## Facts

- The Federal Communications Commission issued the 2015 Open Internet Order addressing “net neutrality” and broadband regulation.
- The Order reclassified fixed and mobile broadband Internet access service as a “telecommunications service” under Title II of the Communications Act, while forbearing from applying certain Title II provisions.
- The Order adopted rules barring blocking, throttling, and paid prioritization, added a “general conduct” rule, and enhanced transparency obligations.
- Broadband providers and industry groups petitioned for review, challenging the FCC’s authority, procedure, and constitutional basis for the rules.
- Public interest groups and edge providers intervened in support of the FCC.
- The consolidated petitions were heard by the U.S. Court of Appeals for the District of Columbia Circuit.

## Issues

1. Whether the FCC reasonably interpreted the Communications Act in reclassifying broadband Internet access service as a “telecommunications service” subject to Title II.
2. Whether the FCC lawfully treated mobile broadband as a “commercial mobile service” (or its functional equivalent) subject to common-carrier regulation.
3. Whether the FCC provided adequate notice under the Administrative Procedure Act for reclassification, interconnection-related regulation, forbearance choices, and the general conduct rule.
4. Whether the anti-blocking, anti-throttling, anti-paid-prioritization, general conduct, and transparency rules exceeded statutory authority or were arbitrary, capricious, or impermissibly vague.
5. Whether the rules violated the First Amendment by compelling or restricting broadband providers’ speech.

## Decision

- The court denied the petitions for review and upheld the Open Internet Order in all material respects.
- The court held the Communications Act did not unambiguously foreclose broadband’s classification as a telecommunications service and deferred to the FCC’s reasonable interpretation.
- The court upheld the FCC’s reclassification of mobile broadband as a commercial mobile service or its functional equivalent.
- The court ruled the FCC’s notice was adequate for the principal regulatory choices challenged and any minor deficiencies were harmless.
- The court sustained the FCC’s forbearance decisions as reasonable and within its statutory discretion.
- The court upheld the bright-line rules, the general conduct rule, and the transparency requirements as within FCC authority and sufficiently definite.
- The court rejected the First Amendment challenges, treating broadband providers primarily as conduits for others’ speech.
- One judge concurred in part and dissented in part, expressing concern about the sufficiency of the FCC’s justification for the regulatory shift.

## Legal Principles

- When statutory terms are ambiguous, an agency may reasonably interpret and apply them, including changing a prior classification, if it provides a reasoned explanation supported by the record.
- In applying common-carrier regulation, the FCC may rely on the Communications Act’s statutory definitions without an additional, freestanding common-law test where the challenge targets the statutory application.
- Administrative Procedure Act notice is satisfied when the proposed rulemaking fairly alerts affected parties to the subjects and potential outcomes under consideration; harmless notice errors do not require vacatur.
- The FCC may forbear from applying selected Title II requirements if it reasonably determines forbearance serves statutory criteria and the public interest.
- Effects-based standards like a general conduct rule are not invalid for vagueness where the agency supplies workable criteria and context for application.
- Common-carrier style nondiscrimination and transparency rules for broadband do not violate the First Amendment when providers function as conduits rather than speakers exercising editorial discretion.

## Conclusion

The D.C. Circuit upheld the FCC’s 2015 Open Internet Order, concluding the agency reasonably reclassified broadband under Title II, lawfully applied net-neutrality rules with tailored forbearance, satisfied administrative notice obligations, and did not offend the First Amendment.


U.S. Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016)