadband Services, et al., WC Docket No. 06-125, Memorandum Opinion and Order, 22 FCC Rcd 18705, 18714-15, para. 14 n. 59 (2008) (“Verizon restricted its forbearance request to ten of its then-existing telecommunications services offerings. See Verizon WC Docket No. 04-440 Feb. 7 Letter at Attach. 1, at 1 (providing ‘List of Broadband Services for Which Verizon Is Seeking Forbearance’).”). We note that the Commission did adopt permissive detariffing for such services. Wireline Broadband Classification Order, 20 FCC Rcd at 14900-03, paras. 89-95. See also, e.g., Letter from Michael R. Romano, Senior Vice President—Policy, NTCA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Feb. 9, 2015) (“as part of any statements with respect to classification of broadband in the order, NTCA urged the Commission to ensure that small rural telcos such as those within NTCA’s membership can continue to avail themselves of the option to tariff broadband-capable transmission services that underpin retail broadband Internet access services.”). See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14927-29, paras. 139-44 (discussing the application of section 254(k) and related cost-allocation rules); id. at paras. 126-27 (“Thus, competitive LECs will continue to have the same access to UNEs, including DS0s and DS1s, to which they are otherwise entitled under our rules, regardless of the statutory classification of service the incumbent LECs provide over those facilities. So long as a competitive LEC is offering an ‘eligible’ telecommunications service – i.e., not exclusively long distance or mobile wireless services – it may obtain that element as a UNE.”). For example, if a rate-of-return incumbent LEC (or other provider) voluntarily offers Internet transmission outside the forbearance framework adopted in this Order, it remains subject to the pre-existing Title II rights and obligations, including those from which we forbear in this Order. If such a provider wants to change to offer Internet access services pursuant to the construct adopted in this Order, it should notify the Wireline Competition Bureau 60 days prior to implementing such a change. See, e.g., CDT Comments at 16; NMR Comments at 25; Rural Broadband Policy Group Comments at 8-9; Public Knowledge Dec. 19, 2014 Ex Parte Letter at 19; Free Press Nov. 21, 2014 Ex Parte Letter at 1; Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 21. CPNI is defined as “(A) information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and (B) information contained in the bills pertaining to telephone exchange service or telephone toll service received by a customer of a carrier.” 47 U.S.C. § 222(h)(1). 47 U.S.C. § 222(a); Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer Proprietary Network Information and Other Customer Information, CC Docket No. 96-115, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6959, para. 64 (2007); Declaratory Ruling, 28 FCC Rcd 9609 (2013). We take this mandate seriously. For example, the Commission recently took enforcement action under section 222 (and section 201(b)) against two telecommunications companies that stored customers’ personal information, including social security numbers, on unprotected, unencrypted Internet servers publicly accessible using a basic Internet search. This unacceptably exposed these consumers to the risk of identity theft and other harms. See TerraCom, Inc. and YourTel America, Inc. Apparent Liability for Forfeiture, File No.: EB-TCD-13-00009175, Notice of Apparent Liability, FCC 14-173, paras. 31-41 (rel. Oct. 24, 2014). See also, e.g., Letter from Erik Stallman, Director, Open Internet Project, CDT, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 3-4 (filed Feb. 4, 2015) (CDT Feb. 4, 2015 Ex Parte Letter). See 47 U.S.C. § 222(c)(1) (permitting a carrier, except as required by law or with the customer’s consent, to use, disclose, or permit access to individually identifiable CPNI only “in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.”). The Commission has made clear that “to the extent a telecommunications carrier that is a provider of electronic communication services or remote computing services is compelled by 18 U.S.C. § 2258A to disclose CPNI in a report to the CyberTipline, that carrier would not be in violation of its privacy duties under section 222 of the Communications Act.” Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use Of Customer Proprietary Network Information and Other Customer Information, CC Docket No. 96-115, Declaratory Ruling, 25 FCC Rcd 14335, 14336-37, para. 5 (Wireline Comp. Bur. 2010). See also Implementation of the Telecommunications Act of 1996: Telecommunications Carriers' Use of Customer Proprietary Network Information and Other Customer Information, CC Docket No. 96-115, Declaratory Ruling, 21 FCC Rcd 9990 (2006) (addressing the predecessor disclosure provision). That interpretation of section 222 remains true as to broadband Internet access service. 47 U.S.C. § 160(a)(2), (3). For example, the Commission has noted that “long before Congress enacted section 222 of the Act, the Commission had recognized the need for privacy requirements associated with the provision of enhanced services and had adopted CPNI-related requirements in conjunction with other Computer Inquiry obligations.” Wireline Broadband Classification Order, 20 FCC Rcd at 14931, para. 149 & n.447 (seeking comment on privacy protections). Id. at 14930, para. 148 (“For example, a consumer may have questions about whether a broadband Internet access service provider will treat his or her account and usage information as confidential, or whether the provider reserves the right to use account information for marketing and other purposes.”). See, e.g., Access Comments at 7 (stating that broadband providers have the technological capacity to exercise monitoring and control of their customers’ use of the Internet using techniques such as deep packet inspection). See, e.g., 2015 Broadband Progress Report, paras. 104-05; National Broadband Plan at 17 (citing John Horrigan, Broadband Adoption and Use in America (OBI, Working Paper No. 1, 2010). See also, e.g., Pew Research Center, Who’s not online and why, at 6 (Sept. 2013), http://www.pewinternet.org/files/old-media/Files/Reports/2013/PIP_Offline%20adults_092513_PDF.pdf. Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer Proprietary Network Information and Other Customer Information; IP-Enabled Services, CC Docket No. 96-115, WC Docket No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6957, para. 59 (2007); see also National Broadband Plan at 55 (explaining that without privacy protections, new innovation and investment in broadband applications and content may be held back, and these applications and content, in turn, are likely the most effective means to advance many of Congress’s goals for broadband). See, e.g., MediaFreedom Comments at 2; TIA Comments at 17; ADTRAN Reply at 17-18; Letter from Robert W. Quinn, Jr., Senior Vice President, Federal Regulatory and Chief Privacy Officer, AT&T, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 5 (filed May 9, 2014). Consequently, we reject those arguments. See 47 U.S.C. § 160(a)(2); see also, e.g., Free Press Comments at 83, n.180; Public Knowledge Reply at 20-22. Some commenters contend that the Commission should forbear from all of Title II based on generalized arguments about the marketplace, such as past network investment or changes in performance or price per megabit in the recent past. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast Dec. 24, 2014 Ex Parte Letter at 4-6; NCTA Dec. 23, 2014 Ex Parte Letter at 19-20. We are not persuaded that those arguments justify a different outcome here, both for the reasons discussed previously, see supra Section V.B.1, and because commenters do not meaningfully explain how these arguments impact the section 10 analysis here, given that the need to protect consumer privacy is not self-evidently linked to such marketplace considerations. Nothing in the record suggests that concerns about consumer privacy are limited to broadband providers of a particular size, and we thus are not persuaded that a different conclusion in our forbearance analysis should be reached in the case of small broadband providers, for example. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; AireBeam Jan. 30, 2015 Ex Parte Letter at 2. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; NCTA Jan. 14, 2015 Ex Parte Letter at 3-4. See, e.g., supra Section III.F.4. We also note, for example, that this approach obviates the need to determine whether or to what extent section 222 is more specific than section 706 of the 1996 Act in relevant respects, and thus could be seen as exclusively governing over the provisions of section 706 of the 1996 Act as to some set of privacy issues. Cf. Bloate v. U.S., 559 U.S. 196, 208 (2010) (“‘[g]eneral language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment’”) (citation omitted). The approach we take avoids this potential uncertainty, and we thus need not and do not address this question. See, e.g., CDT Comments at 16; Letter from Marvin Ammori and Julie Samuels, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Nov. 12, 2014); Letter from COMPTEL, CCIA, Engine, and IFBA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1-2 n.1 (filed Dec. 30, 2014). While CDT references the questions regarding the application of section 222 and our implementing rules raised in the 2010 Broadband Classification NOI, CDT Comments at 16 (citing 2010 Broadband Classification NOI, 25 FCC Rcd at 7900-01, para. 82), that NOI cited reasons why the Commission might immediately apply section 222 and the Commission’s implementing rules if it reclassified broadband Internet access service as well as reasons why it might defer the application of those requirements. We thus find that the 2010 NOI does not itself counsel one way or the other, and in light of the record here, we decline to defer the application of section 222 and our implementing rules. See, e.g., Implementation of the Telecommunications Act of 1996: Telecommunications Carriers' Use of Customer Proprietary Network Information and Other Customer Information, CC Docket No. 96-115, Declaratory Ruling, 28 FCC Rcd 9609 (2013) (Wireless Device Privacy Declaratory Ruling) (“address[ing] the real privacy and security risks that consumers face when telecommunications carriers use their control of customers’ mobile devices to collect information about their customers’ use of the network”). We also note in this regard that the Commission cannot impose a penalty in the absence of “fair notice of what is prohibited.” FCC v. Fox Television Stations, 132 S. Ct. 2307, 2317 (2012). See, e.g., CDT Comments at 17 (asserting, without explanation, that a rulemaking might be needed to “address exactly how Section 222 should apply in the Internet connectivity context, including how to define ‘customer proprietary network information’ (CPNI) for this purpose”); Verizon Jan. 26, 2015 Ex Parte Letter at 7-8 (arguing that it is unclear what certain requirements of section 222 would mean in the context of broadband Internet access service). See, e.g., TerraCom, Inc. and YourTel America, Inc. Apparent Liability for Forfeiture, File No.: EB-TCD-13-00009175, Notice of Apparent Liability, FCC 14-173, paras. 31-41 (rel. Oct. 24, 2014); Wireless Device Privacy Declaratory Ruling, 28 FCC Rcd at 9619-20, paras. 29-32 (discussing statutory restrictions applicable to CPNI). The Commission adopted significant reforms to its rules implementing section 222 in 2007. Implementation of the Telecommunications Act of 1996: Telecommunications Carriers' Use of Customer Proprietary Network Information and Other Customer Information; IP-Enabled Services, CC Docket No. 96-115, WC Docket No. 04-36, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927 (2007). In doing so, the Commission was, in significant part, focused on dealing with problems of “pretexting,” which involved “data brokers . . . obtain[ing] private and personal information, including what calls were made to and/or from a particular telephone number and the duration of such calls.” Id. at 6928-29, para. 2; see also id. at 6928, para. 1 n.1 (noting Congress’ criminalization of pretexting activity in 18 U.S.C. § 1039, which focuses on “phone” records). 47 C.F.R. §§ 64.2003, 64.2010. EarthLink, 462 F.3d at 9. Our decision to proceed in a tailored manner is discussed in greater detail below. See infra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See, e.g., Wireless Device Privacy Declaratory Ruling, 28 FCC Rcd 9609 (addressing how section 222 of the Act, and the Commission’s implementing rules, apply to information relating to telecommunications service and interconnected VoIP service that fits the statutory definition of CPNI when such information is collected by the customer’s device, provided the collection is undertaken at the mobile wireless carrier’s direction and the carrier or its designee has access to or control over the information). See, e.g., Public Knowledge Comments at 95; Rural Broadband Policy Group Comments at 8; Telecommunications for the Deaf and Hard of Hearing Comments at 8-13. 47 U.S.C. §§ 225(a)(3), (b)(1) . 47 U.S.C. § 225(a)(3). See generally Telecommunications Relay Services, and the Americans with Disabilities Act of 1990, CC Docket No. 90–571, Notice of Proposed Rule Making, 5 FCC Rcd 7187 (1990); Report and Order and Request for Comment, 6 FCC Rcd 4657, 4660, para. 17 (1991) (TRS Order); Order on Reconsideration, Second Report and Order and Further Notice of Proposed Rule Making, 8 FCC Rcd 1802 (1993) (TRS II); Third Report and Order, 8 FCC Rcd 5300 (1993) (TRS III). VRS is a form of TRS that allows people who are blind, hard of hearing, deaf-blind, and who have speech disabilities who use sign language to communicate with voice telephone users through a CA using video transmissions over the Internet. See 47 C.F.R. § 64.601(a)(40). See generally Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; E911 Requirements for IP-Enabled Service Providers, CG Docket No. 03-123, WC Docket No. 05-196, Report and Order and Further Notice of Proposed Rulemaking, 23 FCC Rcd 11591 (2008) (First Internet-Based TRS Order); Second Report and Order and Order on Reconsideration, 24 FCC Rcd 791 (2008) (Second Internet-Based TRS Order). In addition, these populations rely on other forms of Internet-based TRS (iTRS), including Internet Protocol Relay Service (IP Relay) and Internet Protocol Captioned Telephone Service (IP CTS). IP Relay is a “telecommunications relay service that permits an individual with a hearing or a speech disability to communicate in text using an Internet Protocol-enabled device via the Internet, rather than using a text telephone (TTY) and the public switched telephone network.” 47 C.F.R. § 64.601(a)(17). IP CTS is a “telecommunications relay service that permits an individual who can speak but who has difficulty hearing over the telephone to use a telephone and an Internet Protocol-enabled device via the Internet to simultaneously listen to the other party and read captions of what the other party is saying.” 47 C.F.R. § 64.601(a)(16). See, e.g., Structure and Practices of the Video Relay Service Program, CG Docket No. 10-51, Declaratory Ruling, Order and Notice of Proposed Rulemaking, 25 FCC Rcd 6012, 6014, para. 3 (2010). See 47 U.S.C. § 225(a)(3). See 47 C.F.R. § 64.605. See, e.g., Purple Communications, Inc., File No.: EB-TCD-12-00000376, Notice of Apparent Liability, 29 FCC Rcd 5491, para. 29 & n.71 (2014) (citing and summarizing precedent). 47 U.S.C. § 225(d)(3)(B); 47 C.F.R. § 64.604(c)(5)(iii). EarthLink, 462 F.3d at 9. Our decision to proceed in a tailored manner is discussed in greater detail below. See infra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. As noted below, we do not forbear from the obligation of carriers that have chosen voluntarily to offer broadband as a Title II service to contribute to the Interstate TRS Fund. Cf. Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24, 03-123, Order and Notice of Proposed Rulemaking, 28 FCC Rcd 703, 707, para. 7 (2013) (describing potential Anti-Deficiency Act issues that could arise if there were insufficient TRS funds available and the impact that would have on all TRS programs) rev’d Sorenson v. FCC, 755 F.3d 702 (2014) (finding, in pertinent part, that the Commission had not sufficiently demonstrated the actual imminence of a fiscal calamity to support good cause to forgo notice and comment). See, e.g., Public Knowledge Comments at 95; Rural Broadband Policy Group Comments at 8; Telecommunications for the Deaf and Hard of Hearing Comments at 8-13; The Advanced Communications Law & Policy Institute at New York Law School Reply, Attach. 8; Letter from Teresa Favuzzi, Executive Director, California Foundation of Independent Living Centers, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 3 (filed Dec. 17, 2014) (CFILC Dec. 17, 2014 Ex Parte Letter). 47 U.S.C. § 255. 47 U.S.C. § 251(a)(2). See, e.g., Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, CC Docket No. 98-146, Report, 14 FCC Rcd 2398, 2437-38, paras. 75-77 (1999) (First Broadband Deployment Report) (“We caution, however, that the promise of advanced telecommunications capability for people with disabilities will not be realized unless inherent barriers in telecommunications products and services are removed, and accessible equipment and services are widely available through mainstream markets. . . . [W] e are committed to taking advantage of any opportunities to encourage the deployment of advanced telecommunications service to people with disabilities. Plans for the deployment of advanced services should also address the needs of persons with disabilities.”); Wireline Broadband Classification Order, 20 FCC Rcd at 14919-22, paras. 121-24 (“[T]he Commission will remain vigilant in monitoring the development of wireline broadband Internet access service and its effects on the important policy goals of section 255. As noted above, we will exercise our Title I ancillary jurisdiction to ensure achievement of important policy goals of section 255 and also section 225 of the Act.”). National Broadband Plan at 21; id. at 169 (stating, “Devices often are not designed to be accessible for people with disabilities.”). See also, e.g., CFILC Dec. 17, 2014 Ex Parte Letter at 1-2. See e.g., Elizabeth E. Lyle, A Giant Leap & A Big Deal: Delivering on the Promise of Equal Access to Broadband for People with Disabilities, 4 (FCC Omnibus Broadband Initiative, Working Paper No. 2, 2010) (OBI Working Paper No. 2) (noting broadband allows persons with disabilities to telecommute or run a business in their homes); CFILC Dec. 17, 2014 Ex Parte Letter at 1-2. Moreover, broadband can make telerehabilitation services possible, by providing long-term health and vocational support within the individual’s home. See, e.g., CFILC Dec. 17, 2014 Ex Parte Letter at 2; OBI Working Paper No. 2 at 4. Broadband can also provide increased access to online education classes and digital books and will offer real time interoperable voice, video and text capabilities for E911. See, e.g., CFILC Dec. 17, 2014 Ex Parte Letter at 2; OBI Working Paper No. 2 at 5. In addition, as commenters note, “society as a whole” can “benefit[] when people with disabilities have access to [broadband Internet access] services in a manner equivalent to the non-disabled population.” CFILC Dec. 17, 2014 Ex Parte Letter at 1. See, e.g., CFILC Dec. 17, 2014 Ex Parte Letter at 1-2; OBI Working Paper No. 2 at 4-5. Cf. Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, GN Docket No. 07-45, 23 FCC Rcd 9615, 9643-44, para. 57 (2008) (Fifth Broadband Deployment Report) (through actions to extend the requirements of sections 225 and 255, “the Commission availed broadband offerings to more Americans, which in turn increased broadband deployment demand”). See, e.g., Ammori Dec. 19, 2014 Ex Parte Letter at 5. Twenty-First Century Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751 (2010) (codified in various sections of 47 USC) (CVAA), amended by Pub. L. No. 111-265, 124 Stat. 2795 (2010) (technical corrections). 47 U.S.C. § 617(f) (“The requirements of this section shall not apply to any equipment or services, including interconnected VoIP service, that are subject to the requirements of section 255 of this title on the day before October 8, 2010. Such services and equipment shall remain subject to the requirements of section 255 of this title.”). Implementation of Sections 716 and 717 of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010 et al., CG Docket No. 10-213 et al., Second Report and Order, 28 FCC Rcd 5957, 5960-61, para. 7 (2013). 47 U.S.C. §§ 617, 619. ACS means: “(A) interconnected VoIP service; (B) non-interconnected VoIP service; (C) electronic messaging service; and (D) interoperable video conferencing service.” 47 U.S.C. § 153(1). 47 U.S.C. § 617(e)(1)(B); see also 47 C.F.R. § 14.20(c). 47 U.S.C. § 618. S. Rep. No. 104-23 at 52 (1996) (discussing what ultimately became section 255 of the Act). S. Rep. No. 111–386, at 1 (2010); H.R. Rep. No. 111-563, at 19 (2010). A general canon of interpretation is that where two statutory provisions conflict, the specific governs the general—but we need not and do not decide the question of whether the provisions enacted by the CVAA are more specific here because we are persuaded by the legislative history of those provisions that, insofar as there is a conflict, the provisions of the CVAA should be controlling in any case. See, e.g., Ohio Power Co. v. FERC, 744 F.2d 162, 167-68 & n.7 (D.C. Cir. 1984) (concluding that “assuming arguendo that section 20 and 23 [of the agreement at issue] are in conflict, it remains unclear which section provides the more specific command,” and ultimately finding FERC’s “examination of the apparently contradicting sections thorough and its interpretation reconciling their terms entirely reasonable”). See, e.g., Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir. 1994) (“‘[W]hen two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.’”) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)) (alteration in original). We recognize that the Commission previously has held that “[s]ection 2(a) of the CVAA exempts entities, such as Internet service providers, from liability for violations of Section 716 when they are acting only to transmit covered services or to provide an information location tool. Thus, service providers that merely provide access to an electronic messaging service, such as a broadband platform that provides an end user with access to a web-based e-mail service, are excluded from the accessibility requirements of Section 716.” Implementation of Sections 716 and 717 of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010 et al., CG Docket No. 10-213 et al., Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 14557, 14576, para. 45 (2011). Our decision here is not at odds with Congress’ approach to such services under the CVAA, however, because we also have found that “relative to Section 255, Section 716 requires a higher standard of achievement for covered entities.” Implementation of Sections 716 and 717 of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010 et al., CG Docket No. 10-213 et al., Notice of Proposed Rulemaking, 26 FCC Rcd 3133, 3136-37, para. 5 (2011). Thus, under our decision here, broadband Internet access service will remain excluded from the “higher standard of achievement” required by the CVAA to the extent provided by that law, and instead will be subject to the lower standard imposed under section 255 in those cases where the CVAA does not apply. See 47 C.F.R. § 6.9. Because this section requires pass through of telecommunications in an accessible format, and 47 C.F.R. § 14.20(c) requires pass through of ACS in an accessible format, the two sections work in tandem with each other, and forbearance from sections 255 and 251(a)(2) would therefore result in a diminution of accessibility. We recognize that section 716 provides that “[t]he requirements of this section shall not apply to any equipment or services, including interconnected VoIP service, that are subject to the requirements of section 255 of this title on the day before October 8, 2010. Such services and equipment shall remain subject to the requirements of section 255 of this title.” 47 U.S.C. § 617(f). We do not read that as requiring that section 716 must necessarily be mutually exclusive with section 255, however. Had Congress wished to achieve that result, it easily instead could have stated that “the requirements of this section shall not apply to any equipment or services . . . that are subject to the requirements of section 255” (or vice versa) and left it at that. By also including the limiting language “that are subject to the requirements of section 255 of this title on the day before October 8, 2010,” we believe the statute reasonably is interpreted as leaving open the option that services that become subject to section 255 thereafter also could be subject to both the requirements of section 255 and the requirements of the CVAA. Indeed, although broadband Internet access previously was classified as an information service and thus not subject to section 255 on October 8, 2010, at the time the CVAA was enacted the Commission had initiated the 2010 NOI to consider whether to reclassify that service as a telecommunications service, which would, at that time, become subject to section 255 as a default matter. See, e.g., MediaFreedom Comments at 2; TIA Comments at 17. See also, e.g., Letter from COMPTEL, CCIA, Engine and IFBA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1-2 n.1 (filed Dec. 30, 2014) (noting the possibility of deferral). Some commenters contend that the Commission should forbear from all of Title II based on generalized arguments about the marketplace, such as past network investment or changes in performance or price per megabit in the recent past. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast Dec. 24, 2014 Ex Parte Letter at 4-6; NCTA Dec. 23, 2014 Ex Parte Letter at 19-20. We are not persuaded that those arguments justify a different outcome as to any of the disability access provisions or requirements at issue in this section, both for the reasons discussed previously, see supra Section V.B.1, and because commenters do not meaningfully explain how these arguments impact the section 10 analysis here, given that the need to protect disability access is not self-evidently linked to such marketplace considerations. Nothing in the record suggests that concerns about disability access are limited to broadband providers of a particular size, and we thus are not persuaded that a different conclusion in our forbearance analysis should be reached in the case of small broadband providers, for example. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; AireBeam Jan. 30, 2015 Ex Parte Letter at 2. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; NCTA Jan. 14, 2015 Ex Parte Letter at 3-4. See, e.g., supra Section III.F.4. We also note, for example, that this approach obviates the need to determine whether or to what extent these disability access provisions are more specific than section 706 of the 1996 Act in relevant respects, and thus could be seen as exclusively governing over the provisions of section 706 of the 1996 Act as to some set of disability access issues. Cf. Bloate v. U.S., 559 U.S. 196, 208 (2010) (“‘[g]eneral language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment’”) (citation omitted). The approach we take avoids this potential uncertainty, and we thus need not and do not address this question. See generally 47 U.S.C. § 610. For reasons similar to those discussed in the text above regarding other disability access provisions, we do not find it in the public interest to grant forbearance from section 710 of the Act, nor do we find such forbearance otherwise warranted under the section 10(a) criteria. 47 U.S.C. § 160(a). See, e.g., Request For Updated Information and Comment On Wireless Hearing Aid Compatibility Regulations, WT Docket Nos. 07-250, 10-254, Public Notice, 29 FCC Rcd 13969 (Wireless Telecom. Bureau, Consumer & Gov’t Affairs Bureau 2014) (discussing pending proceeding and seeking updated comment). We note that the Commission’s existing implementing rules do not immediately impose the Commission’s hearing aid compatibility requirements implementing section 710 of the Act on mobile wireless broadband providers by virtue of the classification decisions in this Order. We note, however, that certain obligations in the Commission’s rules implementing section 255 addressing interference with hearing technologies and the effective wireless coupling to hearing aids, see e.g., 47 C.F.R. §§ 6.3(a)(2)(viii), (ix); 6.5; 7.1(a)(2)(viii), (ix); 7.5, may be appropriately imposed on such providers by virtue of this Order, given our decision not to forbear from application of section 255 and its implementing regulations. See, e.g., Comcast Dec. 24, 2014 Ex Parte Letter at 25 n.107; NCTA Dec. 23, 2014 Ex Parte Letter at 21. See also, e.g., Letter from Marvin Ammori and Julie Samuels, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1 (filed Nov. 12, 2014) (“Title II forbearance should be implemented in such a way so as to encourage continued deployment and investment in networks by for example preserving pole attachment rights.”); Letter from Austin C. Schlick, Director, Communications Law, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 3-4 (filed Dec. 30, 2014) (Google Dec. 30, 2014 Ex Parte Letter). See, e.g., Implementation of Section 224 of the Act, A National Broadband Plan for Our Future, WC Docket No. 07-245, GN Docket No. 09-51, Report and Order and Order on Reconsideration, 26 FCC Rcd 5240, 5241-43, paras. 1-6 (2011) (2011 Pole Attachment Order). See also, e.g., Google Dec. 30, 2014 Ex Parte Letter at 3-4; Vonage Jan. 7, 2015 Ex Parte Letter at 1. See, e.g., Google Dec. 30, 2014 Ex Parte Letter at 3-4; Letter from Stephen E. Coran, Counsel for WISPA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 13-14 (filed Feb. 3, 2015). Some commenters contend that the Commission should forbear from all of Title II based on generalized arguments about the marketplace, such as past network investment or changes in performance or price per megabit in the recent past. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast Dec. 24, 2014 Ex Parte Letter at 4-6; NCTA Dec. 23, 2014 Ex Parte Letter at 19-20. We are not persuaded that those arguments justify a different outcome regarding section 224 and our associated rules, both for the reasons discussed previously, see supra Section V.B.1, and because commenters do not meaningfully explain how these arguments impact the section 10 analysis here, given that the need for regulated access to access to poles, ducts, conduit, and rights-of-way is not self-evidently linked to such marketplace considerations. Nor does the record reveal that concerns about adequate access to poles, ducts, conduit and rights-of-way are limited to broadband providers of a particular size, and we thus are not persuaded that these concerns would differ in the case of small broadband providers, for example. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; AireBeam Jan. 30, 2015 Ex Parte Letter at 2. 47 U.S.C. § 224(a)-(e). See 47 U.S.C. § 224(a)(1) (defining a utility as “any person who is a local exchange carrier or an electric, gas, water, steam, or other public utility, and who owns or controls poles, ducts, conduits, or rights-of-way used, in whole or in part, for any wire communications. . . . ”); see also 47 U.S.C. § 224(a)(5) (“For purposes of this section, the term ‘telecommunications carrier’ (as defined in section 153 of this title) does not include any incumbent local exchange carrier as defined in section 251(h) of this title.”). 47 U.S.C. § 160(a) (“[T]he Commission shall forbear from applying any regulation or any provision of this chapter to a telecommunications carrier or telecommunications service . . . .”). NCTA v. Gulf Power, 534 U.S. 327, 335-36 (2002). See, e.g., United States Telecom Association Petition For Forbearance Under 47 U.S.C. § 160(c) From Enforcement of Certain Legacy Telecommunications Regulations, WC Docket No. 12-61, Order, 28 FCC Rcd 2605, 2608, para. 3 (2013). See, e.g., Letter from Thomas Cohen and Edward A. Yorkgitis, Jr., Counsel for ACA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 2-3 (filed Jan. 20, 2015) (ACA Jan. 20, 2015 Ex Parte Letter); NCTA Dec. 23, 2014 Ex Parte Letter at 21 n.107. By virtue of the 1996 Act revisions, section 224 of the Act now sets forth two separate formulas to determine the maximum rates for pole attachments—one applies to pole attachments used by providers of telecommunications services (the telecom rate formula), and the other to pole attachments used “solely to provide cable service” (the cable rate formula). 47 U.S.C. §§ 224(d), (e). In recognition of these differences, Congress provided that rates under the telecom rate formula would be phased in over a five-year period, 47 U.S.C. § 224(e)(4), although the Commission has sought to minimize the disparity in rates. See generally 2011 Pole Attachment Order. To the extent that commenters express concern about possible rate changes following our reclassification of broadband Internet access under that statutory and regulatory framework, see ACA Jan. 20, 2015 Ex Parte Letter at 2-3; NCTA Dec. 23, 2014 Ex Parte Letter at 21 n.107, we are not persuaded on this record that forbearance would be a viable way to address them, for the reasons discussed below. Nor do such arguments persuade us not to reclassify broadband Internet access service, since in reclassifying that service we simply acknowledge the reality of how it is being offered today. See supra Section IV. 2011 Pole Attachment Order, 26 FCC Rcd at 5244, para. 8. Petition for Reconsideration or Clarification of the National Cable & Telecommunications Association, COMPTEL and tw telecom Inc., WC Docket No. 07-245, GN Docket No. 09-51 at 2 (filed June 8, 2011), http://apps.fcc.gov/ecfs/document/view?id=7021686399. Id. at 6. See, e.g., Google Dec. 30, 2014 Ex Parte Letter at 2-4. Letter from Samuel L. Feder, Counsel to Charter, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, 07-245 (filed Feb. 18, 2015). See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; NCTA Jan. 14, 2015 Ex Parte Letter at 3-4. See, e.g., supra Section III.F.4. We also note, for example, that this approach obviates the need to determine whether or to what extent section 224’s pole access provisions are more specific than section 706 of the 1996 Act in relevant respects, and thus could be seen as exclusively governing over the provisions of section 706 of the 1996 Act as to some set of pole access issues. Cf. Bloate v. U.S., 559 U.S. 196, 208 (2010) (“‘[g]eneral language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment’”) (citation omitted). The approach we take avoids this potential uncertainty, and we thus need not and do not address this question. See, e.g., NMR Comments at 25-26; Public Knowledge et al. Comments at 95; Rural Broadband Policy Group Comments at 8-9; Telecommunications for the Deaf and Hard of Hearing Comments at 13; Ammori Dec. 19, 2014 Ex Parte Letter at 5. 47 U.S.C. § 254(b)(2). 47 U.S.C. § 214(e). More specifically, an entity must be designated an eligible telecommunications carrier (ETC) under section 214(e) in order to get high-cost or Lifeline support, but the same constraint does not apply with respect to receipt of support under the E-rate or Rural Health Care programs. See 47 C.F.R. § 54.201(a). See, e.g., Modernizing the E-Rate Program for Schools and Libraries, WC Docket No. 13-184, Report and Order and Further Notice of Proposed Rulemaking, 29 FCC Rcd 8870, 8895-95, paras. 67-75 (2014); Rural Health Care Support Mechanism, WC Docket No. 02-60, Report and Order, 27 FCC Rcd 16678, 16700-01, 16704, 16715, paras. 49, 59, 79-80 (2012); USF/ICC Transformation Order, 26 FCC Rcd at 17683-91, paras. 60-73. Lifeline and Link Up Reform and Modernization; Lifeline and Linkup; Federal-State Joint Board on Universal Service; Advancing Broadband Availability Through Digital Literacy Training, WC Docket Nos. 12-23, 11-42, 03-109, CC Docket No. 96-45, Report and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 6656, 6673, para. 33 (2012). We note that commenters opposing the application of section 254 as a whole (or those provisions of section 254 from which we do not forbear below) or arguing that such action could be deferred pending future proceedings, appear to make only generalized, non-specific arguments, which we do not find sufficient to overcome our analysis above. See, e.g., TIA Comments at 17; ADTRAN Reply at 17-18. See also, e.g., Letter from COMPTEL, CCIA, Engine and IFBA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1-2 n.1 (filed Dec. 30, 2014) (noting the possibility of deferral). In addition, some commenters contend that the Commission should forbear from all of Title II based on generalized arguments about the marketplace, such as past network investment or changes in performance or price per megabit in the recent past. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 10-11; Comcast Dec. 24, 2014 Ex Parte Letter at 4-6; NCTA Dec. 23, 2014 Ex Parte Letter at 19-20. We are not persuaded that those arguments justify a different outcome regarding section 254, both for the reasons discussed previously, see supra Section V.B.1, and because commenters do not meaningfully explain how these arguments impact the section 10 analysis here, given that, even taken at face value, arguments based on such marketplace considerations do not purport to sufficiently address the policy concerns underlying section 254 and our universal service programs. Nothing in the record suggests that we should tailor our advancement of universal service policies to broadband providers of a particular size, and we thus are not persuaded that a different conclusion in our forbearance analysis should be reached in the case of small broadband providers, for example. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; AireBeam Jan. 30, 2015 Ex Parte Letter at 2. See, e.g., ACA Jan. 12, 2015 Ex Parte Letter at 11; NCTA Jan. 14, 2015 Ex Parte Letter at 3-4. See, e.g., supra Section III.F.4. See also, e.g., Connect America Fund et al., WC Docket No. 10-90 et al., Notice of Proposed Rulemaking, 26 FCC Rcd 4554, 4579, para. 67 (2011) (seeking comment on whether a universal service mechanism based exclusively on section 706 of the 1996 Act would raise issues under federal appropriations laws). We also note, for example, that this approach obviates the need to determine whether or to what extent these universal service provisions are more specific than section 706 of the 1996 Act in relevant respects, and thus could be seen as exclusively governing over the provisions of section 706 of the 1996 Act as to some set of universal issues. Cf. Bloate v. U.S., 559 U.S. 196, 208 (2010) (“‘[g]eneral language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment’”) (citation omitted). The approach we take avoids this potential uncertainty, and we thus need not and do not address this question. 47 U.S.C. § 254(d) (“Every telecommunications carrier that provides interstate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service.”). In implementing that statutory provision, the Commission concluded that federal contributions would be based on end-user telecommunications revenues. 47 C.F.R. § 54.706(c). Id.; 47 C.F.R. §§ 54.706-54.713. Universal Service Contribution Methodology; A National Broadband Plan For Our Future, WC Docket No. 06-122, GN Docket No. 09-51, Further Notice of Proposed Rulemaking, 27 FCC Rcd 5357 (2012). Moreover, the Commission has referred the question of how the Commission should modify the universal service contribution methodology to the Federal-State Joint Board on Universal Service (Joint Board) and requested a recommended decision by April 7, 2015. Federal State Joint Board on Universal Service; Universal Service Contribution Methodology; A National Broadband Plan For Our Future, WC Docket Nos. 96-45, 06-122, GN Docket No. 09-51, Order, 29 FCC Rcd 9784 (2014). We recognize that a short extension of that deadline for the Joint Board to make its recommendation to the Commission may be necessary in light of the action we take today. Our action in this Order thus will not “short circuit” the rulemaking concerning contributions issues as some commenters fear. NTCA Jan. 8, 2015 Ex Parte Letter at 2; see also, e.g., Letter from Andrew M. Brown, Counsel, Ad Hoc, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Jan. 30, 2015). As noted below, we do not forbear from the mandatory obligation of carriers that have chosen voluntarily to offer broadband as a Title II service to contribute to the federal universal service fund. Because we do nothing today to disturb the status quo with respect to current contributions obligations for the reasons explained above, and there will be a future opportunity to consider these issues in the contributions docket, we find that certain arguments raised in the record today are better taken up in that proceeding. See, e.g., Letter from Michael R. Romano, Senior Vice President—Policy, NTCA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Jan. 8, 2015) (NTCA Jan. 8, 2015 Ex Parte Letter); Letter from Michael R. Romano, Senior Vice President—Policy, NTCA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Jan. 13, 2015) (NTCA Jan. 13, 2015 Ex Parte Letter);COMPTEL Comments at 22-23. EarthLink, 462 F.3d at 9. While some commenters cite regulatory parity as a reason not to forbear from universal service contribution requirements, they do not explain how such concerns are implicated insofar as every provider’s broadband Internet access service is subject to this same forbearance from universal service contribution requirements. See, e.g., COMPTEL Comments at 22-23. In any event, those arguments are better addressed in the contributions rulemaking docket based on the full record developed therein. See supra para. REF _Ref413762659 \r \h 470. See also infra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. While a recent court case, seemingly in dicta, suggested that forbearance is informal rulemaking, the Commission has not expressly resolved that question. Compare Verizon v. FCC, 770 F.3d 961, 966-67 (D.C. Cir. 2014) with, e.g., Petition To Establish Procedural Requirements To Govern Proceedings For Forbearance Under Section 10 Of The Communications Act Of 1934, As Amended, WC Docket No. 07-267, Report and Order, 24 FCC Rcd 9543, 9554, para. 19 n.72, para. 20 (2009). We need not and do not address that broader question here because in this case the Commission has, in fact, proceeded via rulemaking. Because our action today precludes for the time being federal universal service contribution assessments on broadband Internet access services that are not currently assessed, we conclude that any state requirements to contribute to state universal service support mechanisms that might be imposed on such broadband Internet access services would be inconsistent with federal policy and therefore are preempted by section 254(f)—at least until such time that the Commission rules on whether to require federal universal service contributions by providers of broadband Internet access service. 47 U.S.C. § 254(f) (“A State may adopt regulations not inconsistent with the Commission's rules to preserve and advance universal service.”). We note that we are not aware of any current state contribution obligation for broadband Internet access service; our understanding is that broadband providers that voluntarily offer Internet transmission as a Title II service treat 100 percent of those revenues as interstate. We recognize that section 254 expressly contemplates that states will take action to preserve and advance universal service, and our actions in this regard will benefit from further deliberation.  See 47 U.S.C. §§ 254(b)(5), 254(f); Letter from James Ramsey, General Counsel, NARUC, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1-2 (filed Jan. 30, 2015). 47 U.S.C. § 254(g). 47 U.S.C. § 254(k). See infra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See infra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14927-29, paras. 139-44 (discussing the application of section 254(k) and related cost-allocation rules). For example, if a rate-of-return incumbent LEC (or other provider) voluntarily offers Internet transmission outside the forbearance framework adopted in this Order, it remains subject to the pre-existing Title II rights and obligations, including those from which we forbear in this Order. See, e.g., AARP Comments at 42 (“Other than Sections 201, 202, and 208, the Commission should forbear from other Title II provisions as it reclassifies. The reclassification will resolve the problems identified by the D.C. Circuit, and allow the Commission to reestablish certainty regarding edge providers’ ability to access their users and customers, and consumers’ ability to access the legal content and services of their choice.”); Consumer Watchdog Comments at 5 (“Because the Communications Act was approved before the existence of the Internet, some provisions of Title II are no longer applicable. The Commission can easily ‘forbear’ from implementing those provisions that are no longer relevant.”); Consumers Union Comments at 11 (“The Commission can narrowly target this framework to best suit the particular needs of broadband service using its forbearance power under Section 10 of the Communications Act. . . . [It thus can] maintain[] a light regulatory touch appropriate for broadband.”); EFF Comments at 16-17 (“[R]ules regarding such things as ‘tariff filing, price regulation, and other features of monopoly telephone regulation could be taken off the table from the start. Ultimately, the end result would most likely be ‘Title II light,’ not the burdensome regulatory structure carriers decry.’”); WGAW Comments at 31 (“In the case of broadband Internet access providers, the Commission need not impose the whole gamut of Title II authority. Instead, it can employ a light regulatory touch by tailoring rules under Title II to the specific characteristics of Internet distribution.”); Sidecar Technologies Reply at 6 (“[T]he FCC should not assert outdated, unneeded authorities found in Title II and should immediately forbear from much of Title II of the Act. Specifically, we encourage the FCC not to forbear from sections 201, 202, and 208 . . . . ”); Vonage Reply at 32 (“Rather than debate each individual section of Title II in its forbearance analysis, the Commission could limit its Title II authority to those provisions necessary to adopt and enforce Open Internet rules and forbear from applying all other provisions and rules under Title II that do not bear on the Open Internet rules originally codified in 2010”); Letter from Markham C. Erickson, Counsel for Netflix, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 1-2 (filed Dec. 5, 2014) (“To generate open Internet rules, the Commission can and should forbear from the vast majority of Title II provisions.”); Internet Association Jan. 6, 2015 Ex Parte Letter at 2 (“Most of the provisions of Title II, including regulating retail rates, do not appear necessary to further any of these [section 10] goals in the Internet context.”); Letter from Barbara van Schewick, Professor of Law and (by courtesy) Electrical Engineering, Stanford Law School, et al., to Hon. Tom Wheeler, Chairman, FCC, et al., GN Docket No. 14-28, Attach. at 7 (filed Feb. 2, 2015) (“[W]e would expect and encourage the FCC to regulate with a light touch under Title II through application of its forbearance authority.”); Letter from Hon. Catherine Sandoval, Commissioner, California Public Utilities Commission, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. 4 at 17 (filed Feb. 4, 2015) (“[R]ecommend[ing] that the FCC adopt rules to protect and promote the Open Internet consistent with both Section 706 of the Telecommunications Act and Title II of the Communications Act with forbearance and a light regulatory touch.”). See, e.g., i2 Coalition Comments at 40 (asserting simply that “references to §§ 201, 202, 203, 204, 205, 206, 208, 209, 211, 215, 218, 219, 220, 251 and 252 should be added” to the authority provision of the codified open Internet rules); Tumblr Reply at 9-10 (“We propose, with significant deference to the FCC’s expertise in telecommunications law, that the FCC could arguably forbear from all provisions of Title II except for the following fifteen sections: Sections 201, 202, and 208 (guaranteeing net neutrality), 206, 207, 209, and 216 (holding broadband providers accountable for violations), 222 (protecting privacy), 251(a) and 256 (promoting interconnection), and 214(e), 225, 254, 255, and 257 (promoting access to the network). . . . [A] small and limited amount of government regulation is necessary to promote and protect a competitive and lightly regulated marketplace.”); Letter from John M. Simpson, Privacy Project Director, Consumer Watchdog, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2 (filed Jan. 26, 2015) (listing a number of statutory provisions and simply noting the title of the provision). Rural Broadband Policy Group Comments at 8-9. See, e.g., CTIA Comments at 47 (citing concerns about “prescriptive rate regulation, tariffing requirements, depreciation mandates, expansive entry and exit regulation, resale and interconnection obligations, a host of reporting requirements”); CenturyLink Comments at 37-40 (identifying various provisions that it contends only make sense as applied to voice service); Charter Comments at 13 (arguing that application of Title II could “creat[e] a prolonged period of legal uncertainty”); Technology Policy Institute Comments at 30 (application of Title II “would signify a sharp departure from the status quo”); WISPA Reply at 23-24 (arguing that particular requirements would be burdensome and that application of Title II potentially could lead to “prolonged uncertainty”). We are not persuaded by arguments that a tailored regulatory approach like that adopted here inherently would be inferior to the adoption of a more regulatory approach in this Order. See, e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 22-29. Rather, we base our decision to adopt such a tailored approach based both on our own analysis of the overall record regarding investment incentives (which can involve multifaceted considerations), see supra Section IV.C.5, and the wisdom we see in exercising our discretion to proceed incrementally, as discussed in greater detail below. See, e.g., Massachusetts v. EPA, 549 U.S. 497, 524 (2007) (“Agencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. . . . They instead whittle away at them over time, refining their preferred approach as circumstances change and as they develop a more nuanced understanding of how best to proceed.”) (citations omitted). While we believe that the tailored regulatory framework we adopt today strikes the right balance, we note that the D.C. Circuit has recognized the Commission’s authority to revisit its decision should that prove not to be the case. EarthLink, 462 F.3d at 12. See also id. (“‘[A]n agency’s predictive judgments about areas that are within the agency’s field of discretion and expertise are entitled to particularly deferential review, as long as they are reasonable,’” but the agency necessarily must have the ability to “reassess[] the situation if its predictions are not borne out.”) (citations omitted). See, e.g., FCC v. Fox Television Stations, 556 U.S. 502, 522 (2009) (“Nothing prohibits federal agencies from moving in an incremental manner.”); Nat’l Ass’n of Broadcasters v. FCC, 740 F.2d 1190, 1207 (D.C. Cir. 1984) (“In classifying economic activity, agencies . . . need not deal in one fell swoop with the entire breadth of a novel development; instead, ‘reform may take place one step at a time, addressing itself to the phase of the problem which seems most acute to the [regulatory] mind.’”) (citation omitted). EarthLink, 462 F.3d at 9. These are discussed in greater detail in the context of the specific provisions or regulations below. We thus reject claims to the contrary. See generally Pai Dissent at 57-64; O’Rielly Dissent at 14. 47 U.S.C. § 160(a)(1). See, e.g., Cellco Partnership v. FCC, 357 F.3d 88 (D.C. Cir. 2004) (in a decision addressing section 11 of the Act, recognizing that the term “necessary” is ambiguous); Cellular Telecomms. & Internet Ass’n v. FCC, 330 F.3d 502, 512-13 (D.C. Cir. 2003) (under Chevron step two, deferring to the Commission’s reasonable interpretation of the term “necessary” in section 10(a)(2)); Capital Network System, Inc., v. FCC, 28 F.3d 201, 204 (D.C. Cir. 1994) (with respect to section 201(b), holding that “[b]ecause ‘just,’ ‘unjust,’ ‘reasonable,’ and ‘unreasonable’ are ambiguous statutory terms, this court owes substantial deference to the interpretation the Commission accords them”). While the specific balancing at issue in EarthLink v. FCC, 462 F.3d at 8-9, may have involved trade-offs regarding competition, we nonetheless believe the view expressed in that decision accords with our conclusion here that we permissibly can interpret and apply all the section 10(a) criteria to also reflect the competing policy concerns here. As the D.C. Circuit also has observed, within the statutory framework that Congress established, the Commission “possesses significant, albeit not unfettered, authority and discretion to settle on the best regulatory or deregulatory approach to broadband.” Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009). Given the characteristics specific to broadband Internet access service that we find on the record here—including, among other things, protections from the newly-adopted open Internet rules and the overlay of section 706—we limit our forbearance from the relevant provisions and regulations to the context of broadband Internet access service. Outside that context, they will continue to apply as they have previously, unaffected by this Order. We thus reject claims that the actions or analysis here effectively treat forborne-from provisions or regulations as surplusage or that we are somehow ignoring significant portions of the Act. See Pai Dissent at 61, 64; O’Rielly Dissent at 14-15. See supra Section V.A. EarthLink v. FCC, 462 F.3d at 8-9 (alteration in original). 2015 Broadband Progress Report at para. 12. See infra Section V.C.2.a. See supra Section III.C.I; see also supra Section III.C.3. See generally supra Sections III.C.2, III.D.2, III.E. As explained above, we conclude that while competition can be a sufficient basis to grant forbearance, it is not inherently necessary in order to find section 10 satisfied. See supra Section V.A. Given our assessment of the advantages of the regulatory framework applied under this Order, we also reject suggestions that, where the Commission does not rely on sufficient competition to justify forbearance, alternative ex ante regulations would always be necessary to ensure just and reasonable conduct and otherwise provide a basis for finding the section 10(a) criteria to be met. See Pai Dissent at 57-65. Further, while the Final Regulatory Flexibility Analysis estimates a large possible universe of broadband Internet access service providers, we do not find a basis to conclude that they all—or a sufficiently significant number of them—are likely to be simultaneously subject to complaints to render the case-by-case approach unworkable or inferior to additional bright line rules, and thus reject concerns to the contrary. See Pai Dissent at 63. 47 U.S.C. § 160(a)(2). 47 U.S.C. § 160(a)(3). 47 U.S.C. § 203. See supra para. REF _Ref412542985 \r \h 493. See also, e.g., CDT Feb. 4, 2015 Ex Parte Letter at 3 (“There is no need to apply the tariffing requirements in Sections 203 and 204 to broadband service providers . . . .”). See, e.g., Vonage Reply at 32 (“Other than the lack of meaningful Open Internet protections, the status quo for regulating the provision of broadband internet access remains suitable and need not be disturbed.”); AOL July 21, 2014 Ex Parte Letter at 2 (“The FCC would have the authority to forbear totally from Title II rules, so long as the continued existence of effective Section 706 rules makes Title II unnecessary to protect consumers.”). See supra Section III. See, e.g., supra Sections III.B.2.a, III.C.2, III.D.2. See supra Section III.E. See also supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496. See generally Wireless Broadband Classification Order, 22 FCC Rcd 5901; BPL-Enabled Broadband Order, 21 FCC Rcd 13281; Wireline Broadband Classification Order, 20 FCC Rcd 14853; Cable Modem Declaratory Ruling, 17 FCC Rcd 4798. See supra Section III.B.2. See also, e.g., CDT Comments at 15 (“Broadband providers have not been subject to the provisions of Title II, so there is ample real world experience with how the broadband marketplace functions without, for example, subscriber price regulation and tariff-filing requirements. The Commission could reasonably conclude that actual experience demonstrates that the enforcement of such requirements against broadband providers is ‘not necessary’ to ensure reasonable charges and practices or to protect consumers.”). In addition to the analysis of sections 10(a)(1) and (a)(2) factors above, see also supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496. EarthLink v. FCC, 462 F.3d at 8-9. Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009) (Ad Hoc). See supra Section III.B.2. See supra Section III.B.1. These same section 10(b) findings likewise apply in the case of our other section 10(a)(3) public interest evaluations with respect to broadband Internet access service, and should be understood as incorporated there. See, e.g., Letter from Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, Attach. 2, Phoenix Center Bulletin No. 36, Tariffing Internet Termination: Pricing Implications of Classifying Broadband as Title II Telecommunications Service at 14-16 (filed Oct. 31, 2014) (Phoenix Center Oct. 31, 2014 Ex Parte Letter). See supra Section V.A. Wireless Forbearance Order, 9 FCC Rcd at 1478-79, para. 175. See supra para. REF _Ref413762741 \r \h 500. Indeed, even when forbearing from section 203 in the CMRS context, the Commission not only relied in part on the presence of competition, but also that continued application of sections 201, 202, and 208 “provide[s] an important protection in the event there is a market failure,” and “tariffing imposes administrative costs and can themselves be a barrier to competition in some circumstances.” Wireless Forbearance Order, 9 FCC Rcd at 1478-79, para. 175. Those are in accord with key elements of our conclusions here. Public Knowledge Comments at 85. See id. at 94; see also, e.g., Ammori Dec. 19, 2014 Ex Parte Letter at 7 (“[Tariffing] is not needed to ensure nondiscrimination or reasonable practices as the open Internet rules and complaints (regarding edge providers) and limited competition (regarding consumers) should cover it.”). See, e.g., 2010 Open Internet Order, 25 FCC Rcd at 17936-37, para. 53; supra Section III.C.3. NTCA Comments at 13 n.29 (citing Wireline Broadband Classification Order, 20 FCC Rcd at 14900-03, paras. 89-95); Letter from Michael R. Romano, Senior Vice President-Policy, NTCA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 2-3 (filed Nov. 19, 2014) (NTCA Nov. 19, 2014 Ex Parte Letter). See supra para. REF _Ref413762800 \r \h 460. Wireline Broadband Classification Order, 20 FCC Rcd at 14900-03, paras. 89-95. Cf. NTCA Nov. 19, 2014 Ex Parte Letter at 3 n.3 (arguing for an approach that would enable “RLECs [to] continue to have the option of offering broadband transmission services under tariff, as they do today”). See, e.g., Wireless Forbearance Order, 9 FCC Rcd at 1479-80, paras. 178-79; Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Broadband Services, WC Docket No. 06-125, Memorandum Opinion and Order, 23 FCC Rcd 12260, 12291-92, para. 64 (2008) (Qwest Enterprise Broadband Forbearance Order); Petition of the Embarq Local Operating Companies for Forbearance Under 47 U.S.C. § 160(c) from Application of Computer Inquiry & Certain Title II Common-Carriage Requirements et al., WC Docket No. 06-147, Memorandum Opinion and Order, 22 FCC Rcd 19478, 19507-08, para. 59 (2007), aff’d sub nom. Ad Hoc Telecomms. Users Committee v. FCC, 572 F.3d 903 (D.C. Cir. 2009) (Ad Hoc v. FCC); Petition of AT&T Inc. for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Its Broadband Services et al., WC Docket No. 06-125, Memorandum Opinion and Order, 22 FCC Rcd 18705 18737-38, para. 67 (2007) (AT&T Enterprise Broadband Forbearance Order), aff’d sub nom. Ad Hoc v. FCC, 572 F.3d 903). See, e.g., Public Knowledge Comments at 92-94. 47 U.S.C. § 204. Public Knowledge Comments at 92-94. 47 U.S.C. § 205. Wireless Forbearance Order, 9 FCC Rcd at 1479, para. 176. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. Public Knowledge Comments at 93. Although Public Knowledge et al. cite marketplace differences between CMRS and broadband Internet access service, they do not explain why those differences necessitate a narrower forbearance decision in this context—particularly since we do not rely on the state of competition as a rationale for our forbearance decision—whether as to section 205, or as to the other provisions discussed there (sections 204, 211, 212). Id. at 93-94. 47 U.S.C. § 212. See Wireless Forbearance Order, 9 FCC Rcd at 1485, paras. 195–97. See id. at 1485, paras. 197 n.389. The Commission noted that section 221 provided protections against interlocking directorates, but section 221(a) was repealed in the Telecommunications Act of 1996. This section gave the Commission the power to review proposed consolidations and mergers of telephone companies. While section 221(a) allowed the Commission to bolster its analysis to forbear from section 212 in the Wireless Forbearance Order, the protections against interlocking directorates provided by section 201(b) and 15 U.S.C. § 19 provide sufficient protection to forbear from section 212 for broadband Internet access services. See Wireless Forbearance Order, 9 FCC Rcd at 1485, paras. 197 n.390 (citing the Clayton Act’s protections governing interlocking directorates). See generally 1998 Biennial Regulatory Review—Repeal of Part 62 of the Commission’s Rules, CC Docket No. 98-195, Report and Order, 14 FCC Rcd 16530 (1999). Public Knowledge asserts that forbearance will not promote competition, Public Knowledge Comments at 93, but that does not resolve the section 10(a) analysis. See supra Section V.A (discussing the role of competition in the section 10(a) forbearance analysis). See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. Public Knowledge Comments at 91-92 (discussing 47 U.S.C. §§ 211, 213, 215, 218-20). Specifically, section 211 allows the Commission to require common carriers to file contracts section; 213 authorizes the Commission to make a valuation of all or of any part of the property owned or used by any carrier; section 215 gives the Commission the authority to examine carrier activities and transactions likely to limit the carrier’s ability to render adequate service to the public, or to affect rates; section 218 authorizes the Commission to inquire into the management of the business of the carrier; section 219, inter alia, authorizes the Commission to require annual financial and other reports from carriers; and section 220 gives the Commission the discretion to prescribe the forms of accounts, records, and memoranda to be kept by carriers and also includes depreciation prescription provisions. 47 U.S.C. §§ 211, 213, 215, 218-20. We note that certain of these requirements might not, by their terms, apply to the broadband subscriber Internet service. For example, aspects of section 215 and 220 appear specific to telephone service. Because we find forbearance warranted under the section 10 criteria, we need not resolve the possible application of these provisions more precisely. See, e.g., Modernizing the Form 477 Data Program, WC Docket No. 11-10, Report and Order, 28 FCC Rcd 9887, 9925, para. 88 (2013) (citing as authority for the Form 477 data collection, among other things, sections 201 and 403 of the Act and section 706 of the 1996 Act); Special Access for Price Cap Local Exchange Carriers; AT&T Corporation Petition for Rulemaking to Reform Regulation of Incumbent Local Exchange Carrier Rates for Interstate Special Access Services, WC Docket No. 05-25, RM-10593, Report and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 16318, 16338-39, para. 50 (2012) (citing as authority for the special access data collection, among other things, sections 201 and 202 of the Act and section 706 of the 1996 Act). Wireless Forbearance Order, 9 FCC Rcd at 1484-85, paras. 193-94. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. Unless otherwise indicated, for convenience, this item uses “discontinuance,” to also include reduction or impairment of service under section 214. In pertinent part, section 214 requires that certain carriers submit applications to the Commission for the discontinuance, reduction, or impairment of existing services and associated procedural measures. See 47 U.S.C. § 214(a)-(c). See, e.g., COMPTEL Comments at 22-23 (“Retaining the provisions in [section 214(a)] that require Commission approval prior to discontinuance of service would afford protections for consumers threatened with the loss of Internet access service”); Public Knowledge Comments at 90-91 (“The Commission should not eliminate its jurisdiction over termination of operations in markets where a single provider may be the only point of access to the internet. As recognized by Congress, the Commission’s oversight here is necessary to protect consumers from service interruption and termination. Consumers, businesses, public safety entities and government agencies rely on telecommunications services for an ever-increasing number of critical functions.”); Rural Broadband Policy Group Comments at 8-9 (encouraging the Commission to “exempt from forbearance . . . Section 214 . . . ensur[ing] that an Internet Service Provider does not discontinue services to rural areas without first obtaining approval from the Commission, a requirement for Universal Service Fund recipients. This is of grave importance to rural communities since USF plays a major role in ensuring telecommunications services reach rural areas.”). See, e.g., Connect America Fund et al., WC Docket No. 10-90 et al., Report and Order, FCC 14-190, paras. 27-28 (rel. Dec. 18, 2014). See, e.g., id., FCC 14-190, paras. 13-29; Modernizing the E-rate Program for Schools and Libraries; Connect America Fund, WC Docket Nos. 13-184, 10-90, Second Report and Order and Order on Reconsideration, FCC 14-189, paras. 60-76 (rel. Dec. 19, 2014). See, e.g., Wireless Forbearance Order, 9 FCC Rcd at 1481, para. 182. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. The overlay of section 706 of the 1996 Act here, including how it informs our decision to proceed incrementally, distinguishes this from the Commission’s prior evaluation of relief from Title II for CMRS. See infra Section V.D. Consequently, although we look to the precedent from the CMRS context—as we do other forbearance precedent—to the extent that it is instructive, the mere fact that we declined to forbear from applying a provision in the CMRS context does not demonstrate that we should continue to apply it here as some suggest. See, e.g., Letter from Matthew F. Wood, Policy Director, Free Press, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 n.1 (filed Nov. 21, 2014) (Free Press Nov. 21, 2014 Ex Parte Letter) (citing Free Press Comments, GN Docket No. 10-127, at 72 (filed July 15, 2010) (citing prior decisions in the CMRS voice service context as a reason to reach the same conclusions in the broadband context regarding the application of sections 214, 251, and 256 of the Act)). See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See, e.g., Free Press Nov. 21, 2014 Ex Parte Letter at 1 n.3 (filed Nov. 21, 2014) (citing Free Press Comments, GN Docket No. 10-127, at 70-71 (filed July 15, 2010) (advocating that the Commission not forbear from applying section 214 insofar as it requires Commission approval of transfers of control)). Id. For example, the Commission reviews all applications for transfer or assignment of a wireless license, including licenses used to provide broadband services, pursuant to Section 310(d) of the Act to determine whether the applicants have demonstrated that the proposed transfer or assignment will serve the public interest, convenience, and necessity. As this review is not triggered by reclassification, nothing in this Order limits or otherwise affects our review under Section 310. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. 47 U.S.C. § 214(d). See Free Press Nov. 21, 2014 Ex Parte Letter at 1 n.3 (citing Free Press Comments, GN Docket No. 10-127at 71-72 (filed July 15, 2010) (advocating that he Commission not forbear from applying section 214(d))). RCA Communications, Memorandum Opinion and Order, 44 FCC 613, 618 (1956). Thus, even if our open Internet rules do not directly address this issue, by helping promote the virtuous cycle more generally, they also will help ensure that broadband providers have marketplace incentives to behave in this manner. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. Although commenters appear to use the term “interconnection” to mean a potentially wide range of different things, for purposes of this section we use that term solely in the manner it is used and defined for purpose of these provisions. 47 U.S.C. §§ 251, 252, 256. See also 47 C.F.R. § 51.5 (defining “interconnection” for purposes of the Commission’s implementation of the section 251/252 framework). As discussed above, however, we do not forbear from applying section 251(a)(2) with respect to broadband Internet access service, and that provision thus is outside the scope of the discussion here. See supra Section V.C.1. See, e.g., COMPTEL Comments at 22-23; Mozilla Comments at 13; Public Knowledge Comments at 85, 88-90; Rural Broadband Policy Group Comments at 8-9; Tumblr Reply at 9-10; Letter from Blake E. Reid, Counsel for TDI, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 3 (filed Nov. 17, 2014); Full Service Network/TrueConnect Feb. 3, 2015 Ex Parte Letter at 17. Section 251 of the Act sets forth interconnection obligations (along with other requirements designed to promote competition). 47 U.S.C. § 251. Section 252 establishes certain procedures for negotiating, arbitrating, and approving interconnection agreements implementing the requirements of section 251. 47 U.S.C. § 252. As a result of the forbearance granted from section 251 below, section 252 thus is inapplicable, insofar it is simply a tool for implementing the section 251 obligations. Although we do not forbear from applying section 251(a)(2) with respect to broadband Internet access service, we note that the Commission previously has held that the procedures of section 252 are not applicable in matters simply involving section 251(a). See, e.g., CoreComm Communications, Inc., and Z-Tel Communications, Inc. v. SBC Communications, Inc. et al., File No. EB-01-MD-017, Order on Reconsideration, 19 FCC Rcd 8447, 8454-55, para. 18 (2004) (vacated on other grounds) (asserting that “[n]either the general interconnection obligation of section 251(a) nor the interconnection obligation arising under section 332 is implemented through the negotiation and arbitration scheme of section 252”); Qwest Communications International Inc. Petition for Declaratory Ruling on the Scope of the Duty to File and Obtain Prior Approval of Negotiated Contractual Arrangements under Section 252(a)(1), WC Docket No. 02-89, Memorandum Opinion and Order, 17 FCC Rcd 19337, 19341, n.26 (2002) (stating that “only those agreements that contain an ongoing obligation relating to section 251(b) or (c) must be filed” with the state commission pursuant to section 252(a)(1)”). To the extent that the Commission nonetheless could be seen as newly applying section 252 with respect to broadband Internet access service as a result of our classification decision here, we find the section 10 criteria met to grant forbearance from that provision for the same reasons discussed with respect to section 251 in the text above. Section 256 promotes coordinated public telecommunications network planning and interconnectivity and allows Commission oversight of such activities. 47 U.S.C. § 256. 47 U.S.C. § 201; supra Sections III.C.2, III.D.2. Indeed, one commenter, while asking that the Commission decline to forbear from sections 251(a) and 256, concedes that other provisions might meet the Commission’s needs in this context. Mozilla Comments at 13 (advocating that “the Commission should strongly consider retaining section 251(a) and 256, in order to provide an unassailable legal basis for oversight of interconnection and peering practices, even though these sections may not be strictly necessary so long as sections 201 and 202 are effective”). See also, e.g., CDT Feb. 4, 2015 Ex Parte Letter at 5 (“The propriety of forbearance from interconnection obligations in Section 251 turns on whether the Commission can rely on Section 201 and 202 to ensure that interconnection agreements and practices are consistent with an open Internet.”). See 47 U.S.C. § 201; Access Charge Reform, Reform of Access Charges Imposed by Competitive Local Exchange Carriers, CC Docket No. 96-262, Eighth Report and Order and Fifth Order on Reconsideration, 19 FCC Rcd 9108, 9137-38, paras. 59-61 (2004); People’s Telephone Cooperative v. Southwestern Bell Tel. Co., et al., Memorandum Opinion and Order, 62 FCC 2d 113, 116, para. 7 (1976); Bell System Tariff Offerings of Local Distribution Facilities For Use By Other Common Carriers; and Letter of Chief, Common Carrier Bureau, Dated October 19, 1973, to Laurence E. Harris, Vice President, MCI Telecommunications Corp., Decision, 46 FCC 2d 413, 418-19, paras. 7-8 (1974); see also supra Section III.D.2. Our finding of significant overlap between the authority retained by the Commission under section 201 and the interconnection requirements of section 251 is reinforced by Congress’ inclusion of section 251(g) and (i), which, notwithstanding the requirements of section 251, preserve the Commission’s pre-1996 Act interconnection requirements as well as its ongoing authority under section 201. See 47 U.S.C. § 251(g), (i). 47 U.S.C. 251(c)(2); see Implementation of the Local Competition Provisions in the Telecommunications Act of 1996; Interconnection between Local Exchange Carriers and Commercial Mobile Radio Service Providers, CC Docket Nos. 96-98, 95-185, First Report and Order, 11 FCC Rcd 15499, 15594, para. 184 (1996) (Local Competition Order) (finding that section 251(c)(2) requires that an incumbent must provide interconnection for purposes of transmitting and routing telephone exchange traffic or exchange access traffic or both). Because we forbear from this requirement, we need not, and do not, resolve whether broadband Internet access service could constitute “telephone exchange service” or “exchange access,” nor whether any particular non-broadband provider seeking to interconnect and exchange traffic with the broadband provider is a carrier. This is particularly true as to section 256, which does not provide the Commission any additional authority that it does not otherwise have. 47 U.S.C. § 256(c); Comcast v. FCC, 600 F.3d 642, 659 (D.C. Cir. 2010). See, e.g., supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. Free Press Nov. 21, 2014 Ex Parte Letter at 1 n.1 (citing Free Press Comments, GN Docket No. 10-127, at 72-74 (filed July 15, 2010)); Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 17-19; Letter from Earl Comstock, Counsel for Full Service Network and TruConnect, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1-5 (filed Feb. 10, 2015) (summarizing meeting with Commissioner Clyburn’s office). 47 U.S.C. §§ 251(b)(1) (resale); 251(b)(4) (access to rights-of-way); 251(b)(5) (reciprocal compensation). In addition, sections 251(b)(2) and (b)(3) deal with telephone numbering issues, but commenters do not explain how the use of telephone numbers bears on the provision of broadband Internet access service. 47 U.S.C. §§ 251(b)(2), (b)(3). 47 U.S.C. §§ 251(c)(1) (duty to negotiate in good faith); 251(c)(3) (unbundling); 251(c)(4) (resale); 251(c)(5) (notice of network changes); 251(c)(6) (collocation). We note that the Commission has determined that section 251(c) has been fully implemented throughout the United States. See Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415, 19440–42, paras. 53–56 (2005) (Qwest Omaha Forbearance Order), aff’d, Qwest Corp. v. FCC, 482 F.3d 471 (D.C. Cir. 2007). We reject claims that section 251(c) has not been fully implemented “[b]ecause the Commission has never applied section 251(c) to the provision of broadband Internet access service” as at odds with that precedent. See, e.g., Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 28-29. The Commission has adopted rules implementing section 251(c), and the fact that the manner in which those rules apply might vary with the classification of a particular service (or changes in that classification) does not alter that fact. See, e.g., Qwest Corp. v. FCC, 482 F.3d at 477 (affirming the Commission’s interpretation “that § 251(c) had been fully implemented ‘because the Commission has issued rules implementing section 251(c) and those rules have gone into effect’”) (citation omitted). Therefore, the prohibition in section 10(d) of the Act against forbearing from section 251(c) prior to such a determination is not applicable. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See, e.g., Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers; Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147, Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd 16978, 17141-54, paras. 272-97 (2003) (Triennial Review Order), aff'd in part, remanded in part, vacated in part, United States Telecom Association v. FCC, 359 F.3d 554, 564-93 (D.C. Cir. 2004) (USTA II) (considering the objectives of section 706, the Commission imposed only limited unbundling obligations on incumbent LECs’ mass market next-generation broadband loop architectures); Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers; Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147, Order on Reconsideration, 19 FCC Rcd 15856, 15859-61, paras. 7-9 (2004) (MDU Reconsideration Order) (determining that the same section 706 considerations justified extending the Triennial Review Order’s FTTH unbundling relief to encompass FTTH loops serving predominantly residential multiple dwelling units (MDUs)); Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers; Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147, Order on Reconsideration, 19 FCC Rcd 20293, 20297-303 paras. 9-19 (2004) (FTTC Reconsideration Order) (finding that the FTTH analysis applied to FTTC loops, as well, and granting the same unbundling relief to FTTC as applied to FTTH); Petition for Forbearance of the Verizon Telephone Companies Pursuant to 47 U.S.C. § 160(c); SBC Communications Inc.’s Petition for Forbearance Under 47 U.S.C. § 160(c); Qwest Communications International Inc. Petition for Forbearance Under 47 U.S.C. § 160(c); BellSouth Telecommunications, Inc. Petition for Forbearance Under 47 U.S.C. § 160(c), WC Docket Nos. 01-338, 03-235, 03-260, 04-48, Memorandum Opinion and Order, 19 FCC Rcd 21496, 21512, para. 34 (2004) (Broadband 271 Forbearance Order) (analyzing the public interest of relieving BOCs of unbundling obligations under section 271 under the umbrella of section 706); Wireline Broadband Classification Order, 20 FCC Rcd at 14894-98, paras. 77-85 (stating that in assessing the alternate regulatory frameworks for wireline broadband Internet access services, the Commission must ensure that the balance struck provides adequate incentives for infrastructure investment, in accordance with section 706’s Congressional objectives). Our overall analysis of the record on investment incentives—including evidence and arguments regarding more extensive or less extensive regulation than the tailored approach adopted here—is discussed in greater detail above. See supra Section IV.C.5. As discussed below, see infra Section V.D., we evaluate forbearance assuming arguendo that provisions apply. See, e.g., Public Knowledge Comments at 85. We evaluate forbearance from section 258 by assuming arguendo that it applies. See infra Section V.D. Because we conclude that forbearance is warranted even with that assumption, we need not, and do not, decide whether broadband Internet access service is “telephone exchange service” or “telephone toll service” within the meaning of section 258(a). See, e.g., Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996; Policies and Rules Concerning Unauthorized Changes of Consumers Long Distance Carriers, CC Docket No. 94-129, Second Report and Order and Further Notice Of Proposed Rulemaking, 14 FCC Rcd 1508, 1517-18, para. 12 (1998); Implementation of the Subscriber Carrier Selection Changes Provisions of the Telecommunications Act of 1996; Policies and Rules Concerning Unauthorized Changes of Consumers Long Distance Carriers, CC Docket No. 94-129, Further Notice Of Proposed Rulemaking and Memorandum Opinion and Order on Reconsideration, 12 FCC Rcd 10674, 10678, para. 4 (1997). See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See supra para. REF _Ref412543369 \r \h 494. 47 U.S.C. §§ 271-72, 274-75. The Commission has determined that section 271 has been fully implemented throughout the United States. Petition for Forbearance of the Verizon Telephone Companies Pursuant to 47 U.S.C. § 160(c), WC Docket No. 01-338, Memorandum Opinion and Order, 19 FCC Rcd 21496, 21503,para. 15 (2004) (Section 271 Broadband Forbearance Order), aff'd sub nom. EarthLink, Inc. v. FCC, 462 F.3d 1.(D.C. Cir. 2006). Therefore, the prohibition in section 10(d) of the Act against forbearing from section 271 prior to such a determination is not applicable. 47 U.S.C. § 273. 47 U.S.C. § 276(a). See, e.g., 47 U.S.C. § 271(d)(1)-(4) (setting forth procedural requirements regarding BOC applications for authorization to provide in-region, interLATA services); 47 U.S.C. § 274(g)(2) (specifying that the provisions of section 274 shall not apply to conduct occurring more than four years after the enactment of the 1996 Act); 47 U.S.C. § 274(a) (prohibiting BOC entry into the provision of alarm monitoring services for five years from the enactment of the 1996 Act); compare 47 U.S.C. § 272(f) (providing for the sunset of the provisions of section 272, other than section 272(e), absent a Commission rule or order extending the period in which those provisions remain in effect) with Sunset of the BOC Separate Affiliate and Related Requirements; 2000 Biennial Regulatory Review Separate Affiliate Requirements of Section 64.1903 of the Commission's Rules; Petition of AT&T Inc. for Forbearance Under 47 U.S.C. § 160(c) with Regard to Certain Dominant Carrier Regulations for In-Region, Interexchange Services, WC Docket Nos. 02-112, 06-120, CC Docket No. 00-175, Report and Order and Memorandum Opinion and Order, 22 FCC Rcd 16440, 16479-83 , paras. 79–86 (2007) (Section 272 Sunset Order) (declining to extend the section 272 safeguards with regard to interLATA telecommunications services); Request for Extension of the Sunset Date of the Structural, Nondiscrimination, and Other Behavioral Safeguards Governing Bell Operating Company Provision of In-Region, InterLATA Information Services, CC Docket No. 96-149, Order, 15 FCC Rcd 3267 (2000) (Information Services Sunset Order) (denying request to extend the section 272 safeguards with regard to interLATA information services). See, e.g., 47 U.S.C. § 273(c) (requiring each BOC to “maintain and file with the Commission full and complete information with respect to the protocols and technical requirements for connection with and use of its telephone exchange service facilities”); 47 U.S.C. § 273(d)(3) (setting forth procedures for establishing industry-wide standards for telecommunications equipment and CPE). See also supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. Consistent with our general approach to forbearance here, which seeks to address new requirements that could be triggered by our classification of broadband Internet access service, we do not forbear with respect to provisions to the extent that they already applied prior to this Order. For example, section 271(c) establishes substantive standards that a BOC was required to meet in order to obtain authorization to provide interLATA services in an in-region state, and which it and must continue to meet in order to retain that authorization. 47 U.S.C. § 271(c); see 47 U.S.C. § 271(d)(6) (authorizing various Commission actions in the event the Commission determines that a BOC has ceased to meet the conditions for authorization to provide in-region, interLATA services). In addition, section 271(c)(2)(B)(iii), requires that a BOC provide nondiscriminatory access to poles, ducts, conduits, and rights-of-way in accordance with the requirements of section 224 of the Act, does not depend upon the classification of BOCs’ broadband Internet access service. In combination with section 271(d)(6), this provision provides the Commission with an additional mechanism to enforce section 224 against the BOCs. We also do not forbear from section 271(d)(6) to the extent that it provides for enforcement of the provisions we do not forbear from here. In addition, while the BOC-specific provisions of section 276 theoretically could be newly implicated insofar as the reclassification of broadband Internet access service might result in some entities newly being treated as a BOC, the bulk of section 276 appears independent of the classification of broadband Internet access service and we thus do not forbear as to those provisions. See supra Sections V.C.2.a, V.C.2.c., V.C.3. See supra Section V.C.2.e. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. 47 U.S.C. § 221. See 47 U.S.C. § 259. 47 U.S.C. § 226. S. Rep. No. 439, 101st Cong., 2d Sess. at 1 (1990). “Operator services” include collect or person-to-person calls, calls billed to a third number, and calls billed to a calling card or credit card. These services may be provided by an automated device as well as by a live operator. Id. 47 U.S.C. § 227(c)(3)(B), (C), (L). Because we are forbearing from these substantive requirements, we note that, as a consequence, there will not be a private right of action granted under section 227(c)(5) based on alleged violations of those forborne-from requirements in the context of broadband Internet access service. We note that while the universe of “calls” covered by section 227(b)(1)(A)(iii) is prerecorded or autodialed calls to “a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call” even with the reclassification of mobile BIAS we do not interpret there to be any new or expanded restrictions arising from that provision because the relevant calls also would need to be specifically to a “telephone number” assigned to the relevant service. 47 U.S.C. § 227(b)(1)(A)(iii). As a result, there also would not be any private right of action under section 227(b)(3) that is newly triggered by the decisions in this Order. 47 U.S.C. § 227(b)(3). 47 U.S.C. § 227(e). 47 U.S.C. § 228. 47 U.S.C. § 260. 47 U.S.C. § 10(a)(1). See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. 47 U.S.C. §§ 10(a)(2), (a)(3). See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See, e.g., Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Report and Order and Further Notice of Proposed Rulemaking, 28 FCC Rcd 14107, 14115, para. 14 (2013) (ICS Order) (“[S]ection 276 directs the Commission to ‘establish a per call compensation plan to ensure that all payphone service providers’—which the statute defines to include providers of ICS—‘are fairly compensated for each and every completed intrastate and interstate call.’ . . . Section 276 makes no mention of the technology used to provide payphone service and makes no reference to ‘common carrier’ or ‘telecommunications service’ definitions.”) (internal citations omitted); 47 C.F.R. §§ 64.6000 et seq.  pets. for stay granted in part sub nom. Securus Techs. v. FCC, No. 13-1280 (D.C. Cir. Jan. 13, 2014).  See generally Comments from Deborah M. Golden, D.C. Prisoners’ Legal Services Project, Inc., to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Feb. 18, 2015). See ICS Order, 28 FCC Rcd at 14109-10, para. 3. See, e.g., Public Knowledge Dec. 19, 2014 Ex Parte Letter at 21 & n.97. The Commission has previously noted the availability of section 201(b)’s protections outside the scope of the truth-in-billing rules. See, e.g., Empowering Consumers To Prevent and Detect Billing For Unauthorized Charges (“Cramming”); Consumer Information and Disclosure; Truth-in-Billing and Billing Format, CG Docket Nos. 11-116, 09-158; CC Docket No. 98-170, Report and Order and Further Notice of Proposed Rulemaking, 27 FCC Rcd 4436, 4455, para. 47 (2012) (“remind[ing] CMRS carriers that,” in addition to “those Truth-in-Billing rules that already apply to them” they “remain subject to section 201(b), . . .and to the Commission's enforcement authority”). Public Knowledge Dec. 19, 2014 Ex Parte Letter at 21. See infra Section V.D. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See 47 C.F.R. §§ 20.12(a)(2), (d). See 47 C.F.R. § 20.12(d). See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, WT Docket No. 05-265, Report and Order and Further Notice of Proposed Rulemaking, 22 FCC Rcd 15817, 15837-38, para. 56 (2007). See Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, WT Docket No. 05-265, Second Report and Order, 26 FCC Rcd 5411, 5411-12, paras. 1, 2 (2011); 47 C.F.R. §§ 20.3, 20.12(a)(3), 20.12(d). See 47 C.F.R. § 20.12(e). See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 21. While Full Service Network/TruConnect refer generally to our “Part 68” rules, that Part also includes our hearing aid compatibility rules, and as described above, the Commission’s existing hearing aid compatibility rules do not immediately impose new hearing aid compatibility requirements on mobile wireless broadband providers by virtue of the classification decisions in this Order, and we do not forbear from applying those rules or section 710 of the Act. See supra Section V.C.1.b. Section 710 of the Act and our hearing aid compatibility rules thus are not encompassed by the discussion here. See supra Section III.C.1. See supra Section III.D.4. Insofar as any Part 68 rules subject to forbearance here also permitted carriers to take steps to protect their networks, we expect that such steps also would constitute reasonable network management under our open Internet rules. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. The Commission has forborne from provision of Title II and from Commission rules on many instances in the past. However, nothing in the language of section 10 categorically limits the scope of Commission forbearance only to the provisions of Title II, see generally 47 U.S.C. § 160, and although it has been less common for the Commission to forbear from provisions of Title III and VI, it has done so at times. See, e.g., FCBA Forbearance Order, 13 FCC Rcd 6293 (granting certain forbearance from section 310(d) under section 10 of the Act); Petition for Declaratory Ruling to Clarify 47 U.S.C. § 572 in the Context of Transactions Between Competitive Local Exchange Carriers and Cable Operators; Conditional Petition for Forbearance From Section 652 of the Communications Act for Transactions Between Competitive Local Exchange Carriers and Cable Operators, 27 FCC Rcd 11532 (2012) (granting certain forbearance from section 652 under section 10 of the Act). For clarity, we note that by “rules” we mean both codified and uncodified rules. In addition, by “associated” Commission rules, we mean rules implementing requirements or substantive Commission jurisdiction under provisions in Title II, III, and/or VI of the Act from which we forbear. The Order’s classification of broadband Internet access service could trigger requirements that apply by their terms to “common carriers,” “telecommunications carriers,” “providers” of common carrier or telecommunications services, or “providers” of CMRS or commercial mobile services. Similarly, other provisions of the Act and Commission rules may impose requirements on entities predicated on the entities’ classification as a “common carrier,” “telecommunications carrier,” “provider” of common carrier or telecommunications service, or “provider” of CMRS or commercial mobile service without being framed in those terms. As illustrative examples, see, e.g., 47 C.F.R. § 61.3(ss) (defining a “tariff” as “[s]chedules of rates and regulations filed by common carriers”); 47 C.F.R. § 64.2101 (“covered provider” defined to include, for example, “a local exchange carrier as defined in § 64.4001(e), an interexchange carrier as defined in § 64.4001(d), a provider of commercial mobile radio service as defined in § 20.3 of this chapter . . .”). The classification of broadband Internet access service as a telecommunications service and, in the mobile context, also CMRS service under the Communications Act, thus could trigger any requirements that apply by their terms to “common carrier services,” “telecommunications services,” or “CMRS” or “commercial mobile” services. Similarly, other provisions of the Act and Commission rules may impose requirements on services predicated on a service’s classification as a “common carrier service,” “telecommunications service,” “CMRS” or “commercial mobile” service without being framed in those terms. As an illustrative example, see, e.g., 47 C.F.R. § 64.708(i) (“operator services” are defined as certain interstate telecommunications services). This forbearance would not include rules implementing our substantive jurisdiction under provisions of the Act from which we do not forbear that merely cite or rely on sections 201 or 202 in some incidental way, such as by, for example, relying on the rulemaking authority provided in section 201(b). Consistent with our discussions above, this category also does not include our open Internet rules. See, e.g., 47 C.F.R. Part 1, Subpart G (filing fees, regulatory fees). See generally supra Section V.C.2; see also, e.g., supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. To the extent that any questions arise as to specific provisions or regulations in the future, we can address those as needed at that time. We note in this regard that the Commission cannot impose a penalty for conduct in the absence of “fair notice of what is prohibited.” FCC v. Fox Television Stations, 132 S. Ct. 2307, 2317 (2012). 47 U.S.C. § 160. See, e.g., Forbearance from Applying Provisions of the Communications Act To Wireless Telecommunications Carriers, WT Docket No. 98-100, First Report and Order, 15 FCC Rcd 17414, 17427, para. 28 (2000) (holding that “the three-prong [section 10] forbearance test is inapplicable to UTC’s request because the Commission lacks forbearance authority over non-common carriers such as UTC,” where UTC had sought modification of Commission rules “to allow private microwave licensees to act as providers to other carriers”); FCBA Forbearance Order, 13 FCC Rcd at 6299, para. 9 (“licensees governed by these rule parts who do not meet the definition of ‘telecommunications carrier’ (e.g., public safety and private microwave licensees) are beyond the scope of our section 10 forbearance authority, and therefore are not subject to the revised procedures established by this Order”). See, e.g., 2014 Open Internet NPRM, 29 FCC Rcd at 5612-13, 5615-16 paras. 148, 153. See, e.g., NCTA Jan. 15, 2015 Ex Parte Letter at 3 (arguing against “applying Title II to increase regulatory burdens on broadband providers”); Comcast Dec. 24, 2014 Ex Parte Letter at 13 (arguing that if the Commission reclassifies broadband Internet access service, “it should mitigate the associated” effect “as much as possible by coupling Title II reclassification with broad forbearance from all Title II restrictions and obligations”). See, e.g., 47 C.F.R. §§ 1.3, 1.53-1.59, 1.401. In addition to those discussed below, these considerations explain, for example, why we do not grant forbearance with respect to sections 303(b), 303(r) and 316, upon which we rely for authority for our open Internet rules. See supra Section III.F.3. 47 U.S.C. § 257. See, e.g., Public Knowledge Comments at 95. See, e.g., NARUC Comments at 14-15 (discussing, for example, state authority to perform ETC designations in section 214(e)(2) and reservations of certain state authority under section 253); Massachusetts DTE Comments at 8 n.4 (incorporating by reference Massachusetts DTE Reply, GN Docket No. 10-127 (filed Apr. 12, 2010) (also discussing, for example, reservation of state pole attachment authority under section 224(c) and the reservation of state authority in section 261)). 47 U.S.C. § 230(c). See, e.g., NCTA Dec. 23, 2014 Ex Parte Letter at 21 (arguing that the Commission should not forbear with respect to “immunity from publisher-related liability” under section 230, which “has nothing to do with common-carrier regulation”). We note that many of the relevant provisions in these sections stem from the Child Online Protection Act (COPA), which federal courts have enjoined from being enforced. COPA amended the Communications Act by adding sections 230(d) and 231 and amending parts of sections 223(h)(2) and 230(d)–(f). See Child Online Protection Act, Pub. L. No. 105-277, §§ 1401–05, 112 Stat. 2681-736–2681-741 (1998). After COPA reached the Supreme Court twice, a federal court held that COPA is unconstitutional and placed a permanent injunction against its enforcement. The decision was affirmed on appeal, and petition for writ of certiorari has been denied. See ACLU v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999) (enjoining the enforcement of the Act), aff’d, 217 F.3d 162 (3rd Cir. 2000), vacated and remanded, Ashcroft v. ACLU, 535 U.S. 564 (2002) (finding that the Act’s reference to contemporary community standards on its own does not render it unconstitutional and the 3rd Circuit must consider additional matters), aff’d, ACLU v. Ashcroft, 322 F.3d 240 (3rd Cir. 2003), aff’d and remanded, Ashcroft v. ACLU, 542 U.S. 656 (2004) (instructing that the district court should update the factual record and take into account current, applicable technologies); ACLU v. Gonzales, 478 F. Supp.2d 775 (E.D. Pa 2007) (entering a permanent injunction against enforcement of the Act after holding that it is facially unconstitutional), aff’d, ACLU v. Mukasey, 534 F.3d 181 (3rd Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009). The Communications Decency Act (CDA) (Pub. L. No. 104-104, §§ 501–02, 110 Stat. 56, 133–36), which amended section 223 of the Communications Act, has also been overturned in part, by the Supreme Court. See Reno v. ACLU, 521 U.S. 844 (1997). However, the constitutionally offensive parts of the CDA were amended by the PROTECT Act, which is still good law. See Prosecutorial Remedies and Tools against the Exploitation of Children Today (PROTECT) Act, Pub. L. No. 108-21, § 603, 117 Stat. 650, 687 (2003). 47 U.S.C. §§ 223, 231. As a narrow exception to this general conclusion, section 223(c)(1) conceivably could be newly applied to broadband providers by virtue of the classification decisions in this Order.  47 U.S.C. § 223(c)(1).  No commenter meaningfully argues that the Commission should apply this provision to broadband providers, and that fact, coupled with the other protections that remain, persuade us that, insofar as the Commission would apply this provision, such application is not necessary for purposes of sections 10(a)(1) and (a)(2).  Likewise, consistent with the tailored regulatory approach adopted in this Order, we find it in the public interest under section 10(a)(3) to forbear insofar as the Commission otherwise would newly apply that provision to a broadband provider as a result of this Order. As examples of such provisions in Title II, see, e.g., 47 U.S.C. § 223 (provisions limiting or establishing defenses for liability under that section), 47 U.S.C. § 231(provisions limiting or establishing defenses for liability under that section), 47 U.S.C. § 253 (authorizing preemption of state or local requirements restricting the provision of telecommunications services). 47 U.S.C. § 160(a)(3). COMPTEL Comments at 22-23. 47 U.S.C. § 229(a)-(d). 47 U.S.C. § 229(e). See generally Communications Assistance for Law Enforcement Act and Broadband Access and Services, First Report and Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 14989 (2005). See Communications Assistance for Law Enforcement Act, ET Docket No. 04-295, RM-10865, Second Report and Order and Memorandum Opinion and Order, 21 FCC Rcd 5360, 5394-95, para. 75 (2006) (2006 CALEA Order); see also Communications Assistance for Law Enforcement Act, CC Docket No. 97-213, Report and Order, 14 FCC Rcd 4151, 4159, para. 20 (1999) (“[W]e find that the regulations we prescribe herein apply to all telecommunications carriers as that term is defined in section 102(8) of CALEA.”). While the Commission previously has suggested that section 229(b) applies only to common carriers under the Communications Act, see 2006 CALEA Order, 21 FCC Rcd at 5389, para. 66, the Commission has consistently applied CALEA’s definition to all of its CALEA rules. Under section 10, the Commission can forbear from applying certain provisions of the Communications Act when the relevant section 10(a) criteria are met, but CALEA is not itself part of the Communications Act. See 47 C.F.R. §§ 22.1110, 27.10. See 47 C.F.R. § 1.907. See, e.g., EFF Comments at 16-17 (The Commission’s “forbearance analysis should specifically address all relevant Title II obligations, so as to avoid an explosion of forbearance petitions.”). See, e.g., Public Knowledge et al. Comments at 95-97; Vimeo Reply at 15 n.46. Bare assertions that the record here is inadequate to justify forbearance from certain provisions from which we forbear above similarly are too conclusory to warrant deferring a decision to a future proceeding. See, e.g., Letter from Mark Cooper, Director of Research, Consumer Federation of America, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1-2 (filed Jan. 7, 2015). See, e.g., Letter from Harold Feld, et al., Public Knowledge, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 20-21 (filed Dec. 19, 2014) (Public Knowledge Dec. 19, 2014 Ex Parte Letter). See generally supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. See, e.g., ITIF Comments at 11; Mercatus Center Reply at 12; NetCompetition Reply at 3. The posture here is distinguishable from the circumstances underlying the Brand X case, where a court had classified cable modem service as a telecommunications service without simultaneous forbearance of the sort we adopt here, and thus we reject arguments seeking to rely on court filings there. See, e.g., Cox Reply at 10 & n.36 (quoting Petition for a Writ of Certiorari by U.S. Dept. of Justice and FCC, FCC v. Brand X Internet Servs., No. 04-281, at 25-26 (Aug. 27, 2004) (among other things, stating “[f]orbearance proceedings would be time-consuming and hotly contested . . . ”).)); Comcast Reply at 14-15 (similar). See, e.g., Public Knowledge Comments at 95-97; Public Knowledge Dec. 19, 2014 Ex Parte Letter at 21-22; Letter from Marvin Ammori to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 5 (filed Dec. 19, 2014) (Ammori Dec. 19, 2014 Ex Parte Letter). See, e.g., Public Knowledge Dec. 19, 2014 Ex Parte Letter at 22. See, e.g., Letter from Daniel Berninger, founder, VCXC, et al., to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 5 (filed Jan. 22, 2015); Full Service Network/TruConnect Feb. 3, 2015 Ex Parte Letter at 6-11. As discussed above, we also reject other asserted APA violations. See supra Section V.A. As noted above, a recent court case, seemingly in dicta, suggested that forbearance is informal rulemaking, while the Commission has not expressly resolved that question. Compare Verizon v. FCC, 770 F.3d 961, 966-67 (D.C. Cir. 2014) with, e.g., Petition To Establish Procedural Requirements To Govern Proceedings For Forbearance Under Section 10 Of The Communications Act Of 1934, As Amended, WC Docket No. 07-267, Report and Order, 24 FCC Rcd 9543, 9554, para. 19 n.72, para. 20 (2009). We need not and do not address that broader question here. 5 U.S.C. §§ 553(b)-(c). Nuvio Corp. v. FCC, 473 F.3d 302, 310 (D.C. Cir. 2006) (citing Action for Children’s Television v. FCC, 564 F.2d 458, 470 (D.C. Cir. 1977) (internal quotation marks and citations omitted)). See PSC of DC v. FCC, 906 F.2d 713, 717 (D.C. Cir. 1990). See Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 951-52 (D.C. Cir. 2004) (discussing APA notice requirements and the “logical outgrowth” test). The Commission has acknowledged this standard in the past, even if using slightly different wording to the same effect. See, e.g., Rural Call Completion, WC Docket No. 13-39, Order on Reconsideration, 29 FCC Rcd 14026, 14036, para. 26 (2014) (“As long as parties could have anticipated that the rule ultimately adopted was possible, it is considered a ‘logical outgrowth’ of the original proposal, and there is no violation of the APA’s notice requirements.”). 2014 Open Internet NPRM, 29 FCC Rcd at 5615-16, para. 153. Id. The Commission further sought comment on “which provisions should be exempt from forbearance and which should receive it” based on whether such action would “protect and promote Internet openness.” Id. at 5616, para. 154. These are the factors that the Commission did, in fact, use in evaluating the section 10(a) criteria and deciding whether and how much forbearance to grant here. See generally supra Sections V.A-C. We thus disagree with the dissent’s suggestion that the notice provided by the Commission was inadequate in this regard. See Pai Dissent at 27-28. Id. at 5616, para. 155. See also, e.g., id. at 5612-13, para. 148 (“For either of these [classification] possibilities, we seek comment on whether and how the Commission should exercise its authority under section 10 (or section 332(c)(1) for mobile services) to forbear from specific obligations under the Act and Commission rules that would flow from the classification of a service as telecommunications service.”). Within that scope, the Commission also sought more detailed comment on specific aspects of the possible forbearance it might adopt, discussing similar questions raised in the 2010 Broadband Classification NOI, particular statutory provisions from which the Commission might not forbear, and particular approaches the Commission might use to evaluating forbearance. Id. at 5616, para. 154. Moreover, as discussed in the preceding sections above, the 2014 Open Internet NPRM yielded a robust record regarding forbearance. See, e.g., AT&T Comments at 67; Cox Comments at 35-36; Ericsson Comments at 11- 12; Comcast Reply at 14-17; Cox Reply at 10-11. See supra Section IV. Perfect regulatory certainty would not be feasible under any classification. For example, even just as to rules adopted under section 706 of the 1996 Act parties theoretically could raise judicial challenges as to the adequacy of the Commission’s rules in meeting the objectives of section 706 and a future Commission likewise might elect to modify those rules. See Yale Broadcasting Co. v. FCC, 478 F.2d 594, 602 (D.C. Cir. 1973); 5 U.S.C. § 554(e); 47 C.F.R. § 1.2(a). See, e.g., Vonage Reply at 32 (“Rather than debate each individual section of Title II in its forbearance analysis, the Commission could limit its Title II authority to those provisions necessary to adopt and enforce Open Internet rules and forbear from applying all other provisions and rules under Title II that do not bear on the Open Internet rules originally codified in 2010.”). See, e.g., AT&T v. FCC, 452 F.3d 830, 836-37 (D.C. Cir. 2006) (“the Commission may not refuse to consider a petition’s merits solely because the petition seeks forbearance from uncertain or hypothetical regulatory obligations”); Broadband Classification NOI, 25 FCC Rcd at 7896, para. 70 n.187 (“Section 10 allows the Commission to consider forbearance from requirements that do not currently apply or may not apply even in the absence of forbearance.”); Feature Group IP Petition for Forbearance From Section 251(g) of the Communications Act and Sections 51.701(b)(1) and 69.5(b) of the Commission's Rules, WC Docket No. 07-256, Order on Reconsideration, 25 FCC Rcd 8867, 8874, para. 12 & n.43 (2010) (rejecting arguments that the Commission should have clarified whether certain requirements applied before addressing a forbearance request, and further rejecting the claim that this approach was in consistent with AT&T v. FCC, explaining instead that “[i]n AT&T v. FCC, the Court of Appeals for the District of Columbia Circuit faulted the Commission for failing to conduct the statutory analysis required by section 10 of the Act,” while “[h]ere, by contrast, the Commission conducted the requisite analysis and concluded that the statutory forbearance criteria were not met”); Feature Group IP Petition for Forbearance From Section 251(g) of the Communications Act and Sections 51.701(b)(1) and 69.5(b) of the Commission’s Rules, WC Docket No. 07-256, Memorandum Opinion and Order, 24 FCC Rcd 1571, 1574, para. 6 (2009) (“For the purposes of conducting our analysis of this petition, we assume, arguendo, that the foundation of Feature Group IP’s petition is valid. That is, we assume that section 251(g), the exception clause in section 51.701(b)(1), and section 69.5(b) of the Commission’s rules apply to voice-embedded Internet communications, with the effect that at least in some circumstances, LECs may receive access charges.”). See supra paras. REF _Ref412368342 \r \h 495- REF _Ref413325732 \r \h 496; Section V.C.2.a. Ad Hoc, 572 F.3d at 906-07. As noted earlier in this paragraph, we assume arguendo that these provisions apply and nonetheless find forbearance warranted as discussed above. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 663 (1994) (Turner I). CenturyLink Comments at 61–64; Verizon Comments at 67; Free State Reply at 20. CenturyLink Comments at 63–64; see also Verizon Comments at 67. CenturyLink also argues that broadband Internet access service is comparable to requiring a “parade organizer to admit all applicants on a lottery basis” and “a newspaper to carry replies to its editorials.” CenturyLink Comments at 64. CDT Comments at 28–30; Barbara Cherry Reply at 21. 2010 Open Internet Order, 25 FCC Rcd at 17982, para. 141. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 66 (2006); see also United States v. O’Brien, 391 U.S. 367, 376 (1968) (“We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”). Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974) (per curiam)). CenturyLink Comments at 62–64; Verizon Comments at 67. Turner I, 512 U.S. at 636. Id. at 636 (alteration in original) (citation omitted). Likewise, while a newspaper publisher chooses which material to publish, broadband providers facilitate access to all or substantially all Internet endpoints. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257 (1974) (“A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, . . . constitute the exercise of editorial control and judgment.” (quoting New York Times v. Sullivan, 376 U.S. 254, 279 (1964)). In contrast, broadband Internet access services more closely resemble the “conduit for news, comment, and advertising” from which the Court distinguishes newspaper publishing. See id. at 258. Verizon Comments at 3; CenturyLink Comments at 15; Charter Comments at 31. See, e.g., Verizon Comments at 2 (“Verizon has committed to its customers to provide them Internet access that let them go where they want and do what they want online, using their choice of compatible applications and devices. Other broadband providers have similarly committed to supporting the open Internet.”). See, e.g., CTIA Comments at 28 (“Mobile broadband customers fully expect access to all lawful content and applications, and providers have strong incentives to meet these expectations. . . .”). To be sure, broadband providers engage in some reasonable network management designed to protect their networks from malicious content and to relieve congestion, but these practices bear little resemblance to the editorial discretion exercised by cable operators in choosing programming for their systems. In the same way, broadband providers do not operate their networks in ways that are analogous to parade organizers or “modern day printing presses” as Verizon contends. Verizon Comments at 67. Comparisons to the “right of reply” statutes at issue in Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 257 (1974) are similarly misplaced. There, Florida’s “right of reply” law unconstitutionally burdened the paper’s “exercise of editorial control and judgment,” made all the more salient by the requirement that political candidates receive “equal space” in a fairly limited medium. Id. at 243. Broadband Internet access services are not similarly limited—access to one edge provider does not displace another. See Stuart Minor Benjamin, Transmitting, Editing, and Communicating: Determining What “The Freedom Of Speech” Encompasses, 60 Duke L.J. 1673, 1685 (2011) (describing how the transportation of First Amendment-protected materials “from one user to another” does not transform the delivery company into a speaker for First Amendment purposes). Turner I, 512 U.S. at 637. Rumsfeld v. Forum for Academic & Institutional Rights, Inc. 547 U.S. 47, 64 (2006) (FAIR). We further conclude that broadband providers’ conduct is not sufficiently expressive to warrant First Amendment protection, as the provision of broadband Internet access services is not “inherently expressive,” but would require significant explanatory speech to acquire any characteristics of speech. See Id. at 65-66. We recognize that in two cases, federal district courts have concluded that the provision of broadband service is “speech” protected by the First Amendment. In Itasca, the district court reasoned that broadband providers were analogous to cable and satellite television companies, which are protected by the First Amendment. Ill. Bell Tel. Co. v. Vill. Of Itasca, 503 F. Supp. 2d 928, 947–49 (N.D. Ill 2007). And in Broward County, the district court determined that the transmission function provided by broadband service could not be separated from the content of the speech being transmitted. Comcast Cablevision of Broward Cnty., Inc. v. Broward Cnty., 124 F. Supp. 2d 685, 691–92 (S.D. Fla. 2000). For the reasons stated, we disagree with the reasoning of those decisions. See 2010 Open Internet Order, 25 FCC Rcd at 17982, para. 141. 47 U.S.C. § 153(43). 47 U.S.C. § 153(44). Midwest Video II, 440 U.S. at 701 (“A common-carrier service in the communications context is one that ‘makes a public offering to provide, for hire, facilities by wire or radio whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing . . . .’”) (quoting Industrial Relocation Service, 5 FCC 2d 197, 202, para. 19 (1966)); see also NARUC v. FCC, 533 F.2d 601, 609 (D.C. Cir. 1976) (NARUC II). See supra Section IV. We also note that the requirement under Computer II that facilities-based providers of “enhanced services” separate out and offer on a common carrier basis the “basic service” transmission component underlying their enhanced services, a requirement reflected in the 1996 Act’s distinction between “telecommunications services” and “information services” was never held to raise First Amendment concerns. See Turner I, 512 U.S. at 684 (assuming that Congress could have imposed common carrier obligations on cable operators without raising First Amendment concerns) (O’Connor, J., dissenting). The Supreme Court has acknowledged the distinction between common carriers and entities with robust First Amendment rights in numerous contexts. See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 378 (1984) (“Unlike common carriers, broadcasters are ‘entitled under the First Amendment to exercise the widest journalistic freedom consistent with their public [duties].”); Denver Area Educ. Telecoms. Consortium v. FCC, 518 U.S. 727, 739 (1996) (plurality opinion) (distinguishing between common carriers’ and editors’ rights under the First Amendment); Midwest Video II, 440 at 709 n.19 (1979) (ruling on other grounds, but acknowledging that First Amendment issues implicated in compelling cable operators to provide common carriage of public-originated transmissions are “not frivolous”). See 17 U.S.C. § 512(a) (a “service provider shall not be liable . . . for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for” material distributed by others on its network); see also Verizon Online Terms of Service 12(5), http://www.verizon.com/idc/groups/public/documents/adacct/verizon_internet_tos_121614.pdf (“Verizon assumes no responsibility for the accuracy, integrity, quality completeness, usefulness or value of any Content, advice or opinions contained in any emails, message boards, chat rooms or community services, Verizon Web Sites or in any other public services or social networks, and that Verizon does not endorse any advice or opinion contained therein, whether or not Verizon provides such service(s). Verizon does not monitor or control such services, although we reserve the right to do so.”) (last visited Feb. 2, 2015). Recording Indus. Ass’n of Am. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1237 (D.C. Cir. 2003); see also Charter Communications, Inc., 393 F.3d 771, 777 (8th Cir. 2005) (no subpoena because broadband provider is “limited to acting as a conduit”). 47 U.S.C. § 230(c)(1) (“[N]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”). Turner I, 512 U.S. at 642 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Id. at 662 (internal quotation marks omitted). 47 U.S.C. § 1302(a). 47 U.S.C. § 230(b)(1). Verizon, 740 F.3d at 644. Turner I, 512 U.S. at 663. The Turner I Court continued: “Indeed, it has long been a basic tenet of national communications policy that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Id. (internal quotation marks omitted). See also FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. 775, 795 (1978) (NCCB) (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945)). Verizon Comments at 67. Citizens United v. Fed. Elec. Comm’n, 558 U.S. 310, 339 (2010) (quoting Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971))) (internal quotation marks omitted). See Time Warner Cable, Inc. v. FCC, 729 F.3d 137, 159-60 (2d Cir. 2013) (“In the absence of clearer direction from the Supreme Court, we will not ourselves assume that Citizens United implicitly reversed Turner I to compel strict scrutiny of all speaker-based preferences, even outside the political speech context.”). See supra para. REF _Ref412381580 \r \h 548. Turner I, 512 U.S. at 660–61 (quoting Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 585 (1983)). See Verizon, 740 F.3d at 646 (finding that “[t]he Commission also convincingly detailed how broadband providers’ position in the market gives them the economic power to restrict edge-provider traffic and charge for the services they furnish edge providers”); cf. BellSouth Corp. v. FCC, 144 F.3d 58, 69 (1998) (applying intermediate scrutiny to differential treatment of Bell Operating Companies under 47 U.S.C. § 274 with regard to electronic publishing owing to special characteristics). CenturyLink Comments at 59–61. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985) (Zauderer). CenturyLink’s reliance on Riley v. National Federation of the Blind of North Carolina, Inc. for analyzing the constitutionality of the transparency rule is inapt. That case concerned mandatory disclosure of the percentage of charitable contributions used toward charity, but the transparency rule requires disclosure of purely commercial terms pertaining to the provision of broadband services. See Riley v. National Federation of the Blind of North Carolina, Inc., 487 U.S. 781, 796 n.9 (1988) (“Purely commercial speech is more susceptible to compelled disclosure requirements.”). Zauderer, 471 U.S. at 651. Id. at 652 n.14. Id. at 651. American Meat Institute v. US Dept. of Agriculture, 760 F.3d 18, 22 (D.C. Cir. 2014) (“All told, Zauderer’s characterization of the speaker’s interest in opposing forced disclosure of [factual] information as ‘minimal’ seems inherently applicable beyond the problem of deception, as other circuits have found.”) (citing N.Y. State Rest. Ass’n v. N.Y. City Bd. Of Health, 556 F.3d 114, 133 (2d Cir. 2009); Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 310 (1st Cir. 2005) (Torruella, J.); id. at 316 (Boudin, C.J. & Dyk, J.); id. at 297–98 (per curiam) (explaining that the opinion of the Chief Judge Boudin and Judge Dyk is controlling on the First Amendment issue); Nat’l Elec. Mafrs. Ass’n v. Sorrell, 272 F.3d 104, 113-15 (2d Cir. 2001)). See supra Section III.B.2. 2010 Open Internet Order, 25 FCC Rcd at 17936, para. 53. 2014 Open Internet NPRM, 29 FCC Rcd at 5586, para. 69. Verizon, 740 F.3d at 644–45. 2014 Open Internet NPRM, 29 FCC Rcd at 5585, para 66 (“‘Sunlight,’ as Justice Brandeis has explained, ‘is . . . the best of disinfectants.’”) (citing L. Brandeis, Other People’s Money, Chapter 5 (National Home Library Foundation ed. 1933), http://www.law.louisville.edu/library/collections/brandeis/node/196. 2014 Open Internet NPRM, 29 FCC Rcd at 5585, para. 66. Id. at 5580, para. 53. See, e.g., Verizon Title II White Paper at 1-5. See generally supra Section IV. Southwestern Bell Telephone Co. v. FCC, 19 F.3d 1475, 1481 (D.C. Cir. 1994) (citing NARUC I, 525 F.2d at 644 (“Further, we reject those parts of the Orders which imply an unfettered discretion in the Commission to confer or not confer common carrier status on a given entity, depending on the regulatory goals it seeks to achieve.”). Verizon Comments at 66; Verizon White Paper at 4 n.3. Verizon Comments at 66 n.183 (citing NARUC v. FCC, 525 F.2d 630, 640 (1976) (NARUC I)). NARUC I, 525 F.2d at 641 (“Subsequently, legislation has been upheld imposing stringent regulations of various types on entities found to be affected with a public character, even where nothing approaching monopoly power exists. In such cases as the Motor Carrier Act of 1935, relatively competitive carrying industries have been subjected to entry, rate and equipment regulations on the basis of the quasi-public character of the activities involved.”). See Verizon, 740 F.3d at 651 (“‘[T]he primary sine qua non of common carrier status is a quasi-public character, which arises out of the undertaking to carry for all people indifferently.’” (internal quotation marks omitted) (citing Nat’l Assoc. of Reg. Utility Commissioners v. FCC, 533 F.2d 601, 608 (1976) (NARUC II)). See NARUC I, 525 F.2d at 641 (citing American Trucking Ass’ns, Inc. v. United States, 101 F.Supp. 710 (N.D. Ala. 1951) (upholding Motor Carrier Act of 1935 applying common carriage status to trucking industry against constitutional challenge under the Fifth Amendment, though significant competition existed)); see also Sam L. Majors Jewelers v. ABX, Inc., 117 F.3d 922, 928-29 (5th Cir. 1997) (preserving federal cause of action against air carriers as common carriers after deregulation of airline industry). CenturyLink Comments at 64–70; TechFreedom Comments at 93–94; Verizon Comments at 66–67; Verizon Reply at 48. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982) (holding that a New York law requiring landlords to permit a cable company to install cables on their leased buildings required just compensation because it effected a “permanent physical occupation” of their private property). The government may also commit a per se taking by completely depriving an owner of all economically beneficial use of her property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992). However, the record does not reflect a concern among commenters that our actions today deprive broadband providers of all economically beneficial use of their property—nor do we find one merited—so we limit our discussion to the permanent physical occupation variety of per se takings. Loretto, 458 U.S. at 441. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 324 (2002). Loretto, 458 U.S. at 437. See generally id. Cablevision Systems Corp. v. FCC, 570 F.3d 83, 98 (2d Cir. 2009) (quoting FCC v. Fla. Power Corp., 480 U.S. 245, 252-53 (1987) (“[The] touchstone [of per se takings] is ‘required acquiescence’ to the occupation of the property by an uninvited stranger or an ‘interloper with a government license.’”)). The Supreme Court has further cabined this per se takings rule by noting that some permanent incursions onto private property could be acceptable if the property owner owned the installation and retained discretion in how to deploy it. Loretto, 458, U.S. at 441, n.19 (hypothesizing that the New York statute in question could have required landlords “to provide cable installation if a tenant so desires” if the landlord owned the installation). Were our rules found to impose a permanent physical occupation on broadband providers’ networks, broadband services seem to fall squarely within this exception. Broadband Internet access services are characterized as distinctly user-directed. Further, providers retain discretion in the deployment of their facilities and are free to manage traffic through reasonable network management. See supra Section III.D.4. See Cablevision Sys. Corp. v. FCC, 570 F.3d 83, 98 (2d Cir. 2009) (upholding Commission’s finding that a must-carry obligation did not constitute a physical occupation because “the transmission of WRNN’s signal does not involve a physical occupation of Cablevision’s equipment or property”); Qwest v. United States, 48 Fed. Cl. 672, 693-94 (Fed. Cl. 2001); see also Loretto, 458 U.S. at 435, n.12 (“The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude . . , [which] are subject to a more complex balancing process to determine whether they are a taking.”). Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 324 (2002). See Loretto, 458 U.S. at 440 (“So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity.”). See Hilton Washington Corp. v. District of Columbia, 777 F.2d 47 (D.C. Cir. 1985) (non-discrimination requirement with respect to hotel taxi stands held not a taking under Loretto); Yee v. City of Escondido, 503 U.S. 519, 531 (1992) (noting that because mobile home park petitioners “voluntarily open their property to occupation by others, petitions cannot assert a per se right to . . . exclude particular individuals”); PruneYard Shopping Center v. Robbins, 447 U.S. 74, 83-84 (1980); FCC v. Florida Power Corp., 480 U.S. 245, 251–253 (1987). See, e.g., Verizon Comments at 2. With respect to the rules governing the broadband Internet access service, broadband providers are compensated through the imposition of subscription fees on their end users. See Verizon Comments at 67; CenturyLink Comments at 70–71. Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 124 (1978). Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005) (discussing application of the Penn Central factors). Charter Comments at 3; BrightHouse Comments at 25-26; Verizon Comments at 3. See Verizon, 740 F.3d at 649 (affirming the Commission’s finding that “the strength of the effect on broadband investment that it anticipated from edge-provider innovation, which would benefit both from the preservation of the ‘virtuous circle of innovation’ created by the Internet’s openness and the increased certainty in that openness engendered by the Commission’s rules”). See supra Section III.D (excluding from the scope of the open Internet rules reasonable network management, Internet traffic exchange, and other data services outside the definitions of broadband Internet access services). Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992); Gen. Tel. Co. of the Sw. v. United States, 449 F.2d 846, 864 (5th Cir. 1971). Additionally, persons operating in a regulated environment develop fewer reliance interests in industries subject to comprehensive regulation. See Concrete Pipe & Prods. of S. Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 645 (1993) (quoting FHA v. The Darlington, Inc., 358 U.S. 84, 91 (1958)). See Regulatory & Policy Problems Presented by the Interdependence of Computer & Comm. Servs., Docket No. 16979, Final Decision and Order, 28 F.C.C. 2d 267, 270, para. 12, 275, para. 24 (1971) (Computer I Final Decision), aff’d sub nom. GTE Servs. Corp. v. FCC, 474 F.2d 724 (2d Cir. 1973), decision on remand, 40 F.C.C. 2d 293 (1972); Amendment of Section 64.702 of the Comm’n’s Rules & Regs, Second Computer Inquiry, Final Decision, 77 F.C.C. 2d 384, 417-35, 461-75, paras. 86-132, 201-31 (1980) (Computer II Final Decision), aff’d sub nom. Computer & Commc’ns Indus. Ass’n v. FCC, 693 F.2d 198 (D.C. Cir. 1982); Amendment of Section 64.702 of the Comm’n’s Rules & Regs. (Third Computer Inquiry), CC Docket No. 85-229, Phase I, Report and Order, 104 F.C.C. 2d 958, para. 4 (1986) (Computer III Phase I Order) (subsequent history omitted). Verizon, 740 F.3d at 629-630 (discussing the historical progression of our regulation of Internet access) (citing Computer II, 77 F.C.C.2d 384, 387, paras. 5-7). See also Comcast, 600 F.3d at 646-47. See, e.g., Letter from Kathryn Zachem, Senior Vice President, Comcast, to Marlene H. Dortch, Federal Communications Commission, WC Docket No. 14-28, 10-127, at 7 (filed Nov. 4, 2014); Verizon Title II White Paper at 12. See Cable Modem Declaratory Ruling, 17 FCC Rcd at 4841-45 (seeking comment on the extent to which the Commission should regulate cable modem service, including whether the Commission should require cable operators to offer “open access’); Wireline Broadband Classification Order, 20 FCC Rcd at 14929-14935, paras. 145-159 (seeking comment on, among other things, the need for geographic rate averaging, and consumer protections regarding CPNI, against slamming, against sudden discontinuance of service). See supra para. REF _Ref412449873 \r \h 360 (discussing reliance interests in classification of BIAS). Kaiser Aetna v. United States, 444 U.S. 164 (1979). See supra Section III.D.1. Verizon, 740 F.3d at 659. See supra Section III.C.1.a. See supra Section III.C.1.b. See supra Section III.D. See 5 U.S.C. § 603. 2014 Open Internet NPRM, Appx. B. See Letter from Wireline Competition Bureau, FCC, to Marlene Dortch, Secretary, FCC, GN Docket No. 09-191, WC Docket No. 07-52 (filed Dec. 13, 2010). 5 U.S.C. § 603. The RFA, 5 U.S.C. §§ 601-612 has been amended by the Contract With America Advancement Act of 1996, Public Law No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). Protecting & Promoting the Open Internet, GN Docket No. 14-28, Notice of Proposed Rulemaking, 29 FCC Rcd 5561 (2014) (2014 Open Internet NPRM). See, e.g., Adtran Comments at 43, 47; ACA Comments at 32; National Cable and Telecommunications Association Regulatory Flexibility Act Comments (NCTA RFA Comments); Wireless Internet Service Providers Association Initial Regulatory Flexibility Analysis Comments (WISPA IRFA Comments); NTCA Reply at 18-20; WISPA Reply; Letter from Stephen E. Coran, Counsel to the Wireless Internet Service Providers Association to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, (filed Dec. 8, 2014) (WISPA Dec. 8, 2014 Ex Parte Letter); Letter from Ross J. Lieberman, Senior Vice President of Government Affairs, American Cable Association, Lisa Shoenthaler, Vice President, Association Affairs, National Cable & Telecommunications Association, and Stephen E. Coran, Washington Counsel, Wireless Internet Service Providers Association to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, (filed Jan. 9, 2015) (Trade Associations Jan. 9, 2015 IRFA Ex Parte Letter). See 5 U.S.C. § 604. Verizon, 740 F.3d at 644. Id. See, e.g., CWA & NAACP Comments at 4 (noting that CWA and NAACP agree with the Commission’s assertion that one of the primary reasons there have been limited violations of Internet openness is because the Commission has had policies in place to address misconduct). See supra Section III.A; see also, e.g., Layton Comments at 19. See, e.g., Greenling Institute Comments at 3 (“By rejecting the Commission’s anti-blocking and anti-discrimination rules, the Verizon court has opened up the possibility that without the Commission’s intervention, carriers will determine the winners and losers of the digital world.”). The Verizon court specifically touted the virtuous cycle as a worthy goal and within our authority. Verizon, 740 F.3d at 644 (“The Commission’s finding that Internet openness fosters the edge-provider innovation that drives this ‘virtuous cycle’ was likewise reasonable and grounded in substantial evidence.”). See, e.g., Letter from Forty-Three Municipal Broadband Internet Providers to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, (filed Feb 10, 2015) (Forty-Three Providers’ Feb 10, 2015 Ex Parte Letter); Letter from Barbara S. Esbin, Counsel, American Cable Association to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 (filed Feb 13, 2015) (ACA Feb. 13, 2015 Ex Parte Letter); Letter from Barbara S. Esbin, Counsel for American Cable Association to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 (filed Jan. 28, 2015) (ACA Jan. 28, 2015Ex Parte Letter); Letter from Stephen E. Coran, Counsel to the Wireless Internet Service Providers Association to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 at 8 (filed Feb. 3, 2015) (WISPA Feb. 3, 2015 Ex Parte Letter); WTA Comments. See generally Letter from Winslow L. Sargeant, Ph.D., Chief Counsel for Advocacy, SBA, and Jamie Belcore Saloom, Assistant Chief Counsel for Telecommunications, SBA to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (filed Sep. 25, 2014) (SBA Sep. 25, 2014 Ex Parte Letter). Id. at 2. See Adtran Comments at 43; NCTA RFA Comments at 7; WISPA IRFA Comments at 1, 3, 5; NTCA Reply at 20; WISPA Dec. 8, 2014 Ex Parte Letter at 3; Trade Associations Jan. 9, 2015 IRFA Ex Parte Letter at 2. See, e.g., John Bernadi Reply at 1 (citing concern that as a farmer and a small business owner the rules proposed in the NPRM were insufficiently robust to protect small business interests); WISPA Reply at iv (“If it is true that large broadband providers have the ability to unfairly discriminate against small edge providers, it follows that large edge providers have the ability to unfairly discriminate against small broadband providers. The Commission must consider these two-sided relationships and marketplace realities instead of focusing only on imposing obligations on broadband providers, especially small businesses.”); Etsy Comments at 7 (arguing that a prohibition on commercially unreasonable transactions “creates an unacceptable level of uncertainty for small companies and will be too costly to enforce”); Gerald May Comments at 1 (“I am a small business owner in southern Alabama. I depend on the internet for the majority of my communications needs to include my web site, my email, and phone calls. Giving paid priority net service to large corporations or others that have limitless resources will put small companies like mine at a distinct disadvantage…All small and intermediate businesses will suffer.”). See, e.g., Adtran Comments at 43, ACA Comments at 32-39; Competitive Carrier Association (CCA) Comments at 8-9 (“Expanding the current disclosure requirements would also be particularly burdensome on smaller carriers); WISPA Comments at 15-16; WTA Comments at 8 (“WTA is very concerned about the increased costs and uncertain benefits of the proposed enhanced transparency requirements for smaller carriers and their customers.”); Trade Associations Jan. 9, 2015 IRFA Ex Parte Letter at 4; Letter from Erin P. Fitzgerald, Assistant Regulatory Counsel, Rural Wireless Association, Inc. to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 at 1 (filed Nov. 14, 2014) (RWA Nov. 14, 2014 Ex Parte Letter) (“While RWA members have developed procedures to comply with the Commission’s 2010 transparency and disclosure rules, engaging in a similar endeavor to comply with new and/or more stringent rules would be costly and further strain rural carriers’ limited resources.”); WISPA Feb. 3, 2015 Ex Parte Letter at 8 (“To avoid the significant effects that would result from the Commission's proposed rules, the Commission should exempt small businesses from any new transparency and reporting obligations.”). 2014 Open Internet NPRM, 29 FCC Rcd at 5645, para. 51. See NCTA RFA Comments at 1, 3-4; See generally Etsy Comments; WTA Comments at 7- 9 (detailing concerns with the proposed enhanced transparency requirements); ACA Comments (advocating for the broadband provider businesses of ACA member companies, which total over 800 and represent a diverse mix of cable operators, rural telecommunications companies, and municipalities); CCA Comments; Forty-Three Providers’ Feb 10, 2015 Ex Parte Letter at 2 (expressing concern over the economic impact Title II regulation will have on small and medium-sized ISPs). 2014 Open Internet NPRM, 29 FCC Rcd at 5629, para. 8. See 5 U.S.C. § 603(b)(3). See 5 U.S.C. § 601(6). See 5 U.S.C. § 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.” See 15 U.S.C. § 632. See 5 U.S.C. §§ 601(3)-(6). See SBA, Office of Advocacy, Frequently Asked Questions, http://www.sba.gov/sites/default/files/FAQ_March_2014_0.pdf (last accessed Jan. 25, 2015). 5 U.S.C. § 601(4). Indep. Sector, The New Nonprofit Almanac and Desk Reference (2010). 5 U.S.C. § 601(5). U.S. Census Bureau, Statistical Abstract of the United States: 2012, Section 8, page 267, tbl. 429, https://www.census.gov/compendia/statab/2012/tables/12s0429.pdf/ (data cited therein are from 2007). The 2007 U.S. Census data for small governmental organizations are not presented based on the size of the population in each such organization. There were 89,476 local governmental organizations in 2007. If we assume that county, municipal, township, and school district organizations are more likely than larger governmental organizations to have populations of 50,000 or less, the total of these organizations is 52,095. As a basis of estimating how many of these 89,476 local government organizations were small, in 2011, we note that there were a total of 715 cities and towns (incorporated places and minor civil divisions) with populations over 50,000. City and Town Totals Vintage: 2011 – U.S. Census Bureau, http://www.census.gov/popest/data/cities/totals/2011/index.html. If we subtract the 715 cities and towns that meet or exceed the 50,000 population threshold, we conclude that approximately 88,761 are small. U.S. Census Bureau, Statistical Abstract of the United States: 2012, Section 8, page 267, tbl. 429, https://www.census.gov/compendia/statab/2012/tables/12s0429.pdf/ (data cited therein are from 2007). U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012%20NAICS%20Search. 13 C.F.R. § 121.201, NAICS code 517110. U.S. Census Bureau, 2012 NAICS Definitions, “517919 All Other Telecommunications,”, http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2012%20NAICS%20Search. 13 C.F.R. § 121.201, NAICS code 517919. U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, Table 5, “Establishment and Firm Size: Employment Size of Firms for the United States: 2007 NAICS Code 517110” (issued Nov. 2010). See id. U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,” NAICS code 5179191 (rel. Nov. 19, 2010) (receipts size). 13 C.F.R. § 121.201, NAICS code 517110. Federal Communications Commission, Wireline Competition Bureau, Industry Analysis and Technology Division, Trends in Telephone Service, tbl. 5.3 (Sept. 2010) (Trends in Telephone Service). See Trends in Telephone Service at tbl. 5.3. See id. 13 C.F.R. § 121.201, NAICS code 517110. See Trends in Telephone Service at tbl.5.3. See id. See id. See id. See id. 5 U.S.C. § 601(3). Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to William E. Kennard, Chairman, Federal Communications Commission (filed May 27, 1999). The Small Business Act contains a definition of “small business concern,” which the RFA incorporates into its own definition of “small business.” 15 U.S.C. § 632(a); 5 U.S.C. § 601(3). SBA regulations interpret “small business concern” to include the concept of dominance on a national basis. 13 C.F.R. § 121.102(b). 13 C.F.R. § 121.201, NAICS code 517110. Trends in Telephone Service, tbl. 5.3. 13 C.F.R. § 121.201, NAICS code 517110. Trends in Telephone Service, tbl. 5.3. U.S. Census Bureau, 2012 NAICS Definitions, “517210 Wireless Telecommunications Categories (Except Satellite)”; http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517210&search=2012%20NAICS%20Search. 13 C.F.R. § 121.201, NAICS code 517210 (2012 NAICS). The now-superseded, pre-2007 C.F.R. citations were 13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS). U.S. Census Bureau, Subject Series: Information, Table 5, “Establishment and Firm Size: Employment Size of Firms for the United States: 2007 NAICS Code 517210” (issued Nov. 2010). See id. Amendment of the Commission’s Rules to Establish Part 27, the Wireless Communications Service (WCS), GN Docket No. 96-228, Report and Order, 12 FCC Rcd 10785, 10879, para. 194 (1997). See Letter from Aida Alvarez, Administrator, SBA, to Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission (filed Dec. 2, 1998) (Alvarez Letter 1998). 47 C.F.R. § 2.106; see generally 47 C.F.R. §§ 27.1-27.70. 13 C.F.R. § 121.201, NAICS code 517210. Id. Trends in Telephone Service, tbl. 5.3. Id. See Amendment of Parts 20 and 24 of the Commission’s Rules – Broadband PCS Competitive Bidding and the Commercial Mobile Radio Service Spectrum Cap; Amendment of the Commission’s Cellular/PCS Cross-Ownership Rule; WT Docket No. 96-59, GN Docket No. 90-314, Report and Order, 11 FCC Rcd 7824, 7850-52, paras. 57-60 (1996) (PCS Report and Order); see also 47 C.F.R. § 24.720(b). See PCS Report and Order, 11 FCC Rcd at 7852, para. 60. See Alvarez Letter 1998. See Broadband PCS, D, E and F Block Auction Closes, Public Notice, Doc. No. 89838 (rel. Jan. 14, 1997). See C, D, E, and F Block Broadband PCS Auction Closes, Public Notice, 14 FCC Rcd 6688 (WTB 1999). Before Auction No. 22, the Commission established a very small standard for the C Block to match the standard used for F Block. Amendment of the Commission’s Rules Regarding Installment Payment Financing for Personal Communications Services (PCS) Licensees, WT Docket No. 97-82, Fourth Report and Order, 13 FCC Rcd 15743, 15768, para. 46 (1998). See C and F Block Broadband PCS Auction Closes; Winning Bidders Announced, Public Notice, 16 FCC Rcd 2339 (2001). See Broadband PCS Spectrum Auction Closes; Winning Bidders Announced for Auction No. 58, Public Notice, 20 FCC Rcd 3703 (2005). See Auction of Broadband PCS Spectrum Licenses Closes; Winning Bidders Announced for Auction No. 71, Public Notice, 22 FCC Rcd 9247 (2007). Id. See Auction of AWS-1 and Broadband PCS Licenses Closes; Winning Bidders Announced for Auction 78, Public Notice, 23 FCC Rcd 12749 (WTB 2008). Id. 47 C.F.R. § 90.814(b)(1). Id. See Letter from Aida Alvarez, Administrator, SBA, to Thomas Sugrue, Chief, Wireless Telecommunications Bureau, Federal Communications Commission (filed Aug. 10, 1999) (Alvarez Letter 1999). See Correction to Public Notice DA 96-586 “FCC Announces Winning Bidders in the Auction of 1020 Licenses to Provide 900 MHz SMR in Major Trading Areas,” Public Notice, 18 FCC Rcd 18367 (WTB 1996). See Multi-Radio Service Auction Closes, Public Notice, 17 FCC Rcd 1446 (WTB 2002). See 800 MHz Specialized Mobile Radio (SMR) Service General Category (851–854 MHz) and Upper Band (861–865 MHz) Auction Closes; Winning Bidders Announced, Public Notice, 15 FCC Rcd 17162 (2000). See 800 MHz SMR Service Lower 80 Channels Auction Closes; Winning Bidders Announced, Public Notice, 16 FCC Rcd 1736 (2000). See generally 13 C.F.R. § 121.201, NAICS code 517210. See Reallocation and Service Rules for the 698–746 MHz Spectrum Band (Television Channels 52–59), GN Docket No. 01-74, Report and Order, 17 FCC Rcd 1022 (2002) (Channels 52–59 Report and Order). See id. at 1087-88, para. 172. See id. See id., at 1088, para. 173. See Alvarez Letter 1999. See Lower 700 MHz Band Auction Closes, Public Notice, 17 FCC Rcd 17272 (WTB 2002). See id. See id. Service Rules for the 698–746, 747–762 and 777–792 MHz Band; Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-Compatible Telephones; Biennial Regulatory Review—Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services; Former Nextel Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission’s Rules; Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year 2010; Declaratory Ruling on Reporting Requirement under Commission’s Part 1 Anti-Collusion Rule, WT Docket Nos. 07-166, 06-169, 06-150, 03-264, 96-86, PS Docket No. 06-229, CC Docket No. 94-102, Second Report and Order, 22 FCC Rcd 15289, 15359 n. 434 (2007) (700 MHz Second Report and Order). See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (WTB 2008). 700 MHz Second Report and Order, 22 FCC Rcd 15289. See Auction of 700 MHz Band Licenses Closes, Public Notice, 23 FCC Rcd 4572 (WTB 2008). See Service Rules for the 746–764 MHz Bands, and Revisions to Part 27 of the Commission’s Rules, WT Docket No. 99-168, Second Report and Order, 15 FCC Rcd 5299 (2000) (746–764 MHz Band Second Report and Order). See id. at 5343, para. 108. See id. See id. at 5343, para. 108 n.246 (for the 746–764 MHz and 776–794 MHz bands, the Commission is exempt from 15 U.S.C. § 632, which requires Federal agencies to obtain SBA approval before adopting small business size standards). See 700 MHz Guard Bands Auction Closes: Winning Bidders Announced, Public Notice, 15 FCC Rcd 18026 (WTB 2000). See 700 MHz Guard Bands Auction Closes: Winning Bidders Announced, Public Notice, 16 FCC Rcd 4590 (WTB 2001). 13 C.F.R. § 121.201, NAICS codes 517210. Amendment of Part 22 of the Commission’s Rules to Benefit the Consumers of Air-Ground Telecommunications Services, Biennial Regulatory Review—Amendment of Parts 1, 22, and 90 of the Commission’s Rules, Amendment of Parts 1 and 22 of the Commission’s Rules to Adopt Competitive Bidding Rules for Commercial and General Aviation Air-Ground Radiotelephone Service, WT Docket Nos. 03-103, 05-42, Order on Reconsideration and Report and Order, 20 FCC Rcd 19663, paras. 28-42 (2005). Id. See Letter from Hector V. Barreto, Administrator, SBA, to Gary D. Michaels, Deputy Chief, Auctions and Spectrum Access Division, Wireless Telecommunications Bureau, Federal Communications Commission (filed Sept. 19, 2005). The service is defined in section 90.1301 et seq. of the Commission’s Rules, 47 C.F.R. § 90.1301 et seq. See Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, Report and Order, 18 FCC Rcd 25162, Appx. B (2003), modified by Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket No. 02-353, Order on Reconsideration, 20 FCC Rcd 14058, Appx. C (2005); Service Rules for Advanced Wireless Services in the 1915–1920 MHz, 1995–2000 MHz, 2020–2025 MHz and 2175–2180 MHz Bands; Service Rules for Advanced Wireless Services in the 1.7 GHz and 2.1 GHz Bands, WT Docket Nos. 04-356, 02-353, Notice of Proposed Rulemaking, 19 FCC Rcd 19263, Appx. B (2005); Service Rules for Advanced Wireless Services in the 2155–2175 MHz Band, WT Docket No. 07-195, Notice of Proposed Rulemaking, 22 FCC Rcd 17035, Appx. (2007). See 47 C.F.R. Part 101, Subparts C and I. See 47 C.F.R. Part 101, Subparts C and H. Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission’s Rules. See 47 C.F.R. Part 74. Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliary microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between two points such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which relay signals from a remote location back to the studio. See 47 C.F.R. Part 101, Subpart L. See 47 C.F.R. Part 101, Subpart G. See id. See 47 C.F.R. §§ 101.533, 101.1017. 13 C.F.R. § 121.201, NAICS code 517210. 13 C.F.R. § 121.201, NAICS code 517210 (2007 NAICS). The now-superseded, pre-2007 C.F.R. citations were 13 C.F.R. § 121.201, NAICS codes 517211 and 517212 (referring to the 2002 NAICS). Amendment of Parts 21 and 74 of the Commission’s Rules with Regard to Filing Procedures in the Multipoint Distribution Service and in the Instructional Television Fixed Service and Implementation of Section 309(j) of the Communications Act—Competitive Bidding, MM Docket No. 94-131, PP Docket No. 93-253, Report and Order, 10 FCC Rcd 9589, 9593, para. 7 (1995). 47 C.F.R. § 21.961(b)(1). 47 U.S.C. § 309(j). Hundreds of stations were licensed to incumbent MDS licensees prior to implementation of Section 309(j) of the Communications Act of 1934, 47 U.S.C. § 309(j). For these pre-auction licenses, the applicable standard is SBA’s small business size standard of 1500 or fewer employees. Auction of Broadband Radio Service (BRS) Licenses, Scheduled for October 27, 2009, Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments, and Other Procedures for Auction 86, AU Docket No. 09-56, Public Notice, 24 FCC Rcd 8277 (2009). Id. at 8296 para. 73. Auction of Broadband Radio Service Licenses Closes, Winning Bidders Announced for Auction 86, Down Payments Due November 23, 2009, Final Payments Due December 8, 2009, Ten-Day Petition to Deny Period, Public Notice, 24 FCC Rcd 13572 (2009). The term “small entity” within SBREFA applies to small organizations (nonprofits) and to small governmental jurisdictions (cities, counties, towns, townships, villages, school districts, and special districts with populations of less than 50,000). 5 U.S.C. §§ 601(4)-(6). We do not collect annual revenue data on EBS licensees. U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” (partial definition), http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012. 13 C.F.R. § 121.201, NAICS code 517110. U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, Receipts by Enterprise Employment Size for the United States: 2007, NAICS code 517510 (rel. Nov. 19, 2010). Id. 13 C.F.R. § 121.201, NAICS Code 517410. 13 C.F.R. § 121.201, NAICS Code 517919. U.S. Census Bureau, 2012 NAICS Definitions, “517410 Satellite Telecommunications,” http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517410&search=2012. U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,” NAICS code 517410 (rel. Nov. 19, 2010). Id. U.S. Census Bureau, 2012 NAICS Definitions, “517919 All Other Telecommunications,” http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517919&search=2012. U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,” NAICS code 517410 (rel. Nov. 19, 2010). Id. U.S. Census Bureau, 2012 NAICS Definitions, “517110 Wired Telecommunications Carriers,” (partial definition), http://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517110&search=2012. 13 C.F.R. § 121.201, NAICS code 517110. U.S. Census Bureau, 2007 Economic Census, Subject Series: Information, “Establishment and Firm Size,” NAICS code 517110 (rel. Nov. 19, 2010). Id. 47 C.F.R. § 76.901(e). The Commission determined that this size standard equates approximately to a size standard of $100 million or less in annual revenues. Implementation of Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and Order and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408 (1995). NCTA, Industry Data, Number of Cable Operating Companies (June 2012), http://www.ncta.com/Statistics.aspx (visited Sept. 28, 2012). Depending upon the number of homes and the size of the geographic area served, cable operators use one or more cable systems to provide video service. See Annual Assessment of the Status of Competition in the Market for Delivery of Video Programming, MB Docket No. 12-203, Fifteenth Report, 28 FCC Rcd 10496, 10505-06, para. 24 (2013) (15th Annual Competition Report). See SNL Kagan, “Top Cable MSOs – 12/12 Q”, http://www.snl.com/InteractiveX/TopCableMSOs.aspx?period=2012Q4&sortcol=subscribersbasic&sortorder=desc. We note that, when applied to an MVPD operator, under this size standard (i.e., 400,000 or fewer subscribers) all but 14 MVPD operators would be considered small. See NCTA, Industry Data, Top 25 Multichannel Video Service Customers (2012), http://www.ncta.com/industry-data. The Commission applied this size standard to MVPD operators in its implementation of the CALM Act. See Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act, MB Docket No. 11-93, Report and Order, 26 FCC Rcd 17222, 17245-46, para. 37 (2011) (CALM Act Report and Order) (defining a smaller MVPD operator as one serving 400,000 or fewer subscribers nationwide, as of December 31, 2011). 47 C.F.R. § 76.901(c). The number of active, registered cable systems comes from the Commission’s Cable Operations and Licensing System (COALS) database on Aug. 28, 2013. A cable system is a physical system integrated to a principal headend. 47 U.S.C. § 543(m)(2); see 47 C.F.R. § 76.901(f) & nn.1-3. 47 C.F.R. § 76.901(f); see FCC Announces New Subscriber Count for the Definition of Small Cable Operator, Public Notice, 16 FCC Rcd 2225 (Cable Services Bureau 2001). See NCTA, Industry Data, Top 25 Multichannel Video Service Customers (2012), http://www.ncta.com/industry-data. The Commission does receive such information on a case-by-case basis if a cable operator appeals a local franchise authority’s finding that the operator does not qualify as a small cable operator pursuant to § 76.901(f) of the Commission’s rules. See 47 C.F.R. § 76.909(b). U.S. Census Bureau, 2002 NAICS Definitions, “2211 Electric Power Generation, Transmission and Distribution,” http://www.census.gov/epcd/naics02/def/NDEF221.HTM (last visited Oct. 21, 2009). 13 C.F.R. § 121.201, NAICS codes 221111, 221112, 221113, 221119, 221121, 221122, n. 1. See U.S. Census Bureau, American FactFinder, Utilities: Subject Series - Establishment and Firm Size: Summary Statistics by Revenue Size of Firms for the United States: 2007, NAICS code 221122, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_22SSSZ5&prodType=table (last visited February 4, 2014). See id. 8 C.F.R. § 8.3. We note that although we have sought comment on what format would be most effective, the record is lacking on specific details as to how such a disclosure should be formatted. 5 U.S.C. § 603(c). See, e.g., Tumblr Reply at 10 (“Tumblr cannot afford to engage in what would likely be multi-year challenges against the biggest broadband providers, with large legal teams experienced in telecommunications law, simply to secure access for its users equal to that of its current, and future, competitors with deeper resources.”); Etsy Comments at 7 (arguing that a prohibition on commercially unreasonable transactions “creates an unacceptable level of uncertainty for small companies and will be too costly to enforce”); Reddit Comments at 8; Engine Advocacy Comments at 15; CodeCombat Comments at 7. See, e.g., Illinois and NY Comments at 5-8; CCIA Reply at 17; i2Coaltion Comments at 10 (“Start-ups that require priority service may not be able to bring their product to market without significant outside investment and investors will be affected by the increased equity needs of entrepreneurs.”); AAJC Comments at 5 (“A commercially reasonable standard where certain forms of prioritization are allowed benefits those with financial resources. Such prioritization would negatively impact many minority entrepreneurs who come from historically disadvantaged communities with lower incomes and educational opportunities . . . .”). Based on the record before us, we were persuaded that adopting a legal standard prohibiting commercially unreasonable practices is not the most effective or appropriate approach for protecting and promoting an open Internet. See supra Section III.C.2.c See supra Section. REF _Ref410902233 \r \h \* MERGEFORMAT III.C.2.a. See, e.g., NetAccess Futures Comments at 28 (“‘Lightweight’ procedures and structures like . . . improved informal complaints processes . . . appear to be preferable to the Commission’s existing ‘heavyweight’ enforcement and dispute resolution processes.”); WISPA Comments at 35-37 (advocating for use of the informal complaint process). See supra Section III.E.2.b. See, e.g., AAJC Comments at 1 (noting that “[i]n most cases, consumers must pay filing fees and the arbitrator’s costs, which can amount to thousands of dollars,” and the provider can select the arbitration location, making the process even costlier; further noting that arbitrated decisions are not reviewable and often not public, precluding consumers from uncovering potential biases in the process); Public Citizen and NACA Comments at 1-2; see also supra Section III.E.3.b. For example, we do not require disclosure of the source of congestion due to the difficulty in determining the source, and the corresponding additional burden in requiring that information to be disclosed. See, e.g., ACA Comments at 32-39; Competitive Carrier Association (CCA) Comments at 8-9 (“Expanding the current disclosure requirements would also be particularly burdensome on smaller carriers); WISPA Comments at 15-16; WTA Comments at 8 (“WTA is very concerned about the increased costs and uncertain benefits of the proposed enhanced transparency requirements for smaller carriers and their customers.”); Letter from Erin P. Fitzgerald, Assistant Regulatory Counsel, Rural Wireless Association, Inc. to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 at 1 (filed Nov. 14, 2014) (RWA Nov. 14, 2014 Ex Parte Letter) (“While RWA members have developed procedures to comply with the Commission’s 2010 transparency and disclosure rules,[footnote omitted] engaging in a similar endeavor to comply with new and/or more stringent rules would be costly and further strain rural carriers’ limited resources.”); Letter from Stephen E. Coran, Counsel to the Wireless Internet Service Providers Association to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28 at 8 (filed Feb. 3, 2015) (“To avoid the significant effects that would result from the Commission's proposed rules, the Commission should exempt small businesses from any new transparency and reporting obligations.”). See ACA Comments at 39-40 (“any enhanced disclosure rule regarding network congestion . . . should exclude ‘small providers’”). Letter from Barbara Esbin, Counsel for ACA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 6 (filed Feb. 2, 2015) (ACA Feb. 2, 2015 Ex Parte Letter). The Order adopts a temporary exemption from the enhancements to the transparency rule for those providers of broadband Internet access service (whether fixed or mobile) with 100,000 or fewer broadband subscribers as per their most recent form 477, aggregated over all the providers’ affiliates. At a minimum, this would give small providers and others a way to ensure that they are in compliance with our rules. See, e.g., Forty-Three Providers’ Feb 10, 2015 Ex Parte Letter at 2 (“[A]doption of the proposed enhanced transparency requirements, including . . . real-time congestion on our networks, could be significantly burdensome for providers of our size without providing any real benefit to edge providers or consumers.”); Charter Comments at 27 (“Because ISPs can monitor only a portion of the transmission path between a consumer and an edge provider, the information that could be collected would be of limited usefulness and inequitably burden the ISP relative to other potential sources of congestion.”); WISPA Reply at 9 (“Without question, small broadband providers would be forced to incur increased costs to comply with rules that would require multiple disclosures and detailed statements concerning congestion and reporting obligations.”); WTA Comments at 8 (“WTA is very concerned about the increased costs and uncertain benefits of the proposed enhanced transparency requirements for small carriers and their customers. For example, the monitoring and test equipment necessary to measure and report on a frequent or constant basis . . . latency, packet loss, packet corruption and/or jitter on a RLEC or other small provider's network can cost as much as the underlying data transmission equipment deployed to provide the broadband service.”). See, e.g., ACA Feb. 13, 2015 Ex Parte Letter at 2 (expressing concern with “proposals to require detailed Open Internet disclosures tailored to the needs of edge providers and the lack of demonstrable benefits that would accrue from such reporting”); ACA Jan. 28, 2015Ex Parte Letter at 4 (explaining that disclosures tailored to edge providers “would require small ISPs, who manage their own networks and may only have a handful of network operators, engineers, and head end staff to make onerous expenditures of both personnel hours and financial resources”); Bright House Comments at 14 (questioning “the feasibility of creating disclosures tailored to the varied and potentially unique needs of the hundreds of such providers, particularly with no reciprocal obligation”). 5 U.S.C. § 801(a)(1)(A). See id. § 604(b). New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See Letter from Michael R. Romano, Senior Vice President Policy, NTCA, to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28; CC Docket No. 96-45; WC Docket No. 06-122, at 2 (Feb. 13, 2015) (“NTCA and NECA urged the Commission to ensure that small rural telcos such as those within their respective memberships can continue to avail themselves of the option to tariff broadband-capable transmission services that underpin retail broadband Internet access services.”). Communications Act of 1934, as amended, § 230(b)(2). The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet, https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014). The Order bans paid prioritization, and as the Verizon court put it: “In requiring that all edge providers receive this minimum level of access for free, these rules would appear on their face to impose per se common carrier obligations with respect to that minimum level of service.” Verizon v. FCC, 740 F.3d 623, 658 (D.C. Cir. 2014). Setting a prospective rate of zero for a service is the very definition of ex ante rate regulation. Order at paras. 449–50. Communications Act § 201(a), (b). Order at para. 455. See Communications Act § 503(b)(5). See 47 C.F.R. § 1.89. See Communications Act § 503(b)(4). See Communications Act § 503(b). See Communications Act § 312(b). See 47 C.F.R. § 1.91. See Communications Act § 501. Order at paras. 441, 443, 447, 451, 452. Order at para. 452; see Order at para. 451 (“[W]e do not and cannot envision adopting new ex ante rate regulation of broadband Internet access service in the future”). Order at note 1352. Order at para. 330. Order at paras. 133–53. Order at paras. 152–53. See, e.g., Susan Crawford, Zero for Conduct, Medium (Jan. 7, 2015) (“Zero-rating . . . is absolutely inappropriate. It makes certain kinds of traffic exempt from any data cap at all, or creates a synthetic ‘online’ experience for users that isn’t the Internet. . . . [Z]ero rating is not just a competition issue. It’s also a human rights issue. Saying that walled gardens are “good enough” for poorer people is clearly destructive. . . . All compromise is based on give and take. But when it comes to fundamentals — including the earth-shaking idea of the Internet, which has made possible for the first time an open, global, interoperable platform for communications — there can be no compromise.”), available at http://bit.ly/14xVnUT. Order at para. 152. Order at para. 153. Order at paras. 139, 140, 141, 142, 143, 144, 145. Corynne McSherry, Electronic Frontier Foundation, Dear FCC: Rethink The Vague “General Conduct” Rule (Feb. 24, 2015), available at http://bit.ly/1AIJrKU; see also Letter from Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-191, 14-28 (Feb. 19, 2015) (“The Commission has an important role to play in promulgating ‘rules of the road’ for broadband, but that role should be narrow and firmly bounded. We fear the proposed ‘general conduct rule’ may meet neither criteria. Accordingly, if the Commission intends to adopt a ‘general conduct rule’ it should spell out, in advance, the contours and limits of that rule, and clarify that the rule shall be applied only in specific circumstances.”), available at http://go.usa.gov/3cP53. February 2015 Open Meeting Press Conference of Chairman Tom Wheeler (Feb. 26, 2015), available at http://www.fcc.gov/events/open-commission-meeting-february-2015 (165:30-166:51). Order at para. 138. See, e.g., Nilay Patel, We won the internet back, The Verge (Feb. 4, 2015), available at http://bit.ly/1C17xB5. Communications Act § 201(a). Order at para. 526. Order at para. 462. Order at para. 5. See, e.g., Order at note 1487. Order at paras. 497 (additional rate regulation and tariffing), 500 (same), 501 (same), 502 (same), 508 (administrative filing requirements and accounting standards), 510 (entry and exit regulation), 513 (last-mile unbundling and resale). Order at paras. 470, 488. Order at para. 451; see also Order at paras. 452, 508. Order at para. 488 (quoting Communications Act § 254(d)). See, e.g., Order at para. 489 (“We therefore conclude that limited forbearance is warranted at the present time in order to allow the Commission to consider the issues presented based on a full record in that docket.”). Order at para. 490. Order at note 1471. See, e.g., Vermont Public Radio, Under New FCC Standard, 30 Percent Of Vermonters Now Lack Broadband (Feb. 3, 2015) (“One of the things that would come along with [reclassification] is the ability to assess a universal service fee on broadband services. . . . If that happens, the money might be there to fund these higher speeds.”), available at http://digital.vpr.net/post/under-new-fcc-standard-30-percent-vermonters-now-lack-broadband. Order at para. 489. Modernizing the E-Rate Program for Schools and Libraries, WC Docket No. 13-184, Report and Order and Further Notice of Proposed Rulemaking, 29 FCC Rcd 8870, 9042 (2014) (Dissenting Statement of Commissioner Ajit Pai); see also http://youtu.be/6LDko49R9YM. Modernizing the E-Rate Program for Schools and Libraries; Connect America Fund, WC Docket Nos. 13-184, 10-90, Second Report and Order and Order on Reconsideration, FCC 14-189 (rel. Dec. 19, 2014) (Dissenting Statement of Commissioner Ajit Pai), available at http://go.usa.gov/3cpm4. In fact, broadband taxes may go up even further than this should the FCC revisit its decision to forbear from requiring contributions to the Telecommunications Relay Service (TRS) Fund. See Order at para. 470 (“[F]or now we do forbear in part from the application of TRS contribution obligations that otherwise would newly apply to broadband Internet access service”) (emphasis added). There, too, the fix may be in. See id. (“Applying new TRS contribution requirements on broadband Internet access potentially could spread the base of contributions to the TRS Fund, having the benefit of adding to the stability of the TRS Fund. Nevertheless, before taking any steps that would depart from the status quo in this regard, the Commission would like to assess the need for such additional funding, and the appropriate contribution level.”). Letter from Kim Keenan, President & Chief Executive Officer, MMTC, to the Honorable Tom Wheeler, Chairman, FCC, et al., GN Docket No. 14-28, at 3 (Feb. 18, 2015) (“Title II regulation, even when ostensibly administered with a lighter touch, will likely have unintended consequences on broadband adoption for people of color, the disabled, the economically disadvantaged, rural residents, and seniors.”), available at http://apps.fcc.gov/ecfs/document/view?id=60001030899. See, e.g., ACA Comments at 60–66; Alcatel-Lucent Comments at 2; AT&T Comments at 51–53; CenturyLink Comments at 5–6; Charter Comments at 13, 15–16; Cisco Comments at 27; Comcast Comments at 46–50; Cox Comments at 34–36; CTIA Comments at 46–48; Ericsson Comments at 12; Frontier Comments at 2–4; Qualcomm Comments at 4–7; Verizon Comments at 57; Letter from Matthew A. Brill, Counsel for National Cable & Telecommunications Association, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 3–5 (Dec. 23, 2014); Letter from Patrick S. Brogan, USTelecom to Marlene Dortch, Secretary, FCC, GN Docket No. 14-28 (Nov. 19, 2014) (attaching Kevin A. Hassett & Robert J. Shapiro, Sonecon, The Impact of Title II Regulation of Internet Providers on Their Capital Investment (Nov. 2014)); Letter from Laurence Brett Glass, d/b/a LARIAT to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28, at 1 (Jan. 9, 2015); Letter from John Mayo, Exec. Director, Georgetown Center for Business and Public Policy to Marlene H. Dortch, Secretary, FCC, GN Docket No. 14-28 (Jan. 16, 2015) (attaching Anna-Maria Kovacs, Regulatory Uncertainty: The FCC’s Open Internet Docket (Jan. 2015)); Martin H. Thelle & Dr. Bruno Basalisco, Copenhagen Economics, Europe Can Catch Up With the US: A Contrast of Two Contrary Broadband Models (June 2013), available at http://bit.ly/1zJritJ. Christopher S. Yoo, U.S. vs. European Broadband Deployment: What Do the Data Say? Penn Law Center for Technology, Innovation and Competition, at 4–5, 13, 23 (June 2014), available at http://apps.fcc.gov/ecfs/document/view?id=7521285448; CISCO, VNI Mobile Forecast Highlights, 2014-2019 (compare the average mobile connection speed in the United States of 2,619 kbps with the 2,037 kbps average mobile connection speed in Western Europe), available at http://www.cisco.com/assets/sol/sp/vni/forecast_highlights_mobile/index.html#~Country; see also Roger Entner, Spectrum Fuels Speed and Prosperity, Recon Analytics (Sep. 2014), available at http://apps.fcc.gov/ecfs/document/view?id=60000870483; Letter from Scott K. Bergmann, Vice President – Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 (Feb. 10, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001028379; Letter from Scott K. Bergmann, Vice President – Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28 (Oct. 2, 2014), available at http://apps.fcc.gov/ecfs/document/view?id=60000870404. Letter from Antonio López Istúriz-White MEP, Secretary General, European People’s Party, to the Editor, Financial Times (Feb. 22, 2015), available at http://on.ft.com/1DViF4r. Order at para. 138. Order at para. 410. Communications Act § 207. Order at para. 455 (noting the importance of the “doctrine of primary jurisdiction” but declining to forbear from applying section 207 to Internet service providers). See, e.g., Letter from Steven F. Morris, Vice President and Associate General Counsel, National Cable & Telecommunications Association, GN Docket No. 14-28, WC Docket No. 07-245, at 2 (Jan. 22, 2015), available at http://go.usa.gov/3cppB. Order at para. 482. Letter from Thomas Cohen & Edward A. Yorkgitis, Jr., Counsel for American Cable Association, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, 09-51, WC Docket No. 07-245, at 2 (Jan. 20, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001014745. Letter from James Assey, Executive Vice President, National Cable & Telecommunications Association, to Jonathan Sallet, General Counsel, FCC, GN Docket Nos. 14-28, 10-127, at 2 (Dec. 2, 2014), available at http://apps.fcc.gov/ecfs/document/view?id=60000989301. Id. at 3–4. Order at para. 430 (quoting Internet Tax Freedom Act § 1101(a)(1), Pub. L. 105-277, 112 Stat. 2681, 2719 (1998), and citing Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 624, 128 Stat. 2130, 2377 (2014)). Letter from James Assey, Executive Vice President, National Cable & Telecommunications Association, to Jonathan Sallet, General Counsel, FCC, GN Docket Nos. 14-28, 10-127, at 3 (Dec. 2, 2014). Hal Singer & Robert Litan, No Guarantees When It Comes to Telecom Fees, Progressive Policy Institute Blog, at FN5 (Dec. 16, 2014) (estimating annual taxes and fees of $11 billion assuming the Internet Tax Freedom Act is made permanent), available at http://bit.ly/1AcraGq; Robert Litan & Hal Singer, Outdated Regulations Will Make Consumers Pay More for Broadband, Progressive Policy Institute Policy Brief, at 1 (Dec. 1, 2014) (estimating annual taxes and fees of $15 billion assuming the Internet Tax Freedom Act expires), available at http://bit.ly/1wcR7VX. Remarks of FCC Commissioner Ajit Pai at TechFreedom’s Forum on the 100th Anniversary of the Kingsbury Commitment (Dec. 19, 2013), available at http://go.usa.gov/3cKdk. Small Business Administration Office of Advocacy, Fact Sheet: Advocacy Submits Comments to the Federal Communications Commission regarding Small Business Engagement and Regulatory Flexibility Act Compliance, http://go.usa.gov/3cKdP (Sept. 25, 2014); Letter from Winslow L. Sargeant, Ph.D., Chief Counsel, Office of Advocacy, U.S. Small Business Administration, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 13-5, 12-353, WC Docket Nos. 05-25, 10-90, RM-10593 (Sept. 25, 2014), available at http://go.usa.gov/3cKsm. Testimony of Joe Portman, President and Founder, Alamo Broadband Inc., Elmendorf, Texas, at the Texas Forum on Internet Regulation, at 1 (Oct. 21, 2014), available at http://go.usa.gov/3cpPe. Id. at 2. See Wave Wireless, About Us, http://www.wavewls.com/about-us.html. Ray Nolting, Proposed regulations concern business, FCC commissioner, Parsons Sun (Feb. 21, 2015), available at http://bit.ly/1JOoplx. Letter from Dustin Surran, Aerux.com, Castle Rock, Colorado, Bryan Robinson, Affordable Internet Solutions, Waverly, Nebraska, and 140 other WISPs to the Honorable Thomas Wheeler, Chairman, FCC, GN Docket No. 14-28 (Feb. 19, 2015), available at http://go.usa.gov/3c8rH. Letter from Robert J. Dunker, Owner/President, Atwood Cable Systems, Inc., Atwood, Kansas, Richard A. Nowak, Owner/President, Bellaire TV Cable Company, Bellaire, Ohio, and 22 other small ISPs to the Honorable Thomas Wheeler, Chairman, FCC, GN Docket Nos. 14-28, 10-127 (Feb. 17, 2015), available at http://go.usa.gov/3cpPw. Letter from Randy Darwin Tilk, Utility Manager, Alta Municipal Broadband Communications, Alta, Iowa, Loras Herrig, City Administrator, Bellevue Municipal Cable, Bellevue, Iowa, and 41 other municipal ISPs to the Honorable Thomas Wheeler, Chairman, FCC, GN Docket Nos. 14-28, 10-127, at 1 (Feb. 10, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001028442. Id. at 1. Id. at 2. See Editorial, Obama’s Favorite Internet Company, The Wall Street Journal (Feb. 5, 2015), available at http://on.wsj.com/1KnkoBh; Matthew Patane, Obama-touted Iowa utility balks at FCC Internet plan, Des Moines Register (Feb. 5, 2015), available at http://dmreg.co/1zg2VCS. Small Business & Entrepreneurship Council Comments at 2. National Black Chamber of Commerce et al. Comments at 2. Letter from Ross J. Lieberman, Senior Vice President of Government Affairs, American Cable Association, Lisa Schoenthaler, Vice President for Association Affairs Office of Rural/Small Systems, and Stephen E. Coran, Counsel for the Wireless Internet Service Providers Association, to the Honorable Tom Wheeler, Chairman, FCC, GN Docket No. 14-28, at 1 (Jan. 9, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001012562. Order at para. 8. Order at para. 20. Order at para. 83. Order at para. 127. Order at para. 200. Protecting & Promoting the Open Internet, GN Docket No. 14-28, Notice of Proposed Rulemaking, 29 FCC Rcd 5561, 5656 (2014) (Notice) (Dissenting Statement of Commissioner Ajit Pai), available at http://go.usa.gov/3cpEj. Gautham Nagesh & Brody Mullins, Net Neutrality: How White House Thwarted FCC Chief, Wall Street Journal, (Feb. 4, 2015), available at http://on.wsj.com/16FXTcH. Id. Id.; see also Gautham Nagesh, FCC ‘Net Neutrality’ Plan Calls for More Power Broadband: Chairman Tom Wheeler Considers Hybrid Approach to Internet Access, Wall Street Journal (Oct. 30, 2014) (“Mr. Wheeler is close to settling on a hybrid approach, people close to the chairman say.”), available at http://on.wsj.com/1ES0YkT. See The Center For Rights, d/b/a Fight for the Future Education Fund, Form 990, Schedule A (2013–14) (self-characterizing group as “[a]n organization that normally receives a substantial part of its support from a governmental unit or the general public” and listing over $1 million in taxpayer support between 2011 and 2013). Kerry Picket, Obama’s Move to Regulate Internet Has Activists’ “Fingerprints All Over It,” The Daily Caller, (Feb. 23, 2015), available at http://bit.ly/1zg6pFj. Id. Id. See The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet, https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014). See, e.g., Letter from Austin C. Schlick, Director, Communications Law, Google Inc., to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127 (Feb. 20, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001032150; Letter from Corynne McSherry, Intellectual Property Director, Electronic Frontier Foundation, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 09-191, 14-28 (Feb. 19, 2015), available at http://apps.fcc.gov/ecfs/document/view?id=60001031536. The Progressive Policy Institute, Press Release, New Survey Finds Americans Skeptical that FCC Regulation of the Internet Will Be Helpful; Favor More Disclosure (Feb. 19, 2015), available at http://bit.ly/1FyPKoO. Notice, 29 FCC Rcd at 5569, para. 23 (citing Verizon v. FCC, 740 F.3d 623, 656–59 (D.C. Cir. 2014)). Notice, 29 FCC Rcd at 5569, para. 24. Notice, 29 FCC Rcd at 5647 (Statement of Chairman Tom Wheeler). Notice, 29 FCC Rcd at 5627 (Proposed Rule § 8.11(a)). Notice, 29 FCC Rcd at 5595, para. 95. Notice, 29 FCC Rcd at 5596, Section III.D.3 (capitalizations omitted); see Notice 29 FCC Rcd at 5596–98, paras. 97–104 (discussing the proposed minimum-level-of-access requirement). Notice, 29 FCC Rcd at 5595, para. 95. Notice, 29 FCC Rcd at 5596, para. 97. Notice, 29 FCC Rcd at 5599–5600, para. 111. Notice, 29 FCC Rcd at 5599, para. 110. Notice, 29 FCC Rcd at 5602, para. 116. Notice, 29 FCC Rcd at 5602, para. 118. Notice, 29 FCC Rcd at 5599, Subpart III.E (capitalizations omitted); see also Notice, 29 FCC Rcd at 5602–10, paras. 116–41 (discussing the proposed no-commercially-unreasonable-practices rule). Notice, 29 FCC Rcd at 5610, para. 142. Notice, 29 FCC Rcd at 5625, para. 183 (“Accordingly, IT IS ORDERED, pursuant to sections 1, 2, 4(i)–(j), 303 and 316 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, as amended, 47 U.S.C. §§ 151, 152, 154(i)–(j), 303, 316, 1302, that this Notice of Proposed Rulemaking IS ADOPTED.”). Title II of the Act consists of sections 201 through 276, 47 U.S.C. §§ 201–276. Compare 47 C.F.R. Part 8 (“Authority: 47 U.S.C. secs. 151, 152, 153, 154, 201, 218, 230, 251, 254, 256, 257, 301, 303, 304, 307, 309, 316, 332, 403, 503, 522, 536, 548, 1302.”), with Notice, 29 FCC Rcd at 5626 (“Part 8 of Title 47 of the Code of Federal Regulations is amended to read as follows: . . . AUTHORITY: 47 U.S.C. §§ 151, 152, 154(i)–(j), 303, 316, 1302.”). Note that section 706 of the Telecommunications Act has been unofficially codified at 47 U.S.C. § 1302. See Notice, 29 FCC Rcd at 5564, n.11; 5569, nn.42–48; 5571, nn.58–59; 5574, n.88; 5576, nn.97–100; 5577, n.101; 5579, nn. 111, 114; 5580, n.122; 5581, n.125; 5585, n.153; 5593, n.200; 5594, nn.206–12; 5595, n.213; 5596, nn.219, 221, 223; 5599, n.231; 5600, nn.236–37; 5601, nn.238–39, 241–42; 5602, nn.244–47; 5608, n.270; 5610, n.282; 5612, nn.291–94; 5613, n.296; 5615, n.309. Notice, 29 FCC Rcd at 5626–27 (Appendix A: Proposed Rules). Although the general Internet conduct rule does claim that it should not be read to constitute common carriage per se, the Order concedes that the rule “represents our interpretation of these 201 and 202 obligations in the open Internet context,” Order at para. 295—which is to say that it too is premised on reclassification. Order at paras. 113–15. Order at para. 125. Order at para. 119. Order at paras. 133, 136. Order at para. 583. Compare Notice, 29 FCC Rcd at 5626 (“Part 8 of Title 47 of the Code of Federal Regulations is amended to read as follows: . . . AUTHORITY: 47 U.S.C. §§ 151, 152, 154(i)–(j), 303, 316, 1302”), with Order at Appendix A (“The authority citation for part 8 is amended to read as follows: AUTHORITY: 47 U.S.C. §§ 151, 152, 153, 154, 201, 202, 208, 218, 230, 251, 254, 256, 257, 301, 303, 304, 307, 309, 316, 332, 403, 503, 522, 536, 548, 1302.”). The Notice made no mention whatsoever of sections 218, 251, 256, 257, 301, 304, 307, 403, 503, 522, and 536. 5 U.S.C. § 553(b)(2)–(3). See, e.g., Crawford v. FCC, 417 F.3d 1289, 1295 (D.C. Cir. 2005). Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 952 (D.C. Cir. 2004) (per curiam) (emphasis added) (internal quotation marks omitted); see also Council Tree Communications v. FCC, 619 F.3d 235, 256 (3d Cir. 2010) (“[E]ven if some sophisticated observers would have seen the connection between the stricter compliance that had been noticed and the lower standards eventually announced, the proper question under the APA was whether the agency had provided notice to all ‘interested parties.’ . . . [T]he inferential notice purportedly provided . . . did not satisfy that standard.” (quoting Wagner Electric Corp. v. Volpe, 466 F.2d 1013, 1019 (3d Cir. 1972))). Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). Time Warner Cable Inc. v. FCC, 729 F.3d 137, 170 (2d Cir. 2013) (internal quotation marks omitted). Horsehead Resource Development Co., Inc. v. Browner, 16 F.3d 1246, 1268 (D.C. Cir. 1994). Order at para. 539. Compare, e.g., Order at para. 37 (“[O]ur forbearance approach results in over 700 codified rules being inapplicable . . . .”), with Order at para. 540 (claiming notice for such a result based on two sentences seeking general comment “on the extent to which forbearance from certain provisions of the Act or our rules would be justified”); see also Order at note 1671 (arguing that the FCC used “slightly different wording to the same effect” when it had previously endorsed a “could have anticipated” standard). Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 1983). National Black Media Coalition v. FCC, 791 F.2d 1016, 1022 (2d. Cir. 1986). As the Order points out, almost every section of the Notice included a generic paragraph seeking comment on alternatives. For example, the Order points to paragraph 96 of the Notice, which spends six sentences discussing possible alternatives for how to define a no-blocking rule and then one sentence asking commenters to “address the legal bases and theories, including Title II, that the Commission could rely on for such a no-blocking rule, and how different sources of authority might lead to different formulations of the no-blocking rule.” Notice, 29 FCC Rcd at 5595–96, para. 96 (cited by Order at note 1100). Such back-of-the-hand mentions are hardly sufficient to apprise commenters on the hows, the whats, and the whys of reclassification, and so I focus on the Notice’s most fulsome discussion instead. Order at para. 327 (quoting Notice, 29 FCC Rcd at 5563, para. 4) (footnotes omitted). Notice, 29 FCC Rcd at 5613–14, paras. 149–50 (footnotes omitted). See Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report to Congress, 13 FCC Rcd 11501 (1998) (Stevens Report) (classifying Internet access service). See Inquiry Concerning High-Speed Access to the Internet Over Cable & Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798 (2002) (Cable Modem Order) (classifying broadband Internet access service over cable systems), aff’d sub nom. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005). See Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853 (2005) (Wireline Broadband Internet Access Services Order) (classifying broadband Internet access service over wireline facilities). See United Power Line Council’s Petition for Declaratory Ruling Regarding the Classification of Broadband over Power Line Internet Access Service as an Information Service, WC Docket No. 06-10, Memorandum Opinion and Order, 21 FCC Rcd 13281 (2006) (classifying broadband Internet access service over power lines). See Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901 (2007) (Wireless Broadband Internet Access Order) (classifying broadband Internet access service over wireless networks). Notice, 29 FCC Rcd at 5610–12, paras. 143–47. Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Universal Service Obligations of Broadband Providers, CC Docket Nos. 02-33, 95-20, 98-10, Notice of Proposed Rulemaking, 17 FCC Rcd 3019 (2002). Accord Council Tree Communications v. FCC, 619 F.3d 235, 254 (3d Cir. 2010) (holding that the FCC failed to provide APA notice for a rule after “find[ing] it instructive that the FCC had previously solicited broader comment on” the point covered by the rule “and in much more specific terms than it did here” and observing that “[t]he contrast could not be more stark”). Connecticut Light & Power Co. v. Nuclear Regulatory Commission, 673 F.2d 525, 533 (D.C. Cir. 1982). Order at paras. 306–433. Note that I exclude from this discussion any mention of forbearance, which I address below. Order at para. 330; see also Order at paras. 346–54. Order at paras. 366–75. Order at paras. 409–25. Order at paras. 430–33. Order at para. 330. To be sure, that last omission is understandable. The FCC could not have mentioned that point until just 22 days before this vote, when the agency decided to hike the standard for what qualifies as broadband Internet access service from 4 Mbps to 25 Mbps, excluding in one fell swoop all wireless and most wireline operators from the market. Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, as Amended by the Broadband Data Improvement Act, GN Docket No. 14-126, 2015 Broadband Progress Report and Notice of Inquiry on Immediate Action to Accelerate Deployment, FCC 15-10 (rel. Feb. 4, 2015) (2015 Broadband Progress Report), available at http://go.usa.gov/3ay5d. Indeed, the agency still has not published that decision in the Federal Register and the public still has more than a month before the comment period closes on the accompanying notice of inquiry. Id. (establishing a deadline for initial comments of March 6, 2015, and a deadline for replies for April 6, 2015). Gautham Nagesh and Brody Mullins, Net Neutrality: How White House Thwarted FCC Chief, The Wall Street Journal (Feb. 4, 2015) (“In November, the White House’s top economic adviser dropped by the Federal Communications Commission with a heads-up for the agency’s chairman, Tom Wheeler. President Barack Obama was ready to unveil his vision for regulating high-speed Internet traffic. The specifics came four days later in an announcement that blindsided officials at the FCC.”), available at http://on.wsj.com/16FXTcH. It strains credulity to think otherwise; had the agency been on track to adopt the President’s plan all along, there would have been no need for him to “la[y] out a plan to do [Title II]” and (critically) “ask[] the FCC to implement it.” The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet, https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014). FCC Chairman Tom Wheeler’s Statement on President Barack Obama’s Statement Regarding Open Internet (Nov. 10, 2014), available at https://apps.fcc.gov/edocs_public/attachmatch/DOC-330414A1.pdf. See Brian Fung, How Obama’s net neutrality comments undid weeks of FCC work, Washington Post (Nov. 14, 2014) (“Three people who met with [FCC Chairman Tom] Wheeler in the days after the president’s statement say he was ‘adamant’ that all options remain on the table—but they also walked away with the impression that the chairman is still not ready to give up on the agency’s hybrid proposal. ‘He certainly referred to the hybrid glowingly,’ said one official, who met with Wheeler late this week and spoke on condition of anonymity to speak freely about the gathering. ‘If we had to bet where he’s heading, it’s still the hybrid.’”), available at http://wapo.st/1alNQed. Indeed, the agency did not think it could prohibit paid prioritization—the bête noire of net neutrality proponents—under Title II before the President’s announcement. As the Chairman testified to Congress less than a week after the Commission adopted the Notice, “[t]here is nothing in Title II that prohibits paid prioritization.” Hearing before the Subcommittee on Communications and Technology of the United States House of Representatives Committee on Energy and Commerce, “Oversight of the Federal Communications Commission,” Video at 44:56 (May 20, 2014), available at http://go.usa.gov/3aUmY. And he was right: Title II makes clear that “different charges may be made for the different classes of communications.” Communications Act § 201(b). And there’s more than a century of precedent that common carriers may charge different rates for different services. See, e.g., Development of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety Agency Communication Requirements Through the Year 2010; Establishment of Rules and Requirements for Priority Access Service, WT Docket No. 96-86, Second Report and Order, 15 FCC Rcd 16720 (2000) (finding Priority Access Service, a wireless priority service for both governmental and non-government public safety personnel, “prima facie lawful” under section 202); Access Charge Reform; Price Cap Performance Review for Local Exchange Carriers; Interexchange Carrier Purchases Of Switched Access Services Offered By Competitive Local Exchange Carriers; Petition of US West Communications, Inc. for Forbearance from Regulation as a Dominant Carrier in the Phoenix, Arizona MSA, CC Docket Nos. 96-262, 94-1, 98-157, CCB/CPD File No. 98-63, 14 FCC Rcd 14221 (1999) (granting dominant carriers pricing flexibility or special access services, allowing both higher charges for faster connections as well as individualized pricing and customers discounts); GTE Telephone Operating Companies Tariff F.C.C. No. 1 et al., Transmittal Nos. 900, 102, 519, 621, 9 FCC Rcd 5758 (Common Carrier Bur. 1994) (approving tariffs for Government Emergency Telephone Service(GETS), a prioritized telephone service, and additional charges therefor); see also, e.g., Interstate Commerce Commission v. Baltimore & O.R. Co., 145 U.S. 263, 283–84 (1892) (noting that common carriers are “only bound to give the same terms to all persons alike under the same conditions and circumstances” and that “any fact which produces an inequality of condition and a change of circumstances justifies an inequality of charge”). The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet, https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014). Id. (“I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act . . . .”). Id. (“The rules I am asking for are simple, common-sense steps that reflect the Internet you and I use every day, and that some ISPs already observe. These bright-line rules include: No blocking. . . . No throttling. . . . No paid prioritization.”). Tom Wheeler, FCC Chairman Tom Wheeler: This Is How We Will Ensure Net Neutrality, Wired, http://wrd.cm/1EGifR4 (Feb. 4, 2015) (“[T]he time to settle the Net Neutrality question has arrived. This week, I will circulate to the members of the Federal Communications Commission (FCC) proposed new rules to preserve the internet as an open platform for innovation and free expression.”). Id. (“I am proposing that the FCC use its Title II authority to implement and enforce open internet protections.”). Id. (“These enforceable, bright-line rules will ban paid prioritization, and the blocking and throttling of lawful content and services.”). Prometheus Radio Project v. FCC, 652 F.3d 431, 450 (3d Cir. 2011). Id. at 451. See, e.g., Jesse Jackson Urges Wheeler Against Title II, Communications Daily (Nov. 19, 2014) (“Several involved in the net neutrality debate have said in recent days that they expect the agency, in light of Wheeler’s statement last week, to seek additional comments in the proceeding.”); Lydia Beyoud, Obama’s Call for Title II Reclassification Forces Rulemaking Delay, Bloomberg BNA (Nov. 12, 2014) (“Several sources said that [figuring out a way forward] could involve an additional public comment period, whether from a further notice of proposed rulemaking or through a public notice at the bureau level.”), available at http://bit.ly/17zHLcC; Laura Ryan, Brendan Sasso and Dustin Volz, What’s Next in the Never-Ending Net Neutrality Fight, National Journal (Nov. 11, 2014) (“An FCC official said the chairman hasn’t decided yet whether he’ll need to issue a further notice of proposed rule-making before moving on to final rules.”), available at http://bit.ly/1AsB4EA; No December Vote: Obama Wants Title II; Wheeler Says There are Issues to Be Resolved, Communications Daily (Nov. 12, 2014) (“[S]ome industry attorneys said the agency may seek even more comments.”); id. (“Some industry attorneys said the commission may open up . . . [the] proceeding . . . to another round of comments to bolster the record for classification.”). Jesse Jackson Urges Wheeler Against Title II, Communications Daily (Nov. 19, 2014). See, e.g., Mario Trujillo, Dems to FCC: ‘Time for action’ on Web reclassification, The Hill (Dec. 18, 2014), available at http://bit.ly/1GwPOTF; see also No December Vote: Obama Wants Title II; Wheeler Says There are Issues to Be Resolved, Communications Daily (Nov. 12, 2014) (“Heartened by Obama’s statement, Title II advocates pressed the agency to quickly move ahead with approving net neutrality rules involving reclassification.”). Notice, 29 FCC Rcd at 5615–16, para. 153. Notice, 29 FCC Rcd at 5616, para. 155. Notice, 29 FCC Rcd at 5616, para. 154. Prometheus Radio Project v. FCC, 652 F.3d 431, 451 (3d Cir. 2011). See Order at paras. 441 (sections 201 and 202); 453 (sections 206, 207, 208, 209, 216, and 217); 463 (section 222); 469 (section 225); 472 (sections 251(a)(2) and 255); 478 (section 224); 481 (section 224(e)); 486 (sections 214(e) and 254); 521 (section 276); 531 (section 257); 532 (section 230(c)); 533 (section 229); 535–36 (sections 309(b) and (d)(1)). See Order at paras. 470 (section 225(d)(3)(B)); 488 (section 254(d)’s first sentence); 497 (section 203); 505 (section 204); 506 (section 205); 508 (sections 211, 213, 215, 218, 219, 220); 509–12 (section 214 except for subsection (e)); 513 (section 251 except for subsection (a)(2), section 256); 515 (section 258). The Order makes clear that forbearance from each of these provisions is only appropriate “at this time,” “for now,” or “on this record.” See Order at paras. 492 (sections 254(g), (k)); 507 (section 212); 517–18 (sections 271, 272, 273, 274, 275); 519 (sections 221, 259); 520 (sections 226, 227(c)(3), 227(e), 228, 260). See Order at para. 522 (forbearing from applying the Commission’s truth-in-billing rules). See Order at paras. 472–74 (declining to forbear from the Commission’s rules implementing section 255 except “insofar as there is any conflict” with “sections 716–718 and our implementing rules”). See Order at para. 451 (forbearing from applying sections 201 and 202 to the extent they would enable the Commission to “adopt[] new ex ante rate regulation . . . in the future”). See Order at para. 526 (committing “to commence in the near term a separate proceeding to revisit the data roaming obligations of MBIAS providers in light of our reclassification decisions today”). Order at paras. 434–536. To be fair, the Order really doesn’t make the rationale clearer for many of its decisions. At most, it claims in a footnote that the rationale for forbearance is to “protect and promote Internet openness.” Order at note 1673. But like beauty or a public interest standard, what that means is in the eye of the beholder. If notice and comment is to mean anything, commenters must be able to wrestle with a concrete rationale for action, not one so vague that no one could anticipate how it might be applied in any particular circumstance. Notice, 29 FCC Rcd at 5616, para. 154. National Black Media Coalition v. FCC, 791 F.2d 1016, 1023 (2d Cir. 1986). For more on this novel rationale, see infra Section III.D. See Environmental Integrity Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (alteration in original) (quoting Kooritzky v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994)). See, e.g., Lifeline and Link Up Reform and Modernization et al., WC Docket Nos. 11-42, 03-109, CC Docket No. 96-45, Notice of Proposed Rulemaking, 26 FCC Rcd 2770, 2862–64, paras. 303–09 (2011) (seeking comment on forbearing from the Act’s facilities requirement for resellers that want to participate in the FCC’s Lifeline program since that requirement appeared only relevant to participants in the FCC’s high-cost program). Implementation of Sections 3(n) and 332 of the Communications Act Regulatory Treatment of Mobile Services, GN Docket No. 93-252, Notice of Proposed Rulemaking, 8 FCC Rcd 7988, 7998–8001, paras. 49–68 (1993). See 47 C.F.R. § 1.54(a), (b), (e). Petition to Establish Procedural Requirements to Govern Proceedings for Forbearance under Section 10 of the Communications Act of 1934, as Amended, WC Docket No. 07-267, Report and Order, 24 FCC Rcd 9543, 9550, para. 12 (2009). Letter from Earl Comstock et al., Counsel for Full Service Network and TruConnect, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 10-127, 14-28, at 10 (Feb. 3, 2015), available at http://go.usa.gov/3aUDR. Notice, 29 FCC Rcd at 5582, para. 59. Order at para. 195; see Order at para. 206 (“To be clear, we are not applying the open Internet rules we adopt today to Internet traffic exchange.”). Order at para. 203. Order at para. 205. Communications Act § 201(a). Letter from Matthew A. Brill, Counsel for the National Cable & Telecommunications Association, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, at 8 (Jan. 14, 2015), available at http://go.usa.gov/3aUDF; see id. (“[T]he portions of the NPRM seeking comment on the application of Title II are focused on the potential reclassification of retail broadband Internet access service as a telecommunications service.”). Notice, 29 FCC Rcd at 5647 (Statement of Chairman Tom Wheeler). Communications Act § 5(a). Order at para. 206 (“[C]ertain regulatory consequences flow from the Commission’s classification of BIAS, including the traffic exchange component, as falling within the ‘telecommunications services’ definition in the Act.”). See Order at note 521 (“Internet traffic exchange is a component of broadband Internet access service, both of which meets the definition of ‘telecommunications service.’”). Notice, 29 FCC Rcd at 5581, para. 55. Notice, 29 FCC Rcd at 5582, para. 59 (quoting Preserving the Open Internet; Broadband Industry Practices, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC Rcd 17905, 17944, n.209 (2010); id. at 17933, n.150). Notice, 29 FCC Rcd at 5615, para. 151 (emphasis added). Order at para. 206. Order at para. 391; see also Order at Appendix A (amending the definition of “public switched network” in rule 20.3). Communications Act § 332(c)(2) (“A person engaged in the provision of a service that is a private mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this Act . . . .”); Communications Act § 332(d)(3) (“[T]he term ‘private mobile service’ means any mobile service . . . that is not a commercial mobile service or the functional equivalent of a commercial mobile service . . . .”); Communications Act § 332(d)(1) (“[T]he term ‘commercial mobile service’ means any mobile service . . . that is provided for profit and makes interconnected service available”); Communications Act § 332(d)(2) (“[T]he term ‘interconnected service’ means service that is interconnected with the public switched network . . . .”). Order at para. 391. Order at paras. 391–99, 402 (applying the new definition). See Notice, 29 FCC Rcd at 5626–27 (Appendix A: Proposed Rules). See Notice, 29 FCC Rcd at 5614, para. 150. Vonage Comments at 43–44. Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) (emphasis in original); see also Prometheus Radio Project v. FCC, 652 F.3d 431, 450 (3d Cir. 2011) (explaining that a proposal “not published in the Federal Register” expressing the views of a party but “not the Commission” does not satisfy the APA’s requirements). See Order at para. 391. The Order also points to various questions in the 2010 NOI—but even that item did not propose a new definition for the public switched network and used the term only once in an utterly unrelated context. See 2010 NOI, 25 FCC Rcd at 7871, n.24. What is more, I do not see how the Order can credibly point to the 2010 NOI for APA notice when it does not incorporate the record produced by that notice into this proceeding. See Order at page 1 (listing GN Docket No. 14-28 (the docket of the Notice) but not GN 10-127 (the docket of the 2010 NOI)). The Commission cannot have it both ways: Either the 2010 NOI and its associated record is part of this proceeding (and the agency must address the full record against reclassification compiled therein) or it is not (and the agency cannot claim notice based on the 2010 NOI). See Notice, 29 FCC Rcd at 5614, para. 149. See Notice, 29 FCC Rcd at 5616, para. 155. See Notice, 29 FCC Rcd at 5614, para. 150. Council Tree Communications v. FCC, 619 F.3d 235, 254 (3d Cir. 2010) (quoting Shell Oil Co. v. EPA, 950 F.2d 741, 751 (D.C. Cir.1991)). See Order at paras. 404, 406; see also Order at Appendix A (amending the definition of “commercial mobile radio service” to include mobile broadband Internet access service as a “functional equivalent” in rule 20.3). See Notice, 29 FCC Rcd at 5626–27 (Appendix A: Proposed Rules). See Notice, 29 FCC Rcd at 5614, para. 150. See 47 C.F.R. § 20.9(a)(14). Compare Letter from Scott Bergmann, Vice President – Regulatory Affairs, CTIA – The Wireless Association, to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-137 (Oct. 17, 2014), available at http://go.usa.gov/3aUW9, with Wireline Competition Bureau Extends Deadline for Filing Reply Comments in the Open Internet and Framework for Broadband Internet Service Proceedings, GN Docket Nos. 14-28, 10-127, Public Notice, 29 FCC Rcd 9714 (Wireline Comp. Bur. 2014) (extending the close of the comment cycle to September 15, 2014). Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983). The Order specifically relies on a conversation the FCC’s general counsel had with Public Knowledge for its contention that “Interested parties should have reasonably foreseen and in fact were aware that the Commission would analyze the functional equivalence of mobile broadband . . . . Indeed, several parties have submitted comments on this question.” Order at para. 406. Communications Act § 332(c)(2) (“A person engaged in the provision of a service that is a private mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose under this Act . . . .”). Communications Act § 3(24). Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2442 (2014) (“Thus, an agency interpretation that is inconsistent with the design and structure of the statute as a whole . . . does not merit deference.” (internal quotation marks and brackets omitted)). Communications Act § 230(b)(2) (emphasis added); see also Communications Act § 230(a)(1), (a)(3), (a)(4), (b)(1), (b)(3) (all using the phrase “Internet and other interactive computer services”). Communications Act § 230(f)(2) (emphasis added). To respond, as the Commission does, that section 230 does not “classify broadband Internet access service, as we define that term herein, as an information service” misses the point. Order at para. 386. When Congress adopted section 230 as part of the Telecommunications Act of 1996, of course it did not anticipate the precise definition the FCC would adopt almost 20 years later—but it could and did broadly define “interactive computer service” to envelop “any” information service provider, and “specifically a service or system that provides access to the Internet.” Communications Act § 230(f)(2) (emphasis added). The Order cannot and does not dispute that Internet service providers squarely fall within the definition. At most, it argues that other services also fall within that definition, Order at note 1097, which seems rather obvious given how broadly the statute is written. See Stevens Report, 13 FCC Rcd at 11501; Cable Modem Order, 17 FCC Rcd at 4798; Wireline Broadband Internet Access Services Order, 20 FCC Rcd at 14853; BPL Internet Access Order, 21 FCC Rcd at 13281; Wireless Broadband Internet Access Order, 22 FCC Rcd at 5901. National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 987 (2005). Although the Order now claims the Stevens Report was “not a binding Commission order,” Order at para. 315, our precedent has repeatedly treated it as such. See, e.g., Communications Assistance for Law Enforcement Act, CC Docket No. 97-213, Second Report and Order, 15 FCC Rcd 7105, 7120, n.70 (1999); Cable Modem Order, 17 FCC Rcd at 4799, n.2; Wireline Broadband Internet Access Services Order, 20 FCC Rcd at 14862, para. 12. Nor does the Order offer any reason to dismiss the considered views of five Commissioners reporting to Congress about how to construe the classification provisions of the Telecommunications Act. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. No. 105-119, 111 Stat. 2440, 2521, § 623 (1998). Stevens Report, 13 FCC Rcd at 11520, para. 39. United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 227 (D.D.C. 1982). Compare Communications Act § 3(24), with United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 229 (D.D.C. 1982). The only difference? The Telecommunications Act added the phrase “and includes electronic publishing.” United States v. American Tel. & Tel. Co., 552 F. Supp. 131, 179–80 (D.D.C. 1982) (capitalizations omitted). Stevens Report, 13 FCC Rcd at 11520, para. 39. Id. at 11513, para. 27 (citations omitted) (quoting Amendment of Section 64.702 of the Commission’s Rules and Regulations (Computer II), Final Decision, 77 FCC 2d 384, 425, 428, paras. 107–08, 113 (1980)). Id. at 11514, para. 27 (emphasis added) (quoting Amendment of Section 64.702 of the Commission’s Rules and Regulations (Computer II), Final Decision, 77 FCC 2d 384, 428, paras. 114 (1980)). Id. at 11536–37, para. 75. Id. (citing Amendment of Section 64.702 of the Commission’s Rules and Regulations (Computer II), Final Decision, 77 FCC 2d 384, 420–21, paras. 97–98 (1980)). Id. at 11536, para. 74; id. at 11520, para. 39 (finding a service to be a telecommunications service only if it offers “a simple, transparent transmission path, without the capability of providing enhanced functionality”); id. at 11520–21, para. 40 (“[A]n entity is not deemed to be providing ‘telecommunications,’ notwithstanding its transmission of user information, in cases in which the entity is altering the form or content of that information.”); id. at 11511, para. 21 (“Congress intended to maintain a regime in which information service providers are not subject to regulation as common carriers merely because they provide their services ‘via telecommunications.’”). Id. at 11536, para. 74. Id. at 11536, para. 73. Id. at 11539–40, para. 80. Id. at 11538, para. 76 (emphasis added); id. at 11537, para. 76 (“Internet access providers typically provide their subscribers with the ability to run a variety of applications, including World Wide Web browsers, FTP clients, Usenet newsreaders, electronic mail clients, Telnet applications, and others.” (footnotes omitted)). Id. at 11520, para. 38 (quoting Letter from Senators John Ashcroft, Wendell Ford, John Kerry, Spencer Abraham, and Ron Wyden to the Honorable William E. Kennard, Chairman, FCC (Mar. 23, 1998) (Five Senators Letter), available at http://apps.fcc.gov/ecfs/document/view?id=2038710001); see also Five Senators Letter (“[W]ere the FCC to reverse its prior conclusions and suddenly subject some or all information service providers to telephone regulation, it seriously would chill the growth and development of advanced services to the detriment of our economic and educational well-being.”). Stevens Report, 13 FCC Rcd at 11519, para. 37 (quoting Letter from Senator John McCain to the Honorable William E. Kennard, Chairman, FCC). Id. at 11511, para. 21. Id. at 11524, para. 45. Telecommunications Act of 1996, as amended, preamble. Stevens Report, 13 FCC Rcd at 1524, para. 46. Communications Act § 230(b)(2). Amendment of Section 64.702 of the Commission’s Rules and Regulations (Computer II), Final Decision, 77 FCC 2d 384, 421, para. 97 & n.35 (1980). To rebut this point, the Order notes that it “is not uncommon in the toll-free arena for a single number to route to multiple locations.” Order at para. 361. But the FCC expressly found that the management of toll-free numbers is “not a common carrier service” in 1996 and that “Resporgs” that manage toll-free numbers “do not need to be carriers.” 800 Data Base Access Tariffs and the 800 Service Management System Tariff; Provision of 800 Services, CC Docket Nos. 93-129, 86-10, Report and Order, 11 FCC Rcd 15227, 15248–49, paras. 44–45 (1996) (emphasis added). AT&T Reply at 54; Bright House Reply at 6–7. Akamai Comments at 3; see also Netflix, Netflix Open Connect Content Delivery for ISPs (“Unlike traditional content caches which retrieve new content when a user requests an object that is not currently present in the cache, new and popular content is pushed from Netflix to the [Netflix-supplied Open Caching Appliances at interconnection points] on a nightly basis over peering or IP transit.”), available at http://nflx.it/1wpo0jw. ACA Comments at 54–60; AT&T Comments at 48–49; CenturyLink Comments at 44–45; Charter Comments at 14–15; Comcast Comments at 57; NCTA Comments at 34–35; T-Mobile Comments at 20; Time Warner Cable Comments at 12; USTelecom Comments at 26–27; USTelecom Reply at 29; Verizon Comments at 59–60. See, e.g., Broadband Internet Technical Advisory Group, Report on Port Blocking at 6 (Aug. 2013), available at http://www.bitag.org/documents/Port-Blocking.pdf. Comcast Reply at 22; Verizon Comments at 60–61. Fred B. Campbell, Center for Boundless Innovation in Technology, Broadband Transmissions Are Not “Telecommunications,” GN Docket No. 14-28, at 30 (Feb. 18, 2014), available at http://go.usa.gov/3aUWA. Stevens Report, 13 FCC Rcd at 11532, para. 64. Communications Act § 3(50) (defining “telecommunications”). Order at para. 373. Communications Act § 3(24) (defining the term “information service” and noting that it “does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service”). Despite the Order’s claim to the contrary, Order at note 975, this line of reasoning does not contradict the Court’s holding in Brand X, since the last-mile transmission service discussed there (and which I discuss below) is just not the same service as the Internet access service that the Order claims is a telecommunications service here. And one need look no further than section 230 of the Communications Act along with the legislative history reviewed in the Stevens Report—all described above—to find compelling evidence that Congress did in fact think that Internet access service was an information service. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000). Cf. MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 231 (1994) (“It is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rate-regulated to agency discretion.”). Order at para. 330. Order at para. 330. Order at para. 330. Order at para. 350. Order at para. 348. Internet Archive Wayback Machine: Yahoo!, http://bit.ly/18xSlB5 (Oct. 15, 1997). Internet Archive Wayback Machine: HoTMaiL, http://bit.ly/1887bOB (Dec. 20, 1996). Rosalie Marshall, Yahoo closing GeoCities web hosting service, vnunet.com (Apr. 24, 2009), available at http://bit.ly/198SoVg; see also Internet Archive Wayback Machine: GeoCities, http://bit.ly/1B0pV9E (Feb. 22, 1997). Internet Archive Wayback Machine: Amazon.com, http://bit.ly/198StZ0 (Oct. 13, 1999). Compare FCC, High-Speed Services for Internet Access: Subscribership as of June 30, 2000, at 2 (Oct. 2000), available at http://go.usa.gov/3aUZe, with FCC, Internet Access Services: Status as of December 31, 2013, at 4 (Oct. 2014), available at http://go.usa.gov/3aUBH. Cable Modem Order, 17 FCC Rcd at 4816, para. 25. Order at para. 330. Order at para. 351 (citing Public Knowledge Comments Appendix at A-2). Order at para. 352 (citing Public Knowledge Comments Appendix at A-3). Order at para. 353 (citing Public Knowledge Comments Appendix at A-1). Qwest, Qwest Commercial 1999 – Every Movie, https://www.youtube.com/watch?v=xAxtxPAUcwQ. Charter, Charter Pipeline (2001), http://bit.ly/1EQV19H. America Online, AOL Commercial from 1999, https://www.youtube.com/watch?v=MQcCnPWHlLk. Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, CC Docket No. 98-146, Second Report, 15 FCC Rcd 20913, 20931, paras. 36–37 (2000). Order at para. 330. Despite the Order’s suggestion to the contrary, the Cable Modem Order did not limit its prediction to “fixed broadband.” 2015 Broadband Progress Report at para. 109. See 2015 Broadband Progress Report at paras. 15–16 (observing that “[p]rivate industry continues to invest billions of dollars to expand America’s broadband networks” and explicitly comparing cable, telco, wireless, Google Fiber, and municipal broadband investments). Order at para. 76 & note 114 (noting “the remarkable increases in investment and innovation seen in recent years” and citing as evidence of robust broadband infrastructure investment cable, telco, wireless incumbent investment and new entrants like Google Fiber). Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147, Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 24012, 24026–27, para. 29 (1998). Id. at 24027, paras. 30–31. Id. at 24030, para. 36. Wireline Broadband Internet Access Services Order, 20 FCC Rcd at 14899, para. 86. Id. at 14899–900, paras. 86–88 (describing this as a service that both end users and ISPs would purchase). Id. at 14900–03, paras. 89–95; NTCA Comments at 9. Notably, rural carriers exercising this option do not treat the Internet access service itself as a Title II telecommunications service and generally offer that service through a separate, affiliated ISP that purchases the last-mile transmission service from the carrier. To the extent the Order suggests otherwise, see Order at para. 422, it is incorrect. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 988 (2005). Id. at 1010 (Scalia, J., dissenting). Id. at 1007 (Scalia, J., dissenting). Order at para. 204. Order at para. 337. Order at paras. 366–75. The Order misunderstands the analogy when it supposes that “the pizzeria owners discovered that other nearby restaurants did not deliver their food and thus concluded that the pizza-delivery drivers could generate more revenue by delivering from any neighborhood restaurant (including their own pizza some of the time). Consumers would clearly understand that they are being offered a delivery service.” Order at para. 45. Of course they would. And if someone offered a last-mile transmission service available to any ISP, of course that would be a telecommunications service. But that’s not what any broadband Internet access service provider is offering, and so the analogy utterly fails. Order at para. 313. The Order objects in a footnote that “the service we define and classify today is the same transmission service as that discussed in prior Commission orders.” Order at note 1257. But it undermines that argument just one sentence before, when it describes the service as one with “the capability to send and receive packets to all or substantially all Internet endpoints.” Id. The transmission service the FCC previously recognized was not and is not so expansive—it’s a last-mile transmission service connecting customers to computer-processing facilities for Internet access. That’s why the Wireline Broadband Internet Access Services Order recognized that ISPs would be customers of such service. See 20 FCC Rcd at 14902, para. 92 (describing the transmission service offered to “end user and ISP customers”). And that’s why even today the tariffs of the National Exchange Carrier Association describe Digital Subscriber Line (DSL) as a local point-to-point service. See, e.g., NECA Tariff FCC No. 5, 20th Revised Page 8-1 http://bit.ly/1wkvPH8 (effective through Mar. 1, 2015) (describing DSL Access service as a transmission service “over local exchange service facilities . . . between customer designated premises and designated Telephone Company Serving Wire Centers”). To return to the pizzeria analogy: Before, the Commission regulated the delivery from the pizzeria to the customer; now, the Commission wants to regulate that delivery plus the delivery of all or substantially all of the ingredients to the pizzeria. The one thing is not like the other. See, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1983). FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (citing Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742 (1996)). Id. at 513–16. Inquiry Concerning the Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable and Timely Fashion, and Possible Steps to Accelerate Such Deployment Pursuant to Section 706 of the Telecommunications Act of 1996, CC Docket No. 98-146, Report, 14 FCC Rcd 2398, para. 38 (1999). See, e.g., USTelecom, Broadband Investment, Historical Broadband Provider Capex (2015) (data through 2013), available at http://www.ustelecom.org/broadband-industry-stats/investment/historical-broadband-provider-capex. Wireless Broadband Internet Access Order, 22 FCC Rcd at 5926 (Statement of Chairman Kevin J. Martin). See supra Part I. National Black Media Coalition v. FCC, 775 F.2d 342, 356 n.17 (D.C. Cir. 1985); see also Fox, 556 U.S. at 537 (Kennedy, J., concurring in part and concurring in the judgment) (“Congress passed the Administrative Procedure Act (APA) to ensure that agencies follow constraints even as they exercise their powers. One of these constraints is the duty of agencies to find and formulate policies that can be justified by neutral principles and a reasoned explanation.”). Communications Act § 332(c)(1)(A) (“A person engaged in the provision of a service that is a commercial mobile service shall, insofar as such person is so engaged, be treated as a common carrier.”). Communications Act § 332(c)(2) (“A person engaged in the provision of a service that is a private mobile service shall not, insofar as such person is so engaged, be treated as a common carrier for any purpose.”). Communications Act § 332(d)(1). Communications Act § 332(d)(2). 47 C.F.R. § 20.3. 47 C.F.R. § 20.3. Communications Act § 332(d)(3). Wireless Broadband Internet Access Order, 22 FCC Rcd at 5901. Id. at 5916, para. 41. Id. at 5916, 5917, paras. 41, 45 & n.118. Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, WT Docket No. 05-265, 26 FCC Rcd 5411, 5431, para. 41 (2011). Cellco Partnership v. FCC, 700 F.3d 534, 538 (D.C. Cir. 2012). Id. at 548. Id. at 538; see also id. (recognizing that the Communications Act’s definition of the term “common carrier” has been “interpreted . . . to exclude providers of ‘information services’”). Verizon v. FCC, 740 F.3d 623, 650 (D.C. Cir. 2014). The White House, Net Neutrality: President Obama’s Plan for a Free and Open Internet https://web.archive.org/web/20150204034321/http://www.whitehouse.gov/net-neutrality (Nov. 10, 2014) (“I believe the FCC should make these rules fully applicable to mobile broadband as well.”). Order at paras. 400–01. Wireless Broadband Internet Access Order, 22 FCC Rcd at 5917–18, para. 45. See, e.g., Time Warner Cable Request for Declaratory Ruling that Competitive Local Exchange Carriers May Obtain Interconnection under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers, WC Docket No. 06-55, Memorandum Opinion and Order, 22 FCC Rcd 3513, 3521–22, paras. 15–16 (Wireline Comp. Bur. 2007) (noting the “regulatory classification of the [VoIP] service provided to the ultimate end user has no bearing on” the regulatory status of the entities “transmitting [the VoIP] traffic”). Wireless Broadband Internet Access Order, 22 FCC Rcd at 5918, para. 45 (stating that “users of a mobile wireless broadband Internet access service need to rely on another service or application, such as certain voice over Internet Protocol (VoIP) services . . . to make calls”). Id. at 5917–18, paras. 45–46. See Order at para. 401. Order at para. 391. Perrin v. United States, 444 U.S. 37, 42 (1979); see also Evans v. United States, 504 U.S. 255, 260 n.3 (1992) (Where a “‘word is obviously transplanted from another legal source, whether common law or other legislation, it brings the old soil with it.’” (quoting Justice Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). Applications of Winter Park Tel. Co., Memorandum Opinion and Order, 84 FCC.2d 689, 690, para. 2, n.3 (1981). Ad Hoc Telecommunications Users Committee v. FCC, 680 F.2d 790, 793 (D.C. Cir. 1982). MTS and WATS Market Structure; Amendment of Part 67 of the Commission’s Rules and Establishment of a Joint Board, CC Docket Nos. 78-72, 80-286, Order Inviting Further Comments, 50 Fed. Reg. 31749, 41749 (Fed.-State Jt. Bd. 1985). Amendment of Part 22 of the Commission’s Rules Relating to License Renewals in the Domestic Public Cellular Radio Telecommunications Service, CC Docket No. 90-358, Report and Order, 7 FCC Rcd 719, 720, para. 9 (1992); see also Provision of Access for 800 Service, CC Docket No. 86-10, Memorandum Opinion and Order on Reconsideration and Second Supplemental Notice of Proposed Rulemaking, 6 FCC Rcd 5421, 5421, n.3 (1991) (“800 numbers generally must be translated into [plain old telephone service] numbers before 800 calls can be transmitted over the public switched network.”); Telecommunications Services for Hearing-Impaired and Speech-Impaired Individuals, and the Americans with Disabilities Act of 1990, CC Docket No. 90-571, Notice of Proposed Rulemaking, 5 FCC Rcd 7187, 7190, para. 20 (1990) (noting that “subscribers to every telephone common carriers’ interstate service, including private line, public switched network services, and other common carrier services, will contribute”); Letter from Scott Bergmann, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-137, at 7 n.2 (Dec. 22, 2014) (collecting authorities). Implementation of Sections 3(n) and 332 of the Communications Act; Regulatory Treatment of Mobile Services, GN Docket No. 93-252, Second Report and Order, 9 FCC Rcd 1411, 1434, para. 53 (1994) (CMRS Second Report and Order). Id. Id. at 1436–37, para. 59. To support its action here, the Commission cites commenters that called on the FCC in 1994 to broaden the scope of the term “the public switched network” to include the “network of networks,” or otherwise separate the term entirely from the traditional public switched telephone network. See Order at note 1145. Again, this ignores that the Commission rejected those commenters’ calls to so fundamentally alter the term “the public switched network” and made clear that, consistent with section 332, it was limiting the term to covering services that are “interconnected with the traditional local exchange or interexchange switched network.” CMRS Second Report and Order, 9 FCC Rcd at 1436–37, para. 59. McDermott Intern., Inc. v. Wilander, 498 U.S. 337, 342 (1991). Indeed, section 332’s legislative history confirms that Congress used the terms interchangeably. Although both the House and Senate versions of the legislation used the term “the public switched network,” the Conference Report characterized the House version as requiring interconnection with “the Public switched telephone network.” H.R. Rep. 103-213, 103d Cong., 1st Sess. 495 (1993) (emphasis added). See, e.g., Telecommunications Act § 704(b) (amending section 332 of the Communications Act). Commodity Futures Trading Com’n v. Schor, 478 U.S. 833, 846 (1986) (quoting NLRB v. Bell Aerospace Co., 416 U.S. 267, 274–275 (1974)); see also Cottage Sav. Ass’n v. C.I.R. 499 U.S. 554, 561 (1991) (“‘[I]nterpretations long continued without substantial change, applying to unamended or substantially reenacted statutes, are deemed to have received congressional approval and have the effect of law.’” (quoting U.S. v. Correll, 389 U.S. 299, 305–06 (1967))); City of Pleasant Grove v. U.S., 479 U.S. 462, 468 (1987) (Where Congress is aware of an administrative interpretation when it revises a statute, it “implicitly approve[s] it.”). 47 U.S.C. § 1422(b)(1). See, e.g., Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (applying the “normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning” to a single term used in two separate, but related, statutes (internal quotation marks omitted)). 47 C.F.R. § 20.3 (emphasis added). In an effort to try to avoid this absurdity, the Order says in a footnote that it is making a “conforming change to the definition of Interconnected Service in section 20.3 of the Commission’s rules.” Order at note 1175; see also 47 C.F.R. § 20.3 (defining interconnected service as one “[t]hat is interconnected with the public switched network, or interconnected with the public switched network through an interconnected service provider, that gives subscribers the capability to communicate to or receive communication from all other users on the public switched network”) (emphasis added). That change? Deleting the word “all” from the definition of interconnected service! Order at Appendix A. There are many words one could use to describe this amendment. “Conforming” (or “minor”) is not one of them. Under this change, every user of Network A (say, the public switched telephone network) could lack the capability to communicate with any user of Network B (say, the Internet) and vice-versa, but, because of the FCC’s definitional change, Network A and Network B would now be a single, interconnected network. That is plainly at odds with the entire structure of section 332 and any reasonable understanding of the concept of an interconnected network and interconnected services.Indeed, the FCC never proposed such a change, has no record on which to do so, and nowhere explains how the change can be squared with the text, purpose, or history of section 332, including the Commission’s own view that the purpose of the interconnected services definition is to ensure that those services are “broadly available.” See Order at para. 402. Although the Order tries to bolster its approach by contending that the definition of “interconnected service” and the CMRS Second Report and Order recognize that a service can be interconnected even if access is limited in some ways, Order at para. 402 & note 1172, this effort fails because the FCC there was focusing on phenomena such as service providers intentionally limiting users’ access to the public switched network to certain hours each day, for the sole purpose of avoiding classification as a commercial mobile service. See, e.g., CMRS Second Report and Order, 9 FCC Rcd at 1435, para. 55. That is the apple to the Order’s orange, given that the Commission here is attempting to deem two networks and services “interconnected” even though they never interconnect. Order at para. 396. Communications Act § 332(d)(2). Communications Act § 332(d)(2). Compare, too, the parenthetical language in section 332(d)(2) with the parallel statutory provisions that nest around the definition of “interconnected service.” In both section 332(d)(1), which defines “commercial mobile service,” and section 332(d)(3), which defines “private mobile service,” the parallel parentheticals state “(as defined in section 153 of this title).” So rather than providing evidence that the phrases are not terms of art or that Congress was delegating the FCC unbounded discretion to define the relevant terms, it is both a far more modest delegation, as explained above, and one that simply recognizes that Congress itself had not codified the relevant terms. City of Arlington, Tex. v. FCC, 133 S.Ct. 1863, 1874 (2013); see also Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). CMRS Second Report and Order, 9 FCC Rcd at 1436, para. 59. See id. at 1433–34, para. 53. Order at paras. 391, 396, & note 1145 (citing CMRS Second Report and Order, 9 FCC Rcd at 1436, para. 59). See CMRS Second Report and Order, 9 FCC Rcd at 1431–37, paras. 50–60; id. at 1434, para. 54 (“The purpose underlying the congressional approach, we conclude, is to ensure that a mobile service that gives its customers the capability to communicate to or receive communication from other users of the public switched network should be treated as a common carriage offering (if the other elements of the definition of commercial mobile radio service are also present[.)]”); id. at 1433, para. 52 (“Several parties caution that making distinctions based on technologies could encourage mobile service providers to design their systems to avoid commercial mobile radio service regulation.”); see also Wireless Broadband Internet Access Order, 22 FCC Rcd at 5918, para. 45 n.119 (describing the Second CMRS Report and Order and stating that, “[i]n fact, the Commission found that ‘commercial mobile service’ must still be interconnected with the local exchange or interexchange switched network as it evolves”). See CMRS Second Report and Order, 9 FCC Rcd at 1432, 1435, paras. 52, 57 (discussing Establishment of Satellite Systems Providing International Communications, CC Docket No. 84-1299, Report and Order, 101 FCC 2d 1046, 1101, para. 114 (1985) (discussing various “switched message services such as MTS, telex, TWX, telegraph, teletext, facsimile and high speed switched data services”); see also id.at 1454–59, paras. 100–15 (identifying then-existing common carrier services). See Order at note 1145 (noting that the Second CMRS Report and Order recognized that non-telephone common carrier switched services and networks that themselves interconnect with the traditional public switched network are considered part of that network for purposes of section 332). The Order attempts to evade this argument when it contrasts the “millions of subscribers” to mobile broadband Internet access service with the fact that private mobile service “includes services not ‘effectively available to a substantial portion of the public.’” Order at para. 398. But the statute poses a three-part test: To be a commercial mobile service, a service must be provided for a fee, available to the public, and an interconnected service. So a service is a private mobile service if it isn’t interconnected with the public switched network—even if it’s provided for a fee and made available to a substantial portion of the public (or even every single American). Any other reading of the statute would render one part of the statutory test surplusage. Indeed, the Commission has made this very point. See CMRS Second Report and Order, 9 FCC Rcd at 1450–51, paras. 88–93 (concluding that most specialized mobile radio services meet the first two parts of the test so that the classification of any particular specialized mobile radio service thus “turns on whether they do, in fact, provide interconnected service as defined by the statute”). Again, the problem for the Order is that mobile broadband Internet access service falls squarely into the non-interconnected camp and thus cannot be classified as a commercial mobile service. See Order at paras. 404–05. See 47 C.F.R. § 20.9(14); see also CMRS Second Report and Order, 9 FCC Rcd at 1442–48, paras. 71–80 (adopting the current framework for determining whether a service may be deemed the functional equivalent of a commercial mobile service). See 47 C.F.R. § 20.9(14)(i). See 47 C.F.R. § 20.9(14)(ii)(B). See Order at paras. 400–01, 405, 407. That the FCC classifies a service based on the nature of the service itself is well established. The Commission has found as much in this very context. See, e.g., Wireless Broadband Internet Access Order, 22 FCC Rcd at 5917–18, paras. 45–46 (recognizing that the regulatory classification of VoIP services is irrelevant to the regulatory classification of the separate mobile broadband Internet access service); see also Time Warner Cable Request for Declaratory Ruling that Competitive Local Exchange Carriers May Obtain Interconnection under Section 251 of the Communications Act of 1934, as Amended, to Provide Wholesale Telecommunications Services to VoIP Providers, WC Docket No. 06-55, Memorandum Opinion and Order, 22 FCC Rcd 3513, 3520–21, paras. 15–16 (Wireline Comp. Bur. 2007) (noting the “regulatory classification of the [VoIP] service provided to the ultimate end user has no bearing on” the regulatory status of the entities “transmitting [the VoIP] traffic”). CMRS Second Report and Order, 9 FCC Rcd at 1447, para. 79. See Order at para. 407. See Order at para. 403. See Order at para. 403 (citing Communications Act § 332 (prohibiting the common carrier treatment of private mobile service providers) and Communications Act § 3 (requiring the common carrier treatment of providers of telecommunications services)). Recall, too, that a provider of private mobile service “shall not . . . be treated as a common carrier for any purpose.” Communications Act § 332(c)(2). One of those purposes is certainly treating it as such for the purpose of avoiding manufactured “statutory contradictions.” See, e.g., Order at paras. 275–82. Telecommunications Act § 706(a)–(b). Communications Act § 227(b)(2). Communications Act § 251(d)(1). Communications Act § 201(b) (“The Commissioner [sic] may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act.”); see also Communications Act § 303(r) (“Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest, or necessity requires shall— . . . [m]ake such rules and regulations and prescribe such restrictions, not inconsistent with law, as may be necessary to carry out the provisions of this Act . . . .”). Communications Act § 205(a). Communications Act § 205(a). Communications Act § 213(b). Communications Act § 409(e). Communications Act § 503(b)(1). Communications Act § 503(b)(2)(E). Communications Act § 209. Policy and Rules Concerning Rates for Dominant Carriers, CC Docket No. 87-313, Second Report and Order, 5 FCC Rcd 6786 (1990). Telecommunications Act § 401 (titled “Regulatory Forbearance” and inserting section 10 into Title I of the Communications Act). Telecommunications Act § 101 (inserting section 253 into Title II of the Communications Act). Telecommunications Act § 101 (inserting section 257 into Title II of the Communications Act). Telecommunications Act § 101 (inserting Part II, §§ 251–61, into Title II of the Communications Act). Verizon v. FCC, 740 F.3d 623, 638 (D.C. Cir. 2014) (quoting Open Internet Order, 25 FCC Rcd at 17969, para. 120). Telecommunications Act § 1(b) (“[W]henever in this Act an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Communications Act of 1934 (47 U.S.C. 151 et seq.).”); see also Telecommunications Act § 101 (“Establishment of Part II of Title II. (a) Amendment.—Title II is amended by inserting after section 229 (47 U.S.C. 229) the following new part: . . . .”). Notably, all of the provisions at issue in the Supreme Court case AT&T v. Iowa Utils. Bd. were in fact inserted into the Communications Act, and thus the Court could plausibly claim that “Congress expressly directed that the 1996 Act . . . be inserted into the Communications Act.” AT&T v. Iowa Utils. Bd., 525 U.S. 366, 377 (1999). For other examples, see Telecommunications Act §§ 202(h), 704(c). Communications Act § 2(a). Verizon v. FCC, 740 F.3d 623, 640 (D.C. Cir. 2014). Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147, Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 24012, 24046, para. 73 (1998) (Advanced Services Order). The Verizon court asked the wrong question when it noted that it “might well hesitate to conclude that Congress intended to grant the Commission substantive authority in section 706(a) if that authority would have no limiting principle.” Verizon v. FCC, 740 F.3d 623, 639 (D.C. Cir. 2014). The question is not whether section 706 of the Telecommunications Act contains some “intelligible principle” and thus does not violate the non-delegation doctrine. Cf. Whitman v. American Trucking Associations, 531 U.S. 457, 472 (2001). Instead, the question is one of congressional intent: Did Congress really intend to put specific limits on the Commission’s forbearance authority in one place (section 10 of the Communications Act) only to largely eliminate them in another (section 706 of the Telecommunications Act)? Such an interpretation doesn’t make sense. Telecommunications Act § 706(a). See, e.g., Communications Act § 2(a) (“The provisions of this Act shall apply to all interstate and foreign communication . . . .”); § 2(b) (“[N]othing in this Act shall be construed to apply or to give the Commission jurisdiction with respect to . . . intrastate communication service . . . .”). See Communications Act §§ 214(e)(6), 252(e). See Communications Act §§ 10(e), 253(d). See Communications Act § 224(c). Order at para. 431. Order at para. 433. To be fair, the Order suggests that States might have some role to play, at least with data collection, see Order at notes 708 & 1276, but such a role hardly squares with hardy “regulating methods” like “price cap regulation” and “regulatory forbearance” that the Commission claims for itself. Relying on a statement contained in a dissenting opinion by a U.S. Supreme Court Justice, the Order speculates that “Commission actions adopted pursuant to a negative section 706(b) determination would not simply be swept away by a future positive section 706(b) finding.” Order at note 714. But what authority would the Commission have to enforce a section 706(b) rule without section 706(b) authority? Indeed, if Congress gave the Federal Emergency Management Agency (FEMA) authority to act during a hurricane, would anyone think that FEMA could continue that course once the storm had passed, sunny skies had returned, and recovery efforts were over? Of course not. So too here. But more to the point, even asking this question is sure to trap the agency in the labyrinth of section 706(b)’s on-off authority; the only way to escape is not to enter. Here, that means not interpreting section 706 to provide the Commission with authority in the first place. Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147, Memorandum Opinion and Order and Notice of Proposed Rulemaking, 13 FCC Rcd 24012, 24047, para. 77 (1998). Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415, 19469, para. 107 (2005), aff’d by Qwest Corp. v. FCC, 482 F.3d 471 (D.C. Cir. 2007). Petition of ACS of Anchorage, WC Docket No. 06-109, Memorandum Opinion and Order, 22 FCC Rcd 16304, 16356, para. 118 (2007). Petition of the Embarq Local Operating Companies for Forbearance et al., WC Docket No. 06-147, Memorandum Opinion and Order, 22 FCC Rcd 19478, 19503–04, para. 46 (2007), aff’d by Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903 (D.C. Cir. 2009). Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, CC Docket No. 96-98, Third Report and Order and Fourth Further Notice of Proposed Rulemaking, 15 FCC Rcd 3696, 3840, para. 317 (1999) (“Our overriding objective, consistent with the congressional directive in section 706, is to ensure that advanced services are deployed on a timely basis to all Americans so that consumers across America have the full benefits of the ‘Information Age.’”); Vonage Holdings Corporation Petition for Declaratory Ruling Concerning an Order of the Minnesota Public Utilities Commission, WC Docket No. 03-211, Memorandum Opinion and Order, 19 FCC Rcd 22404, 22426–27, paras. 36–37 (2004). Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, WC Docket No. 07-245, GN Docket No. 09-51, Report and Order and Order on Reconsideration, 26 FCC Rcd 5240, 5317, 5330, paras. 173, 208 (2011); Implementation of Section 224 of the Act; Amendment of the Commission’s Rules and Policies Governing Pole Attachments, WC Docket No. 07-245, RM-11293, RM-11303, Notice of Proposed Rulemaking, 22 FCC Rcd 20195, 20209, para. 36 (2007). S. Rep. No. 104-23 at 50–51 (1995); see Verizon v. FCC, 740 F.3d 623, 639 (D.C. Cir. 2014). See S. 652 § 304(b) (104th Cong. 1995) (contained in “Title III—An End to Regulation”). S. Rep. No. 104-230 at 210 (1996). Order at para. 8; see also Order at paras. 78–101. Order at note 134; see also Order at para. 81. Order at para. 38. Order at para. 437 (quoting Ad Hoc Telecommunications Users Committee v. FCC, 572 F.3d 903, 906-07 (D.C. Cir. 2009)). Order at para. 458. Communications Act § 10(a)(1). Communications Act § 10(a)(2). Communications Act § 10(b). Communications Act § 10(a)(3). Communications Act § 332(c)(1)(A), (c)(1)(C). Although I focus here on precedent related to section 10(a)(1)’s criterion for forbearance, our precedent uses this same analysis when examining whether forbearing from an economic regulation would comply with section 10(a)(2)’s focus on protecting consumers. Petition for Declaratory Ruling to Clarify 47 U.S.C. § 572 in the Context of Transactions Between Competitive Local Exchange Carriers and Cable Operators; Conditional Petition for Forbearance From Section 652 of the Communications Act for Transactions Between Competitive Local Exchange Carriers and Cable Operators, WC Docket No. 11-118, Order, 27 FCC Rcd 11532, 11544, para. 27 (2012) (quoting Petition of U S WEST Communications Inc. for a Declaratory Ruling Regarding the Provision of National Directory Assistance; Petition of U S WEST Communications, Inc., for Forbearance; The Use of N11 Codes and Other Abbreviated Dialing Arrangements, CC Docket Nos. 97-172, 92-105, Memorandum Opinion and Order, 14 FCC Rcd 16252, 16270, para. 31 (1999)). CMRS Second Report and Order, 9 FCC Rcd at 1467, para. 136. Id. at 1478, para. 173. Id. at 1478, para. 175. Policy and Rules Concerning the Interstate, Interexchange Marketplace; Implementation of Section 254(g) of the Communications Act of 1934, as amended, CC Docket No. 96-61, Second Report and Order, 11 FCC Rcd 20730, 20752, para. 42 (1996). For those not steeped in Commission arcana, an interexchange carrier is a long-distance carrier, and all interstate, interexchange carriers had been determined to be nondominant at the time of this decision. Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415, 19447, para. 64 (2005). Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the Communications Act of 1934, as amended (47 U.S.C. § 160(c)), for Forbearance from Certain Dominant Carrier Regulation of Its Interstate Access Services, and for Forbearance of Title II Regulation of Its Broadband Services, in the Anchorage, Alaska, Incumbent Local Exchange Carrier Study Area, Memorandum Opinion and Order, WC Docket No. 06-109, Memorandum Opinion and Order, 22 FCC Rcd 16304, 16330–31, para. 58 (2007); see also Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of the Communications Act of 1934, as Amended, for Forbearance from Sections 251(c)(3) and 252(d)(1) in the Anchorage Study Area, WC Docket No. 05-281, Memorandum Opinion and Order, 22 FCC Rcd 1958, 1959, para. 1 (2007) (eliminating other economic obligations “under comparable competitive conditions”). Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from Resale, Unbundling and Other Incumbent Local Exchange Requirements Contained in Sections 251 and 271 of the Telecommunications Act of 1996 in the Terry, Montana Exchange, WC Docket No. 07-9, Memorandum Opinion and Order, 23 FCC Rcd 7257, 7264, para. 13 (2008). Petitions of Verizon Telephone Companies for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Boston, New York, Philadelphia, Pittsburgh, Providence and Virginia Beach Metropolitan Statistical Areas, Inc., WC Docket No. 06-172, Memorandum Opinion and Order, 22 FCC Rcd 21293, 21311, para. 33 (2007), remanded, Verizon Tel. Cos. v. FCC, 570 F.3d 294 (D.C. Cir. 2009). Petitions of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Denver, Minneapolis-St. Paul, Phoenix, and Seattle Metropolitan Statistical Areas, WC Docket No. 07-97, Memorandum Opinion and Order, 23 FCC Rcd 11729, 11752, para. 31 (2008). Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona Metropolitan Statistical Area, WC Docket No. 09-135, Memorandum Opinion and Order, 25 FCC Rcd 8622, 8623, para. 2 (2010). Rather than citing such precedent, the Order attempts to sweep aside all competition-focused precedent by claiming it was “responding to arguments that competition was sufficient.” Order at note 1307. That’s no coincidence. Until this Order, no Commission has ever found that it could forbear from economic regulation absent competition—and so every Commission order and every commenter has focused on the presence or absence of competition. See, e.g., Rates for Interstate Inmate Calling Services, WC Docket No. 12-375, Report and Order and Further Notice of Proposed Rulemaking, 28 FCC Rcd 14107 (2013) (establishing price caps for interstate inmate calling services under section 201 of the Communications Act), pets. for review pending and pets. for stay granted in part sub nom. Securus Techs. v. FCC, No. 13-1280 (D.C. Cir. Jan. 13, 2014). Communications Act § 203. Communications Act § 205. Communications Act § 251(b)(1), (c)(3)–(4). Order at para. 501. Order at para. 81. Order at para. 80. Order at note 134. Order at paras. 434–542. Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan Statistical Area, WC Docket No. 04-223, Memorandum Opinion and Order, 20 FCC Rcd 19415 (2005); Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona Metropolitan Statistical Area, WC Docket No. 09-135, Memorandum Opinion and Order, 25 FCC Rcd 8622 (2010). Order at para. 439; see also Order at note 1305 (citing cases). Petition for Forbearance of Iowa Telecommunications Services, Inc. d/b/a/ Iowa Telecom Pursuant to 47 U.S.C. § 160(c) from the Deadline for Price Cap Carriers to Elect Interstate Access Rates Based on The CALLS Order or a Forward Looking Cost Study, CC Docket No. 01-331, Order, 17 FCC Rcd 24319, 24325–26, paras. 18–19 (2002). Petition for Forbearance from Application of the Communications Act of 1934, as Amended, to Previously Authorized Services, Memorandum Opinion and Order, 12 FCC Rcd 8408, 8411–12, paras. 9–10 (Common Carrier Bur. 1997). See, e.g., Petition of USTelecom for Forbearance Under 47 U.S.C. § 160(c) from Enforcement of Certain Legacy Telecommunications Regulations, WC Docket No. 12-61, Memorandum Opinion and Order, 28 FCC Rcd 7627, 7675–76, para. 107 (2013) (finding that the data filed in ARMIS Report 43-01 “is not needed to ensure just and reasonable rates, terms, and conditions” given the continuation of “price cap regulation”); id. at 7691, para. 142 (eliminating the “separate affiliate requirement” for non-Bell operating company dominant carriers while retaining the remainder of ex ante rate regulation such as “dominant carrier regulation, Part 32 accounting rules, equal access obligations” and “section 251 [unbundling and resale] obligations”). Review of Foreign Ownership Policies for Common Carrier and Aeronautical Radio Licensees, IB Docket No. 11-133, First Report and Order, 27 FCC Rcd 9832, 9839, para. 15 (2012). Petition of USTelecom for Forbearance Under 47 U.S.C. § 160(c) from Enforcement of Certain Legacy Telecommunications Regulations, WC Docket No. 12-61, Memorandum Opinion and Order, 28 FCC Rcd 7627, 7671–72, paras. 94, 98 (2013). Order at para. 458; see also Order at para. 497 (“[It] is our predictive judgment that other protections that remain in place are adequate to guard against unjust and unreasonable and unjustly and unreasonably discriminatory rates and practices in accordance with section 10(a)(1) . . . .”). Order at para. 444. CMRS Second Report and Order, 9 FCC Rcd at 1478–79, para. 175. Order at para. 203. Order at para. 499. Order at para. 499. See Order at paras. 151–53. Order at para. 205. Order Appendix B at para. 19. Communications Act § 208(b)(1) (“[W]ith respect to any investigation under this section of the lawfulness of a charge, classification, regulation, or practice, issue an order concluding such investigation within 5 months after the date on which the complaint was filed.”); see also Communications Act § 208(a) (“If [a] carrier or carriers shall not satisfy the complaint within the time specified or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper.”). Order at para. 458. Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338, 96-98, 98-147, Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd 16978, 17151–52, paras. 292 (2003). United States Telecom Association v. FCC, 359 F.3d 554, 582 (D.C. Cir. 2004). Qwest Petition for Forbearance Under 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Broadband Services, WC Docket No. 06-125, Memorandum Opinion and Order, 23 FCC Rcd 12260, 12275, 12280, paras. 26, 34 (2008); Petition of the Embarq Local Operating Companies for Forbearance Under 47 U.S.C. § 160(c) from Application of Computer Inquiry & Certain Title II Common-Carriage Requirements; Petition of the Frontier and Citizens ILECs for Forbearance Under Section 47 U.S.C. § 160(c) from Title II and Computer Inquiry Rules with Respect to Their Broadband Services, WC Docket No. WC 06-147, Memorandum Opinion and Order, 22 FCC Rcd 19478, 19492, 19496, paras. 22, 30 (2007). Ad Hoc Telecom. Users Committee v. FCC, 572 F.3d 903, 911 (D.C. Cir. 2009). Petition for Forbearance of the Verizon Telephone Companies Pursuant to 47 U.S.C. § 160(c); SBC Communications Inc.’s Petition for Forbearance Under 47 U.S.C. § 160(c); Qwest Communications International Inc. Petition for Forbearance Under 47 U.S.C. § 160(c); BellSouth Telecommunications, Inc. Petition for Forbearance Under 47 U.S.C. § 160(c), WC Docket Nos. 01-338, 03-235, 03-260, 04-48, Memorandum Opinion and Order, 19 FCC Rcd 21496, 21507, para. 24 (2004). EarthLink, Inc. v. FCC, 462 F.3d 1, 11 (D.C. Cir. 2006). See, e.g., Order at para. 495 (internal quotation marks and brackets omitted) (“We note in this regard that when exercising its section 10 forbearance authority ‘[g]uided by section 706,’ the Commission permissibly may ‘decide[] to balance the future benefits’ of encouraging broadband deployment ‘against [the] short term impact’ from a grant of forbearance.” (quoting EarthLink, Inc. v. FCC, 462 F.3d 1, 9 (D.C. Cir. 2006))). Notably, the Order’s response studiously avoids using the statutory word “charges” in favor of the vaguer term “conduct,” Order at para. 496 & note 1502, and does not explain what, if anything, will ensure just and reasonable charges absent either competition or economic regulation. EarthLink, Inc. v. FCC, 462 F.3d 1, 7 (D.C. Cir. 2006). Id. at 11. Order at para. 501. Order at para. 458. Order at para. 513. Order at para. 450. Order at note 1352. Order at note 1390. Order at note 1438. Order at note 1447. Order at note 1466. Order at para. 503. Order at para. 507. Order at para. 494. Order at para. 512. Order at para. 505. Order at para. 466. Order at para. 450. Order at note 1660. Notice, 29 FCC Rcd at 5653 (Dissenting Statement of Commissioner Ajit Pai) (quoting Jerome Taylor, Google chief: My fears for Generation Facebook, The Independent (Aug. 18, 2010), available at http://ind.pn/1vWHCty). Perhaps not every bad idea. At least the Commission won’t be separately classifying and regulating “broadband subscriber access service,” which was widely regarded to be an imaginary service. See, e.g., The Free State Foundation, Section 706, Wild Assumptions, and Regulatory Restraint (Mar. 31, 2014), http://freestatefoundation.blogspot.com/2014/03/section-706-wild-assumptions-and.html. Agape Church, Inc. v. FCC, 738 F.3d 397, 411 (D.C. Cir. 2013). See, e.g., Letter from Henry G. Hultquist, AT&T to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 2 (filed Feb. 19, 2015) (AT&T Feb. 19, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001031079 (“The Commission’s failure to provide adequate notice for a number of the proposals under consideration has resulted in a record that is bereft of support for the Commission's actions. For example, the Commission has no record basis on which it could determine that every ISP holds itself out as a common carrier. To give just one example, AT&T does not offer its GigaPower service indifferently to the public, and there is no basis in the record on which the Commission could mandate that AT&T do so.”); Letter from William H. Johnson, Verizon to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 4 (filed Feb. 19, 2015) (Verizon Feb. 19, 2015 Title II Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001031374 (“For starters, the Open Internet NPRM did not even mention “adjunct-to-basic” services, so the Commission cannot justify its action on that rationale.”); Letter from Scott K. Bergmann, CTIA to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 6 (filed Dec. 22, 2014) (CTIA Dec. 22, 2014 White Paper), http://apps.fcc.gov/ecfs/document/view?id=60001014008 (“[T]he Notice asked only whether mobile broadband Internet access service ‘fit[s] … the definition of ‘commercial mobile radio service.’” ... “It never asked whether ‘the definition’ – set out in Section 20.3 – should be changed, or provided notice that it might be.”)(internal citation omitted); Letter from Kathryn A. Zachem, Comcast to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 6 (filed Jan. 30, 2015) (Comcast Jan. 30, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001024748 (“As an initial matter, the Open Internet NPRM gave no notice of any proposal to reclassify Internet traffic exchange as a Title II service. Although the NPRM raised the prospect that the FCC could depart from its historical approach of excluding interconnection issues from open Internet rules – asking whether it “should expand the scope of the open Internet rules to cover issues related to traffic exchange” – it nowhere suggested that the Commission might reclassify ISPs’ interconnection-related services to achieve that end.”) (internal citation omitted); Letter from Matthew A. Brill, Counsel to National Cable & Telecommunications Association, to Marlene H. Dortch, FCC, GN Docket Nos. 14-28, 10-127 (Jan. 14, 2015) (NCTA Jan. 14, 2015 Ex Parte Letter). Nat’l Fuel Gas Supply Corp. v. FERC, 468 F.3d 831, 844 (D.C. Cir. 2006) (finding that “if [an agency] chooses to rely solely on a theoretical threat, it will need to explain how the potential danger …unsupported by a record of abuse, justifies such costly prophylactic rules”). Letter from William H. Johnson, Verizon to Marlene H. Dortch, FCC, GN Docket No. 14-28 at 1-2 (filed Feb. 11, 2015) (Verizon Feb. 11, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001028587. In a single footnote, the item trots out the same three outdated examples it has cited in the past. It does not cite any other subsequent examples. Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). Supra para. 81. Verizon v. FCC, 740 F.3d 623, 664 (D.C. Cir. 2014) (Silberman, J., concurring in part and dissenting in part). Moreover, there is a “significant rate of switching by wireless broadband subscribers.” Letter from Kathleen Grillo, Verizon to Marlene H. Dortch, FCC, GN Docket No. 14-28 (filed Jan. 15, 2015) (Verizon Jan. 15, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001013599 (attaching Andres V. Lerner and Janusz A. Ordover, “Terminating Access Monopoly” Theory and the Provision of Broadband Internet Access, at 10-11 (Jan. 15, 2015) (“Wireless subscriber monthly churn rates in the third quarter of 2014 were 1.0% for Verizon and AT&T, 1.6% for T-Mobile, and 2.2% for Sprint, which means that 12 percent of Verizon and AT&T customers, 19 percent of T-Mobile customers, and 26 percent of Sprint customers, churn each year.”). Additionally, “[a]ll four nationwide carriers offer pro-rated ETF policies that lower the costs to consumers who transfer services.” Letter from William H. Johnson, Verizon to Marlene H. Dortch, FCC, GN Docket No. 14-28 at 5 (filed Feb. 19, 2015) (Verizon Feb. 19, 2015 Wireless Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001031470. “Nor could the Commission find that any participant in the marketplace for Internet interconnection has market power, including those that also provide broadband Internet access.” Letter from Gary L. Phillips, AT&T to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 9 (filed Feb. 2, 2015) (AT&T Feb. 2, 2015 Common Carrier Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001025387. See also infra note 37. The only concession to small providers is a temporary reprieve from the enhanced disclosure requirements. There is no relief from Title II. Moreover, ACA, NCTA and WISPA pointed out that the Commission did not adequately address the impact of Title II on small providers in the NPRM and Initial Regulatory Flexibility Act (IRFA) analysis. See, e.g., Letter from Ross Lieberman, ACA, Lisa Schoenthaler, NCTA, and Stephen Coran, WISPA, to Tom Wheeler, FCC, GN Docket No. 14-28 at 4 (filed Jan. 9, 2015) (“The proposal of the most concern and potential significant negative impact on small broadband providers – whether wireline and wireless, fixed or mobile – is the FCC’s proposal to regulate information services under Title II. However, there is no discussion in the NPRM nor IRFA of the major changes that a Title II regulatory scheme will impose on small broadband providers.”). Matthew M. Polka, American Cable Association, FCC Must Address Harm to Small and Medium-Sized ISPs from Title II Regulation (Feb. 9, 2015), http://americancable.org/node/5189; Letter from Barbara S. Esbin, Counsel to American Cable Association, to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 3-4 (filed Feb. 2, 2015), http://apps.fcc.gov/ecfs/document/view?id=60001025667. “Indeed, across the broad array of broadband providers that USTelecom represents, the vast majority pay to request and receive Internet traffic. It belies common sense and economics to suggest that a broadband provider that is paying to receive Internet traffic has a meaningful ‘terminating access monopoly.’” Letter from Jonathan Banks, USTelecom to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 3 (filed Feb. 18, 2015) (USTelecom Ex Parte Letter). Sorenson Communications Inc. v. F.C.C., 755 F.3d 702, 708 (D.C. Cir. 2014) (quoting Nat'l Tel. Coop. Ass'n v. FCC, 563 F.3d 536, 541 (D.C. Cir. 2009); Verizon v. FCC, 740 at 663 (Silberman, J., concurring in part and dissenting in part)). Letter from Berin Szoka, Tech Freedom et al. to Chairman Wheeler, FCC, GN Docket No. 14-28 at 2 (filed Sept. 15, 2014), http://apps.fcc.gov/ecfs/document/view?id=7522679800. Moreover, “Title II would undermine 15 years of American insistence around the world that the Internet shouldn’t be regulated under traditional telecom rules.” Id. at 1. See, e.g., supra note 753. Kery Murakami, Wheeler Defends Proposed Net Neutrality Rules at NARUC, COMM. DAILY at 4, 6 (Feb. 18, 2015) (quoting Craig Moffett). Supra para. 414. Verizon Feb. 19, 2015 Wireless Ex Parte Letter at 1-2 (“Chairman Wheeler, for example, has written that ‘[o]ver the last 21 years, the wireless industry has invested almost $300 billion’ under rules ‘similar’ to those he is proposing for broadband Internet access, ‘proving that modernized Title II regulation can encourage investment and competition.’ This analogy is misplaced. The wireless industry’s capital expenditures have been driven not primarily by CMRS voice service offerings, but by Title I mobile broadband services offered over 3G and 4G platform.”) (internal citation omitted). Letter from Richard A. Askoff, NECA et. al to Marlene H. Dortch, FCC, CC Docket No. 02-33 & WC Docket No. 04-36 (July 26, 2005), http://apps.fcc.gov/ecfs/document/view?id=6518022135 (“Over 900 small telephone companies currently offer Digital Subscriber Line (DSL) transmission services under NECA’s tariff and participate in associated revenue pools. Existing NECA tariff and pooling arrangements permit these companies to offer new services in an efficient and timely manner, while providing stable monthly cash flows and protection against unexpected demand reductions or increased costs. Absent pooling, for example, the potential loss of only one large customer could make a significant difference in whether a rural company can risk investments in new service deployments.”). Letter from Gary L. Phillips, AT&T to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 1 (filed Feb. 18, 2015) (AT&T Feb. 18, 2015 Fact Sheet Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001030836. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). CTIA Dec. 22, 2014 White Paper at 21 (citing Appropriate Regulatory Treatment for Broadband Access to the Internet Over Wireless Networks, WT Docket No. 07-53, Declaratory Ruling, 22 FCC Rcd 5901, 5911 ¶ 27 (2007)). FCC v. Fox Television Stations, Inc., 556 U.S. at 515. Letter from Austin H. Schlick, Google to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 3 (filed Feb. 20, 2015) (Google Feb. 20, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001032150. Supra para. 354. The item also points to the ads to determine that ISPs holds themselves out to serve the public indifferently. Supra note 965. A smattering of general advertisements, however, is not a substitute for a reasoned analysis, nor does it establish that each and every ISP has made “a conscious decision” to hold itself out to serve the public indifferently. Southwestern Bell Tel. Co. v. FCC, 19 F.3d 1475, 1481 (D.C. Cir. 1994). Moreover, the Commission itself has recognized that ISPs may “decide case-by-case basis whether to serve a particular end user, what connection speed(s) to offer, and at what price” and this “flexibility to customize service arrangements for a particular customer is the hallmark of private carriage, which is the antithesis of common carriage.” Preserving the Open Internet, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25 FCC Rcd 17905, 17951, ¶ 79 (2010) (2010 Open Internet Order), aff’d in part, vacated and remanded in part sub nom. Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014) (citing Sw. Bell Tel. Co. v. FCC, 19 F.3d at 1481 (“If the carrier chooses its clients on an individual basis and determines in each particular case whether and on what terms to serve and there is no specific regulatory compulsion to serve all indifferently, the entity is a private carrier for that particular service and the Commission is not at liberty to subject the entity to regulation as a common carrier.”) (internal quotation marks omitted)). Indeed, “[t]aking advantage of this flexibility, AT&T, for example, reserves the right to refuse to provide its wireline broadband Internet access service to potential customers that it perceives as credit risks.” AT&T Feb. 2, 2015 Common Carrier Ex Parte Letter at 7. See Verizon Feb. 19, 2015 Title II Ex Parte Letter at Appendix 1. Id. at 2. 47 U.S.C. § 153(20) (defining an “information service”). Accordingly, these functionalities do not merely “facilitate establishment of a basic transmission path”. Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 1934, as Amended, CC Docket No. 96-149, First Report and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 21905, 21958, ¶ 107 (1996). Supra paras. 370, 372. Letter from Christopher Heimann, AT&T to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 7 (filed Feb. 2, 2015) (AT&T Feb. 2, 2015 Brand X Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001025378. See id. at 1-2, 6-8. See also AT&T Feb. 18 Fact Sheet Ex Parte Letter at 5 (“As long as the offering contains more than what the Commission has called a ‘pure transmission path’ — broadband Internet access is an information service.”) (internal citation omitted). Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 02-33, 01-337, 95-20, 98-10, WC Docket Nos. 04-242, 05-271, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 14853, ¶ 15 (2005) (WBIAS Order) (citing 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, GN Docket No. 00-785, CS Docket No. 02-52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798, ¶ 38 (2002), aff’d, Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005)). The WBIAS Order also observed, “This classification appears consistent with Congress’s understanding of the nature of Internet access services. Specifically, in section 230(f)(2) of the Act, Congress defined the term ‘interactive computer service’ to mean ‘any information service, . . . including specifically a service or system that provides access to the Internet….’” WBIAS Order at fn. 41 (citing 47 U.S.C. § 230(f)(2)). See Google Feb. 20, 2015 Ex Parte Letter at 1. See also, e.g., Letter from William H. Johnson, Verizon to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127 at 1, 4-5 (filed Dec. 17, 2014) (Verizon Dec. 17, 2014 Interconnection Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001010005; AT&T Feb. 2, 2015 Common Carrier Ex Parte Letter at 7-8; Comcast Jan. 30, 2015 Ex Parte Letter at 2-6. AT&T Feb. 2, 2015 Common Carrier Ex Parte Letter at 7-8. Federal Trade Commission, Broadband Connectivity Competition Policy at 25 (June 2007), http://www.ftc.gov/sites/default/files/documents/reports/broadband-connectivity-competition-policy/v070000report.pdf. Comcast Jan. 30, 2015 Ex Parte Letter at 3. See AT&T Feb. 2, 2015 Common Carrier Ex Parte Letter at 8 (“For example, AT&T’s peering policy expressly states that “[m]eeting the peering guidelines set forth herein is not a guarantee that a peering relationship with AT&T will be established,” that AT&T will “evaluate a number of business factors” before entering into a peering agreement, and “reserves the right not to enter into a peering agreement with an otherwise qualified applicant.”) (citing AT&T Global IP Network Settlement-Free Peering Policy, http://www.corp.att.com/peering). Open Internet Order, 25 FCC Rcd at 17951, ¶ 79. Moreover, this market is highly competitive. See, e.g., AT&T Feb. 2, 2015 Common Carrier Ex Parte at 9 (“At the same time that transit rates are declining rapidly, the volume of Internet traffic flowing over peering and transit arrangements has been growing at a remarkable pace. This combination of falling prices and increased output is exactly the opposite of what occurs where providers have market power, which is the ability ‘to raise price and restrict output.’ On the contrary, these facts lead inexorably to the conclusion that there is robust competition among competing networks of all types, fueled by massive continuing investments in fiber and IP platforms — investments that were made in reliance on the Commission’s long-standing, hands-off policy with respect to Internet access services and Internet interconnection arrangements.”) (internal citations omitted); Comcast Jan. 30, 2015 Ex Parte Letter at 5 (“Thanks to fierce competition, unit prices for transit services have dropped over 99% in the past 15 years.”). See, e.g., Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control, WC Docket No. 05-75, Memorandum Opinion and Order, 20 FCC Rcd 18433, ¶ 133 (2005) (“[I]nterconnection between Internet backbone providers has never been subject to direct government regulation.”); Connect America Fund et al., WC Docket No. 10-90 et al., Report and Order and Further Notice of Proposed Rulemaking, 26 FCC Rcd 17663, 17663, ¶ 1338 (2011) (USF/ICC Transformation Order), aff’d sub nom. In re FCC 11-161, 753F.3d 1015 (10th Cir. 2014). Supra para. 204. See, e.g., Verizon Dec. 17, 2014 Interconnection Ex Parte Letter at 1 (“Both the previous Open Internet rules and the Notice of Proposed Rulemaking in this proceeding focused on concerns relating to the management of traffic within a broadband provider’s local network and over the last-mile connection to a subscriber. By contrast, interconnection agreements inherently involve routing traffic between networks. Issues surrounding these agreements, which relate to the physical connections between networks, are “very distinct” from issues concerning the management of traffic over the last-mile….”) (internal citation omitted). See, e.g., Comcast Jan. 30, 2015 Ex Parte Letter at 6 (“As an initial matter, the Open Internet NPRM gave no notice of any proposal to reclassify Internet traffic exchange as a Title II service. Although the NPRM raised the prospect that the FCC could depart from its historical approach of excluding interconnection issues from open Internet rules – asking whether it ‘should expand the scope of the open Internet rules to cover issues related to traffic exchange’ – it nowhere suggested that the Commission might reclassify ISPs’ interconnection-related services to achieve that end.”). As a backstop, the item notes in passing that BIAS provider practices with respect to such interconnection are “for and in connection with” the BIAS service. This last second addition based on a last minute ex parte filing cannot salvage this effort because there is no notice for this theory either. See id. at 1-3 (“These [traffic exchange] arrangements are distinct from the issues that are the subject of the Commission’s open Internet rules, such as the ability of end-users to access particular content or the priority with which content might be delivered to end-users over an ISP’s last-mile network.”). See also, e.g., Verizon Dec. 17, 2014 Interconnection Ex Parte at 1 (“[I]nterconnection agreements involve issues that are distinct from net neutrality, which has always focused on broadband Internet access providers’ handling of traffic over the last-mile connection to consumers.”). Comcast Jan. 30, 2015 Ex Parte Letter at 2-3 (“Traffic-exchange arrangements concern the transport of Internet traffic across the increasingly complex and dynamic backbone architecture of the Internet, and are negotiated based on the amounts of traffic – not the type, content, or source of traffic – being delivered to each party’s network by the other.”). 47 U.S.C. § 332. In 1993, Congress codified section 332(c) differentiating between commercial and private mobile services. Compare 47 U.S.C. § 332(c)(1) with id. § 332(c)(1); see also id. § 332(d) (providing definitions); Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, 107 Stat. 312. Under the law, mobile broadband has been treated as a “private mobile service” as opposed to a “commercial mobile service or the functional equivalent of a commercial mobile service.” A “commercial mobile service” interconnects with the public switched telephone network; whereas, a “private mobile service” does not. Because mobile broadband is not interconnected and, therefore, a “commercial mobile service,” Section 332 of the Communications Act prevents the Commission from regulating mobile broadband under Title II. Instead, mobile broadband is a “private mobile service” free from common carrier regulation. See, e.g., Implementation of Sections 3(n) and 332 of the Communications Act, Regulatory Treatment of Mobile Services, 9 FCC Rcd 1411, 1434 ¶ 54 (1994); Appropriate Regulatory Treatment for Broadband Access to the Internet over Wireless Networks, Declaratory Ruling, 22 FCC Rcd 5901, 5915–21 ¶¶ 37–56 (2007); Cellco Partnership v. FCC, 700 F.3d 534, 538 (D.C. Cir. 2012); Verizon v. FCC, 740 F.3d at 650; see also Testimony of Robert M. McDowell, Partner, Wiley Rein LLP & Senior Fellow, Hudson Institute, before the Senate Committee on Commerce, Science & Transportation, at 14-15, http://www.commerce.senate.gov/public/?a=Files.Serve&File_id=14755dd8-95c7-45e0-a7b9-bfb33f222f45. See, e.g., Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993, Annual Report and Analysis of Competitive Market Conditions With Respect to Mobile Wireless, Including Commercial Mobile Services, WT Docket No. 13-135, Seventeenth Report, 29 FCC Rcd 15311, 15336 Chart III.2.A (WTB 2014) (stating that approximately 99 percent of consumers have a choice of two or more competitors and more than 82 percent of Americans today have a choice of four or more mobile providers). Now more than any time in history, wireless consumers have the freedom to take advantage of myriad incentives to switch providers, whether through early termination fee buyouts, unlocking, or one of various options to buy or finance the latest mobile devices. See, e.g., Letter from Scott K. Bergmann, CTIA – The Wireless Association, to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127, at 3-5 (Feb. 10, 2015) (CTIA Feb. 10, 2015 Ex Parte Letter). And, to remain competitive, carriers will continue to deploy new technologies, upgrade current networks, improve service offerings, and evolve to consistently meet or exceed consumer expectations. See, e.g., Testimony of Meredith Attwell Baker, President and CEO, CTIA – The Wireless Association, before the House Energy & Commerce Subcommittee on Communications and Technology, at 5 (Jan. 21, 2015), http://docs.house.gov/meetings/IF/IF16/20150121/102832/HHRG-114-IF16-Wstate-BakerM-20150121-U1.pdf. See, e.g., id. at 4 (stating that a single strand of fiber can carry more traffic than the entirety of spectrum allocated for commercial wireless use); Letter from Scott Bergman, CTIA – The Wireless Association, to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 (Oct. 6, 2014). By doing so, my colleagues in the majority bring an end to the regulatory approach established by Congress, implemented by the Commission and relied upon by the wireless sector. See CTIA Feb. 10, 2015 Ex Parte Letter at 5-10. See, e.g., Letter from Gary L. Phillips, AT&T, to Marlene H. Dortch, FCC, at 3 (Feb. 2, 2015) (AT&T Feb. 2, 2015 Ex Parte Letter); CTIA Feb. 10, 2015 Ex Parte Letter at 13-14; CTIA Dec. 22, 2014 White Paper at 6; Letter from William H. Johnson, Verizon, to Marlene H. Dortch, FCC, at 5-6 (Verizon Dec. 24, 2014 Ex Parte Letter). See, e.g., AT&T Jan. 8, 2015 Ex Parte Letter; AT&T Feb. 2, 2015 Ex Parte Letter; CTIA Feb. 10, 2015 Ex Parte Letter at 14-16; CTIA Dec. 22, 2014 White Paper at 2-19; Verizon Dec. 24, 2014 Ex Parte Letter. Supra para. 446 (emphasis added). Supra para. 499. Supra para. 509. Supra para. 510. Supra para. 513 (internal citation omitted). Supra para. 514. See, e.g., NCTA Comments 27-29; TWC Comments 14-16; Letter from William L. Kovacks, Chamber of Commerce to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127, at 3, n.13 (filed July 15, 2014); ITIF Comments at 9. Supra para. 292 (“In light of our discretion in interpreting and applying sections 201 and 202 and insofar as section 706(a) is ‘a ‘fail-safe’ that ‘ensures’ the Commission’s ability to promote advanced services,’ we decline to interpret section 202(a) as preventing the Commission from exercising its authority under sections 201(b) and 706 to ban paid prioritization practices that harm Internet openness and deployment.”) (internal citation omitted). Verizon Feb, 19, 2015 Title II Ex Parte Letter at 7. Util. Air Reg. Grp. v. EPA, 134 S. Ct. 2427, 2444, 2445 (2014). Ragsdale v Wolverine World Wide, Inc., 535 U.S. 81, 91 (2002) (internal quotation marks omitted). Verizon v. FCC, 740 F.3d at 662 (Silberman, J., concurring in part and dissenting in part). Letter from Earl W. Comstock, Counsel to Full Service Network and TruConnect, to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 4 (filed Feb. 20, 2015), http://apps.fcc.gov/ecfs/document/view?id=60001031994. Astoria Federal Savings & Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991). Verizon and AT&T Inc. v. FCC, 770 F.3d 961, 964 (D.C. Cir. 2014). 47 U.S.C. § 161. 47 U.S.C. § 230(b)(2). 47 U.S.C. § 230(f)(2). Letter from Matthew A. Brill, NCTA to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 & 10-127 at 5 (filed Feb. 20, 2015) (NCTA Feb. 20, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001031778 (“Private suits and damages awards have never been necessary to protect broadband consumers in the past, and leaving these two provisions in place would be immensely destabilizing to the broadband industry.…The Commission is all too familiar with the growing trend of class action lawsuits that aim to capitalize on ambiguities in the Commission’s rulings—most notably in the context of the Telephone Consumer Protection Act (‘TCPA’). A regime that exposes the broadband industry to similar threats of abusive litigation would be anything but ‘light touch,’ and could be particularly devastating for smaller ISPs, many of which cannot afford the cost of litigating or settling class action lawsuits.”) (internal citation omitted). Electronic Frontier Foundation, Dear FCC: Rethink The Vague “General Conduct” Rule (Feb. 24, 2015), https://www.eff.org/deeplinks/2015/02/dear-fcc-rethink-those-vague-general-conduct-rules. FCC v. Fox Television Stations, Inc., 132 S.Ct. 2307, 2317 (2012) (citing Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)). TerraCom, Inc. and YourTel America, Inc., Apparent Liability for Forfeiture, File No.: EB-TCD-13-00009175, 29 FCC Rcd 13325 (2014), https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-173A1_Rcd.pdf. The NAL also wrongly suggested that section 201(b) covers cybersecurity. Id. at 13351 (dissenting Statement of Commissioner Michael O’Rielly), https://apps.fcc.gov/edocs_public/attachmatch/FCC-14-173A5.pdf. Letter from Matthew A. Brill, Counsel to National Cable & Telecommunications Association, to Marlene H. Dortch, FCC, GN Docket Nos. 14-28, 10-127 at 2 (Feb.11, 2015) (NCTA Feb. 11, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001028642. Letter from Michael R. Romano, NTCA to Marlene H. Dortch, FCC, GN Docket Nos. 14-28 &10-127, at 1 (filed Feb. 19, 2015) (NTCA Feb. 19, 2015 Ex Parte Letter), http://apps.fcc.gov/ecfs/document/view?id=60001031424.