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Mozilla Corp. v. Federal Communications Commission

United States Court of Appeals, District of Columbia Circuit

October 1, 2019

Mozilla Corporation, Petitioner
Federal Communications Commission and United States of America, Respondents City and County of San Francisco, et al., Intervenors

          Argued February 1, 2019

          On Petitions for Review of an Order of the Federal Communications Commission

          Pantelis Michalopoulos and Kevin Kendrick Russell argued the causes for non-government petitioners. With them on the joint briefs were Cynthia L. Taub, Markham C. Erickson, Michael A. Cheah, Brian M. Willen, Donald J. Evans, Sarah J. Morris, Matthew F. Wood, Colleen Boothby, James N. Horwood, Tillman L. Lay, Jeffrey M. Bayne, Katherine J. O=Konski, Andrew J. Schwartzman, Harold J. Feld, and Lisa A. Hayes. Keenan P. Adamchak and Kevin S. Bankston, entered appearances.

          Stephanie Weiner argued the cause for intervenors Internet Association et al. et al. in support of petitioners. With her on the briefs were Christopher J. Wright, Scott Blake Harris, E. Austin Bonner, Matt Schruers, John A. Howes, Jr., and Anthony R. Segall. Maria K. Myers entered an appearance.

          Danielle L. Goldstein and Steven C. Wu, Deputy Solicitor General, Office of the Attorney General for the State of New York, argued the causes for government petitioners. With them on the briefs were Barbara D. Underwood, Attorney General at the time the brief was filed, Office of the Attorney General for the State of New York, Arocles Aguilar, Helen M. Mickiewicz, Lisa-Marie G. Clark, Kimberly Lippi, Ester Murdukhayeva, Assistant Solicitor General, Office of the Attorney General for the State of New York, Greta Hansen, Xavier Becerra, Attorney General, Office of the Attorney General for the State of California, Sarah E. Kurtz, Deputy Attorney General, Nicklas A. Akers, Senior Assistant Attorney General, George Jepsen, Attorney General, Office of the Attorney General for the State of Connecticut, Jonathan J. Blake, Assistant Attorney General, Jeffrey T. Pearlman, Phillip R. Malone, Matthew P. Denn, Attorney General, Office of the Attorney General for the State of Delaware, Christian D. Wright, Director, Consumer Protection, Thomas J. Miller, Attorney General, Office of the Attorney General for the State of Iowa, Benjamin E. Bellus, Assistant Attorney General, Russell A. Suzuki, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Hawaii, Clyde J. Wadsworth, Solicitor General, Lisa Madigan, Attorney General, Office of the Attorney General for the State of Illinois, David Franklin, Solicitor General, Andrew G. Beshear, Attorney General, Office of the Attorney General for the Commonwealth of Kentucky, Maura Healey, Attorney General, Office of the Attorney General for the Commonwealth of Massachusetts, Jared Rinehimer, Assistant Attorney General, Janet T. Mills, Attorney General at the time the brief was filed, Office of the Attorney General for the State of Maine, Brendan O=Neil, Assistant Attorney General, Brian E. Frosh, Attorney General, Office of the Attorney General for the State of Maryland, Richard L. Trumka, Jr., Assistant Attorney General, Lori Swanson, Attorney General, Office of the Attorney General for the State of Minnesota, Joseph C. Meyer, Assistant Attorney General, Hector Balderas, Attorney General, Office of the Attorney General for the State of New Mexico, Tania Maestas, Deputy Attorney General, James M. Hood, Attorney General, Office of the Attorney General for the State of Mississippi, Crystal Utley Secoy, Special Assistant Attorney, Gurbir S. Grewal, Attorney General, Office of the Attorney General for the State of New Jersey, Jeremy M. Feigenbaum, Assistant Attorney General, Joshua H. Stein, Attorney General, Office of the Attorney General for the State of North Carolina, Kevin Anderson, Senior Deputy Attorney General, Peter Kilmartin, Attorney General, Office of the Attorney General for the State of Rhode Island, Michael W. Field, Assistant Attorney General, Ellen F. Rosenblum, Attorney General, Office of the Attorney General for the State of Oregon, Andrew Shull, Senior Assistant Attorney General, Josh Shapiro, Attorney General, Office of the Attorney General for the Commonwealth of Pennsylvania, Michael J. Fischer, Chief Deputy Attorney General, Thomas J. Donovan, Jr., Attorney General, Office of the Attorney General for the State of Vermont, Christopher J. Curtis, Chief, Public Protection Division, Karl A. Racine, Attorney General, Office of the Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Mark R. Herring, Attorney General, Office of the Attorney General for the Commonwealth of Virginia, Samuel T. Towell, Deputy Attorney General, Robert W. Ferguson, Attorney General, Office of the Attorney General for the State of Washington, Tiffany Lee, Assistant Attorney General, Dennis J. Herrera, and William K. Sanders. Bryan C. Yee, Deputy Attorney General, Office of the Attorney General for the State of Hawai=i, Sarah E. Kurtz, Deputy Attorney General, Office of the Attorney General for the State of California, Michael C. Wertheimer, Assistant Attorney General, and John S. Story, Attorney, Office of the Attorney General for the State of Connecticut, Theresa C. Mueller, Jennifer M. Murphy, and James B. Ramsey, entered appearances.

          Christopher Jon Sprigman was on the brief for amici curiae Members of Congress in support of petitioners.

          Mitchell Stoltz and Corynne McSherry were on the brief for amicus curiae Electronic Frontier Foundation in support of petitioners.

          Christopher T. Bavitz was on the brief for amicus curiae Engine Advocacy in support of petitioners.

          MacKenzie Fillow, Edward N. Siskel, Michael P. May, and Karen L. Moynahan were on the brief for amici curiae The City of New York and 27 other local governments, mayors and municipal organizations in support of petitioners.

          Allen S. Hammond, IV was on the brief for amici curiae Professors of Administrative, Communications, Energy, Antitrust, and Contract Law and Policy in support of petitioners.

          Jessica L. Ellsworth and Matthew Higgins were on the brief for amici curaie The American Council on Education and 19 other education and library associations in support of petitioners.

          Henry Goldberg and Devendra T. Kumar were on the brief for amicus curiae eBay Inc. in support of petitioners.

          Adrienne E. Fowler was on the brief for amicus curiae Twilio Inc. in support of petitioner.

          Andrew Jay Schwartzman and James T. Graves were on the brief for amicus curiae Consumer Reports in support of petitioners.

          Thomas H. Vidal was on the brief for amici curiae Professors Scott Jordan and Jon Peha in support of petitioners.

          Michael J. Burstein was on the brief for amici curiae Professors of Communications Law in support of petitioners.

          Paul Goodman and Yosef Getachew were on the brief for amici curiae Common Cause, et al. in support of petitioners and vacation of the order.

          William Michael Cunningham, pro se, was on the brief for amicus curiae William Michael Cunningham in support of the public interest.

          Thomas M. Johnson Jr, General Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Kristen C. Limarzi and Nickolai G. Levin, Attorneys, U.S. Department of Justice, David M. Gossett, Deputy General Counsel, Federal Communications Commission, Jacob M. Lewis, Associate General Counsel, and James M. Carr and Scott M. Noveck, Counsel. Robert J. Wiggers, Attorney, U.S. Department of Justice, and Richard K. Welch, Deputy Associate Counsel, Federal Communications Commission, entered appearances.

          Jonathan E. Nuechterlein argued the cause for ISP intervenors. On the brief were Michael K. Kellogg, Scott H. Angstreich, Helgi C. Walker, Andrew G.I. Kilberg, Miguel A. Estrada, Matthew A. Brill, Matthew T. Murchison, Jeffrey A. Lamken, and Stephen E. Coran. C. Frederick Beckner, III, Rick Chessen, Kellam M. Conover, Neal M. Goldberg, Theodore B. Olson, and Michael S. Schooler entered appearances.

          Ken Paxton, Attorney General, Office of the Attorney General for the State of Texas, Kyle D. Hawkins, Solicitor General, and John C. Sullivan, Assistant Solicitor General, were on the brief for amici curiae The States of Texas, et al. in support of respondents.

          Lawrence J. Spiwak was on the brief for amicus curiae Phoenix Center for Advanced Legal and Economic Public Policy Studies in support of respondents.

          Tara M. Corvo and Jonathan Markman were on the brief for amici curiae Richard Bennett, et al. in support of respondents.

          Thomas R. McCarthy was on the brief for amici curiae Washington Legal Foundation, et al. in support of respondents.

          John D. Seiver, Daniel P. Reing, and Sarah Oh were on the brief for amicus curiae The Technology Policy Institute in support of respondents.

          Charles Kennedy and James Dunstan were on the brief for amicus curiae TechFreedom in support of respondents.

          Arthur J. Burke was on the brief for amicus curiae Information Technology and Innovation Foundation in support of respondents.

          Robert N. Weiner was on the brief for amici curiae The Georgetown Center for Business and Public Policy and Nine Prominent Economists and Scholars in support of respondents.

          Leonid Goldstein, pro se, was on the brief as an intervenor in support of respondents.

          John P. Elwood, Matthew X. Etchemendy, Peter C. Tolsdorf, Kevin W. Brooks, Dileep S. Srihari, and Daryl Joseffer were on the brief for amici curiae The National Association of Manufacturers, et al. in support of respondents.

          David P. Murray was on the brief for amici curiae The International Center for Law and Economics and Participating Scholars in support of respondents.

          Robert G. Kirk was on the brief for amicus curiae Roslyn Layton in support of respondents.

          J. Wade Lindsay was on the brief for amicus curiae Tech Knowledge in support of respondents.

          Christopher S. Yoo was on the brief for amicus curiae Christopher S. Yoo in support of respondents.

          Andrew Grimm was on the briefs for intervenor Digital Justice Foundation, Inc. in support of neither party.

          Before: Millett and Wilkins, Circuit Judges, and Williams, Senior Circuit Judge.


          PER CURIAM..


         I. Broadband Internet Classification .................................. 13

         A. The Supreme Court's Decision in Brand X ................. 16

         B. DNS and Caching in the 2018 Order ........................... 19

         C. Objections to the Classification .................................... 21

         1. "Walled Garden" Reading of Brand X ................. 21

         2. "Telecommunications Management" Exception ... 22

         3. Adjunct-to-Basic Precedent .................................. 32

         4. Functional Integration ........................................... 40

         II. Mobile Broadband Classification ................................... 46

         A. The 2018 Order's Provisions ....................................... 46

         B. Objections to the Classification .................................... 49

         1. Meaning of "Public Switched Network" .............. 50

         2. Whether Mobile Broadband Is an "Interconnected Service" ...................................... 5 4

         3. Whether Mobile Broadband Is the "Functional Equivalent" of a Commercial Mobile Service ...... 62

         III. Section 706 Authority .................................................... 66

         IV. Section 257 and the 2018 Order's Transparency Requirements ........................................... 68

         V. Arbitrary and Capricious Challenges ............................. 73

         A. Effects on Investment and Innovation ......................... 74

         B. Harms to Edge Providers and Consumers ................... 85

         1. Reliance on the Transparency Rule ...................... 87

         2. Reliance on Competition ....................................... 8 8

         3. Reliance on Antitrust and Consumer Protection Laws ..................................................... 91

         C. Public Safety ................................................................. 93

         D. Reliance Interests ........................................................ 100

         E. Pole Attachments ........................................................ 104

         F. Lifeline Program ......................................................... 109

         G. Cost-Benefit Analysis ................................................. 113

         H. Data Roaming Rates ................................................... 119

         I. Procedural Challenges ................................................ 120

         VI. Preemption ................................................................... 121

         A. Express and Ancillary Authority ................................ 122

         B. The Commission's Asserted Sources of Authority ... 126

         1. Impossibility Exception ....................................... 126

         2. Federal Policy of Nonregulation ......................... 130

         3. Case Precedent ..................................................... 133

         C. Conflict Preemption .................................................... 135

         VII. Conclusion ................................................................... 145

         In 2018, the Federal Communications Commission adopted an order classifying broadband Internet access service as an information service under Title I of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, Pub. L. 104–104, 110 Stat 56 ("the Act"). See In re Restoring Internet Freedom, 33 FCC Rcd. 311 (2018) ("2018 Order"). In so doing, the agency pursued a market-based, "light-touch" policy for governing the Internet and departed from its 2015 order that had imposed utility-style regulation under Title II of the Act.

         Petitioners––an array of Internet companies, non-profits, state and local governments, and other entities––bring a host of challenges to the 2018 Order. We find their objections unconvincing for the most part, though we vacate one portion of the 2018 Order and remand for further proceedings on three discrete points.

         The 2018 Order and today's litigation represent yet another iteration of a long-running debate regarding the regulation of the Internet. We rehearsed much of this complex history in United States Telecom Association v. FCC, 825 F.3d 674, 689–697 (D.C. Cir. 2016) ("USTA"), and see no need to recapitulate here what was so well and thoroughly said there. In the interest of reader-friendliness, though, we briefly review certain highlights necessary to understand this opinion.

         As relevant here, the 1996 Telecommunications Act creates two potential classifications for broadband Internet: "telecommunications services" under Title II of the Act and "information services" under Title I. These similar-sounding terms carry considerable significance: Title II entails common carrier status, see 47 U.S.C. § 153(51) (defining "telecommunications carrier"), and triggers an array of statutory restrictions and requirements (subject to forbearance at the Commission's election). For example, Title II "declar[es] * * * unlawful" "any * * * charge, practice, classification or regulation that is unjust or unreasonable." Id. § 201(b). By contrast, "information services" are exempted from common carriage status and, hence, Title II regulation.

         An analogous set of classifications applies to mobile broadband: A "commercial mobile service" is subject to common carrier status, see 47 U.S.C. § 332(c)(1), whereas a "private mobile service" is not, see id. § 332(c)(2).

         The Commission's authority under the Act includes classifying various services into the appropriate statutory categories. See National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980–981 (2005). In the years since the Act's passage, the Commission has exercised its classification authority with some frequency.

         Initially, in 1998, the Commission classified broadband over phone lines as a "telecommunications service." See In re Deployment of Wireline Services Offering Advanced Telecommunications Capability, 13 FCC Rcd. 24012 (1998).

         Just four years later, though, the Commission determined that cable broadband was an "information service," see In re Inquiry Concerning High-Speed Access to the Internet over Cable and Other Facilities ("Cable Modem Order"), 17 FCC Rcd. 4798 (2002), a choice that the Supreme Court upheld in Brand X, 545 U.S. 967. The agency then applied a similar classification to wireline and wireless broadband. See In re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC Rcd. 14853 (2005) ("2005 Wireline Broadband Order"); In re Appropriate Regulatory Treatment for Broadband Access to the Internet over Wireless Networks, 22 FCC Rcd. 5901 (2007) ("Wireless Broadband Order").

         But in 2015 the Commission took the view that broadband Internet access is, in fact, a "telecommunications service" and that mobile broadband is a "commercial mobile service." See In re Protecting and Promoting the Open Internet, 30 FCC Rcd. 5601 (2015) ("Title II Order"). In USTA, this court upheld that classification as reflecting a reasonable interpretation of the statute under Chevron's second step. See 825 F.3d at 701–706, 713–724; see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984).

         Once again, the Commission has switched its tack. In 2017, the Commission issued a notice of proposed rulemaking seeking to revert to its pre-2015 position, In re Restoring Internet Freedom, 32 FCC Rcd. 4434 (2017), and released the final order at issue in this case in January 2018.

         The 2018 Order accomplishes a number of objectives. First, and most importantly, it classifies broadband Internet as an "information service," see 2018 Order ¶¶ 26–64, and mobile broadband as a "private mobile service," see id. ¶¶ 65– 85. Second, relying on Section 257 of the Act (located in Title II but written so as to apply to Titles I through VI), the Commission adopts transparency rules intended to ensure that consumers have adequate data about Internet Service Providers' network practices. See id. ¶¶ 209–38. Third, the Commission undertakes a cost-benefit analysis, concluding that the benefits of a market-based, "light-touch" regime for Internet governance outweigh those of common carrier regulation under Title II, see id. ¶¶ 304–323, resting heavily on the combination of the transparency requirements imposed by the Commission under Section 257 with enforcement of existing antitrust and consumer protection laws, see id. ¶¶ 140– 154. The Commission likewise finds that the burdens of the Title II Order's conduct rules exceed their benefits. See id. ¶¶ 246–266.

         We uphold the 2018 Order, with two exceptions. First, the Court concludes that the Commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission "repealed or decided to refrain from imposing" in the Order or that is "more stringent" than the Order. 2018 Order ¶ 195. The Court accordingly vacates that portion of the Order. Second, we remand the Order to the agency on three discrete issues: (1) The Order failed to examine the implications of its decisions for public safety; (2) the Order does not sufficiently explain what reclassification will mean for regulation of pole attachments; and (3) the agency did not adequately address Petitioners' concerns about the effects of broadband reclassification on the Lifeline Program.

         I. Broadband Internet Classification

         The central issue before us is whether the Commission lawfully applied the statute in classifying broadband Internet access service as an "information service." We approach the issue through the lens of the Supreme Court's decision in Brand X, which upheld the Commission's 2002 refusal to classify cable broadband as a "telecommunications service." 545 U.S. at 974. The Commission's classification of cable modem as an "information service" was not challenged in Brand X, see id. at 987, but, given that "telecommunications service" and "information service" have been treated as mutually exclusive by the Commission since the late 1990s, see, e.g., 2018 Order ¶¶ 53, 62 & n.239; Title II Order ¶ 385, a premise Petitioners do not challenge, see Mozilla Br. 24, we view Brand X as binding precedent in this case.

         We start, of course, with the statutory definition. Section 47 U.S.C. § 153(24) reads:

The term "information service" means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications * * * but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

         The final clause is known as the "telecommunications management" exception. The Act defines "telecommunications service" (as distinct from "telecommunications," see id. § 153(50)), as follows:

The term "telecommunications service" means 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.

Id. § 153(53).

         The Commission appears to make two arguments for its classification. It states first that "broadband Internet access service necessarily has the capacity or potential ability to be used to engage in the activities within the information service definition-'generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications,'" 2018 Order ¶ 30 (quoting 47 U.S.C. § 153(24)), and on that basis alone merits an "information service" classification.

         The Commission then goes on to say: "But even if 'capability' were understood as requiring more of the information processing to be performed by the classified service itself, we find that broadband Internet access service meets that standard." 2018 Order ¶ 33. As we will see, the Commission regards this requirement as being met by specific information-processing features that are, in its view, functionally integrated with broadband service, particularly Domain Name Service ("DNS") and caching, about which more later. (Petitioners themselves treat the Commission's DNS/caching argument as "an alternative ground" for the Commission's classification. Mozilla Reply Br. 21.)

         Our review is governed by the familiar Chevron framework in which we defer to an agency's construction of an ambiguous provision in a statute that it administers if that construction is reasonable. See, e.g., American Elec. Power Serv. Corp. v. FCC, 708 F.3d 183, 186 (D.C. Cir. 2013) (The Chevron framework "means (within its domain) that a 'reasonable agency interpretation prevails.'") (quoting Northern Nat. Gas Co. v. FERC, 700 F.3d 11, 14 (D.C. Cir. 2012)). By the same token, if "Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said would be unreasonable." Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 218 n.4 (2009).

         At Chevron Step One, we ask "whether Congress has directly spoken to the precise question at issue." 467 U.S. at 842. Where "the intent of Congress is clear, that is the end of the matter; for [we], as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842–843. But if "the statute is silent or ambiguous with respect to the specific issue," we proceed to Chevron Step Two, where "the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843. However, we do not apply Chevron reflexively, and we find ambiguity only after exhausting ordinary tools of the judicial craft. Cf. Kisor v. Wilkie, 139 S.Ct. 2400, 2414–2415 (2019). All this of course proceeds in the shadow of Brand X, which itself applied Chevron to a similar issue.

         Applying these principles here, we hold that classifying broadband Internet access as an "information service" based on the functionalities of DNS and caching is "'a reasonable policy choice for the [Commission] to make' at Chevron's second step." Brand X, 545 U.S. at 997 (alteration in original) (quoting Chevron, 467 U.S. at 845). As we said in USTA, "Our job is to ensure that an agency has acted 'within the limits of [Congress's] delegation' of authority," 825 F.3d at 697 (quoting Chevron, 467 U.S. at 865), and "we do not 'inquire as to whether the agency's decision is wise as a policy matter; indeed, we are forbidden from substituting our judgment for that of the agency,'" id. (quoting Association of Am. Railroads v. ICC, 978 F.2d 737, 740 (D.C. Cir. 1992)); see also United States Telecom Ass'n v. FCC, 855 F.3d 381, 384 (D.C. Cir. 2017) ("[T]he [Brand X] Court made clear in its decision- over and over-that the Act left the [classification] to the agency's discretion." (Srinivasan, J., joined by Tatel, J., concurring in denial of rehearing en banc)).

         A. The Supreme Court's Decision in Brand X

         Brand X held that, by virtue of the ambiguity of the word "offering," the FCC could permissibly choose not to classify cable modem service as a "telecommunications service." Brand X, 545 U.S. at 973–974, 989–992. As to DNS and caching, the Brand X Court endorsed the Commission's argument that those functionalities can be relied on to classify cable modem service as an "information service." Challengers opposing the FCC had argued that when consumers "go[] beyond" certain Internet services offered by cable modem companies themselves-for example, beyond access to proprietary e-mail and Web pages (commonly referred to as the cable modem companies' "walled gardens")-the companies were "offering" a "telecommunications service" rather than an "information service." Id. at 998. The Court rejected this claim. It found that such a view "conflicts with the Commission's understanding of the nature of cable modem service," which the Court deemed "reasonable." Id.; cf. 2018 Order ¶ 51. The Court explained that-when a user accesses purely third-party content online-"he is equally using the information service provided by the cable company that offers him Internet access as when he accesses the company's own Web site, its e-mail service, or his personal Web page," Brand X, 545 U.S. at 999 (emphasis added), i.e., "walled garden" services. Why so?

         Brand X's answer, as relevant here, lay in DNS and caching. The argument proceeded in two steps-first, showing that DNS and caching themselves can properly fall under the "information service" rubric; second, showing that these "information services" are sufficiently integrated with the transmission element of broadband that it is reasonable to classify cable modem service as an "information service." See Brand X, 545 U.S. at 999–1000.

         As to the first step, the Court observed that "[a] user cannot reach a third party's Web site without DNS," Brand X, 545 U.S. at 999, which "among other things, matches the Web page addresses that end users type into their browsers (or 'click' on) with the Internet Protocol (IP) addresses of the servers containing the Web pages the users wish to access," id. at 987. It therefore saw it as "at least reasonable" to treat DNS itself "as a 'capability for acquiring * * * retrieving, utilizing, or making available' Web site addresses and therefore part of the information service cable companies provide." Id. at 999 (quoting 47 U.S.C. § 153(24)); see also id. at n.3 (rebutting dissent's claim that "DNS does not count as use of the information-processing capabilities of Internet service"). The Court applied a cognate analysis to caching, which "facilitates access to third-party Web pages by offering consumers the ability to store, or 'cache' popular content on local computer servers," id. at 999, "obviat[ing] the need for the end user to download anew information from third-party Web sites each time the consumer attempts to access them," id. at 999–1000. Thus the Court found "reasonable" the FCC's position that "subscribers can 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.'" Id. at 1000 (alterations in original) (some internal quotation marks omitted) (quoting In re Federal-State Joint Bd. on Universal Serv., 13 FCC Rcd. 11501, 11537–11538 ¶ 76 (1998) ("Stevens Report")).

         As to the second step, the Brand X Court endorsed the FCC's position that-because DNS and caching are "inextricably intertwined" with high-speed transmission-it was reasonable for the Commission not to treat the resulting package as an "offering" of a standalone "telecommunications service." 545 U.S. at 978–979, 989–991; see Cable Modem Order at 4823 ¶ 38 ("As currently provisioned, cable modem service is a single, integrated service that enables the subscriber to utilize Internet access service * * * ."). "[H]igh-speed transmission used to provide cable modem service is a functionally integrated component of [cable modem] service because it transmits data only in connection with the further processing of information and is necessary to provide Internet service." Brand X, 545 U.S. at 998 (emphasis added). DNS and caching, in turn, are two examples of such "further processing" integrated with the data transmission aspect of cable modem service. "[A] consumer cannot purchase Internet service without also purchasing a connection to the Internet and the transmission always occurs in connection with information processing," id. at 992, in the form of (for example) DNS or caching. Thus, according to the Supreme Court, the Commission reasonably concluded that cable modem service is not an offering of a standalone "telecommunications service," but, rather, an "information service"-which by definition is offered "via telecommunications." See id. at 989– 992; see also 2018 Order ¶ 52.

         B. DNS and Caching in the 2018 Order

         The reasoning in the 2018 Order tallies with the line of argument in Brand X described above. See, e.g., 2018 Order ¶¶ 26, 34, 41, 51, 53, 54, 55 n.207, 57. The Commission's principal claim is that "ISPs offer end users the capability to interact with information online * * * through a variety of functionally integrated information processing components that are part and parcel of the broadband Internet access service offering itself"-including DNS and caching. Id. ¶ 33. The Commission describes DNS and caching as "integrated information processing capabilities offered as part of broadband Internet access service to consumers today." Id. We hold that under Brand X this conclusion is reasonable.

         We note that the 2018 Order alluded to several "information processing functionalities inextricably intertwined with the underlying service" besides DNS and caching, such as "email, speed test servers, backup and support services, geolocation-based advertising, data storage, parental controls, unique programming content, spam protection, popup blockers, instant messaging services, on-the-go access to Wi-Fi hotspots, and various widgets, toolbars, and applications." 2018 Order ¶ 33 n.99. Although the 2018 Order states that these "further support the 'information service' classification," it did not find them "determinative," id., and mentioned them only briefly in a footnote. Thus we address DNS and caching only.

         In passages echoing Brand X, the Commission characterized the essential roles of DNS and caching. As to DNS, it observed that DNS is "indispensable to ordinary users as they navigate the Internet." 2018 Order ¶ 34 (quoting AT&T Comments at 73, J.A. 189). "[T]he absence of ISP-provided DNS would fundamentally change the online experience for the consumer." Id. This formulation is actually a good deal more cautious than that of the Court in Brand X, which declared that without DNS a "user cannot reach a third party's Web site." 545 U.S. at 999. In fact users who know the necessary IP addresses could enter them for each relevant server. But the Commission and the Court (the latter more emphatically) are making an undeniable pragmatic point-that use of the Web would be nightmarishly cumbersome without DNS.

         As to caching, the Commission explained that it "provides the capability to perform functions that fall within the information service definition," 2018 Order ¶ 41, including, but not limited to, "enabl[ing] the user to obtain more rapid retrieval of information through the network," id. (quoting Information Technology and Innovation Foundation ("ITIF") Comments at 13, WC Dkt. No. 17-108 (July 17, 2017) (quoting, in turn, Title II Order ¶ 372)). Operating a caching service entails running "complex algorithms to determine what information to store where and in what format," id. (quoting ITIF Comments at 13), so that "caching involves storing and retrieving capabilities required by the 'information service' definition," id. Thus the Commission added technical detail reinforcing the Brand X Court's statements as to caching. See 545 U.S. at 999–1000.

         The Commission then summarized these points, again in terms resonating with those in which Brand X had endorsed the 2002 Cable Modem Order. It argued that "ISPs offer a single, inextricably intertwined information service," 2018 Order ¶ 49, based in part on the functionalities of DNS and caching. It said that "all broadband Internet access services rely on DNS and commonly also rely on caching by ISPs," id. ¶ 48, and contended that DNS and caching should be "understood as part of a single, integrated information service offered by ISPs," id. ¶ 50; see also id. ¶ 42. It then maintained, drawing on Brand X, that "[w]here * * * a service involving transmission inextricably intertwines that transmission with information service capabilities-in the form of an integrated information service-there cannot be 'a "stand-alone" offering of telecommunications * * *,'" id. ¶ 53 (quoting Brand X, 545 U.S. at 989), in line with the Commission's stance in Brand X. "[A]n offering like broadband Internet access service that 'always and necessarily' includes integrated transmission and information service capabilities * * * [is] an information service." Id. ¶ 55 (quoting Brand X, 545 U.S. at 992).

         C. Objections to the Classification

         Petitioners raise numerous objections aimed to show that the Commission's reliance on DNS and caching for classifying broadband as an "information service" is unreasonable at Chevron's second step. We find them unconvincing.

         1. "Walled Garden" Reading of Brand X

         First, to short-circuit the Commission's reliance on Brand X, Petitioners try to characterize the Court's reasoning in that case as dependent on a vision of Internet providers as offering mainly access to their "walled gardens." They assert that in Brand X "the Court was focused on the [Broadband Internet Access Service ("BIAS")] providers' add-on information services, such as ISP-provided e-mail," and that "the Court had no occasion to consider the proper classification of a service combining telecommunications with nothing more than DNS and caching." Mozilla Br. 42. This reading is unpersuasive because it airbrushes out the lengthy discussion summarized above in which the Court finds "reasonable" the Commission's "information-service" classification even where "a consumer goes beyond [walled garden] offerings and accesses content provided by parties other than the cable company," Brand X, 545 U.S. at 998-by virtue of the functionalities of DNS and caching, see id. at 998–1000. We thus reject Petitioners' attempt to discredit the Commission's sensible reliance on Brand X's treatment of DNS and caching. See, e.g., 2018 Order ¶¶ 10, 34, 41, 51; see also Part I.C.4 infra (addressing Petitioners' related claims in functional integration context).

         2. "Telecommunications Management" Exception

         Petitioners assert that DNS and caching fall under the "telecommunications management" exception ("TME") and so cannot be relied on to justify an "information service" classification. See Mozilla Br. 43–46. We find that Petitioners' arguments do not hold up, either because they rest on a misreading of Brand X and USTA or do not adequately grapple with the Commission's reasonable explanation as to why DNS and caching fall outside that exception. See 2018 Order ¶¶ 36–38, 42–44. Our discussion here will be quite involved in part because Brand X did not directly confront whether DNS and caching may fall within the TME. See Brand X, 545 U.S. at 999 n.3.

         In deciding whether to slot DNS and caching under the TME the Commission confronted "archetypal Chevron questions[] about how best to construe an ambiguous term in light of competing policy interests." City of Arlington v. FCC, 569 U.S. 290, 304 (2013). "[I]f the implementing agency's construction is reasonable, Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation." Brand X, 545 U.S. at 980. And when an agency changes course, as it did here, it "must show that there are good reasons for the new policy," but "it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one." USTA, 825 F.3d at 707 (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009)). The Commission clears this bar.

         a. The Commission's Interpretation

         To begin with, Petitioners misconstrue USTA. As they do persistently, they gloss passages that find parts of the Title II Order to be permissible readings of the statute as mandating those readings-when the passages plainly do not do so. A case in point is the treatment of the TME. Petitioners say that "[t]his Court has already agreed that DNS and caching fall within the terms of the telecommunications management exception." Mozilla Br. 43 (emphasis added) (citing USTA, 825 F.3d at 705). Yet all we said in USTA was that we were "unpersuaded" that the FCC's "use of the telecommunications management exception was * * * unreasonable." USTA, 825 F.3d at 705. The Title II Order, in other words, adopted a permissible reading, though not a required one. This holding in no way bars the Commission from adopting a contrary view now-so long as it adequately justifies that view, as we find it has.

         Despite Petitioners' objections, we find that the 2018 Order engages in reasonable line-drawing for purposes of administering this amorphous exception. Relying on judicial precedent, Department of Justice policy (developed pursuant to its duty to see that the settlement of its antitrust suit against AT&T was lawfully implemented), and prior Commission statements, the 2018 Order seems to envision a continuum with two poles: a user-centered pole and network management-centered pole. It locates a given service on the continuum and classifies it as falling within or outside the TME according to which pole it appears closest to. If a service is "directed at * * * customers or end users," 2018 Order ¶ 36 (quoting United States v. Western Elec. Co., No. 82-0192, 1989 WL 119060, at *1 (D.D.C. Sept. 11, 1989)), or benefits users "in significant part," id. ¶ 38, or "predominantly," id. ¶ 42, it does not call for TME classification. We view this construction as an adequately justified departure from the Title II Order's understanding of the TME in the face of a dauntingly ambiguous provision with inevitably fuzzy borderline cases and complex and possibly inconsistent (or at least orthogonal) policy implications.

         Given the Commission's approach, it need not-and does not-deny that even those services properly classed under the TME benefit end users in some respect. It would be folly to deny as much given that the raison d'être of ISPs is to serve their customers. As one commenter notes, "To maintain * * * that something that is 'useful' to an end user cannot fall under the management exception is absurd, as the entire purpose of broadband is to be useful to end users * * * ." Public Knowledge Reply at 37, J.A. 2857; see 2018 Order ¶ 38 n.135; see also Mozilla Reply Br. 19–20.

         But a rule involving a spectrum or continuum commonly requires a decider to select a point where both ends are in play. Night and day are distinguishable, however difficult classification may be at dawn and dusk. The Commission's way of construing the TME and applying its continuum-based approach is not inconsistent with Public Knowledge's point that "the entire purpose of broadband is to be useful to end users." The Commission notes that its "focus remains on the purpose or use of the specific function in question and not merely whether the resulting service, as a whole, is useful to end-users." 2018 Order ¶ 38 n.135. While DNS might play a role in managing a network, the Commission reasonably concluded that DNS "is a function that is useful and essential to providing Internet access for the ordinary consumer," id. ¶ 36, and that these benefits to the end user predominate over any management function DNS might serve. The Commission says that caching "benefits" users through "rapid retrieval of information from a local cache," id. ¶ 42, and can also be used "as part of a service, such as DNS, which is predominantly to the benefit of the user (DNS caching)," id. (emphasis added). And it gives examples of services that in its view are genuine TME services: Simple Network Management Protocol ("SNMP"), Network Control Protocol ("NETCONF"), or Data Over Cable Service Interface Specification ("DOCSIS") bootfiles for controlling the configuration of cable modems. Id. ¶ 36 (quoting Sandvine Comments at 5, WC Dkt. No. 17-108 (July 14, 2017)). It observes that the Title II Order had essentially proceeded in a contrary manner, finding that the management-centered functionality of DNS predominated, so as to render it TME-worthy. "Although confronted with claims that DNS is, in significant part, designed to be useful to end-users rather than providers, the Title II Order nonetheless decided that it fell within the [TME]." Id. ¶ 38 (emphasis added). The Commission reasonably declined to follow this route (partly, as we shall see below, because it believed that it would cause the exception to swallow the rule in ways antithetical to its reading of Commission precedent and the Act's goals). It chose a different, and reasonable, alternative.

         b. Modification of Final Judgment Precedent

         In adopting its approach to the TME, the Commission rested on precedent from a line of judicial decisions interpreting the Modification of Final Judgment ("MFJ"), a consent decree entered into between the Department of Justice and AT&T in 1982 as part of the breakup of the AT&T monopoly to create a set of independent regional Bell Operating Companies ("BOCs"). See United States v. American Tel. & Tel. Co., 552 F.Supp. 131, 225–232 (D.D.C. 1982) (subsequent history omitted). This decree, which modified a 1956 consent decree and final judgment, spawned a long line of cases in which District Court Judge Harold Greene resolved conflicts over the decree's limits on the BOCs' permissible business ventures. The cases interpreted a broad array of terms of the consent decree, entered many modifications, and granted waivers, balancing a need to "avoid anticompetitive effects" (which might flow from BOC exploitation of their monopolies in telecommunications to dominate related services) with a hope of "bring[ing] th[e] nation closer to enjoyment of the full benefits of the information age" by facilitating "the efficient, rapid, and inexpensive dissemination of * * * information." United States v. Western Elec. Co., 714 F.Supp. 1, 3, 5 (D.D.C. 1988), aff'd in part, rev'd in part, 900 F.2d 283 (D.C. Cir. 1990).

         The Commission makes a good case for the persuasiveness of this precedent. First, the definition of "information service" in the 1996 Act––including the TME–– is lifted nearly verbatim from the 1982 consent decree. Compare American Tel. & Tel. Co., 552 F.Supp. at 229, with 47 U.S.C. § 153(24). Second, in the case on which the Commission principally relies, the court was interpreting the MFJ's TME equivalent and adopted a reading in keeping with its understanding of Department of Justice policy at the time.

         In Western Electric, Judge Greene addressed the question whether the consent decree permitted the BOCs to offer relay services for customers who use "telecommunications devices for the deaf" ("TDDs"). 1989 WL 119060, at *1. The court held that, because TDD services involve "transformation of information"––"the very crux and purpose of the TDD relay services"––they "f[e]ll squarely" within the definition of "information services," which covers the capability to "transform[] * * * information." Id. Accordingly offering the service ran afoul of Section II(D)(1) of the decree, see American Tel. & Tel. Co., 552 F.Supp. 131 at 227, banning the BOCs from providing information services, see Western Electric, 1989 WL 119060, at *1. The BOCs argued as a fallback position that TDD services fell within the TME. Id. Judge Greene made quick work of this, finding it "patently obvious that what is being sought * * * does not involve the internal management of Bell Atlantic" and hence was not TME-eligible. Id. In support of this conclusion the court explained, relying on the Department of Justice Competitive Impact Statement, that the TME "was directed at internal operations, not at services for customers or end users." Western Elec. Co., 1989 WL 119060, at *1 (emphasis added) (citing Department of Justice, Competitive Impact Statement in Connection with Proposed Modification of Final Judgment, Notice, 47 Fed. Reg. 7170, 7176 (Feb. 17, 1982)).

         It is this language that the Commission expressly invokes to ground its interpretation of the TME, stating that it (the Commission) "interpret[s] the concepts of 'management, control, or operation' in the [TME] consistent with" Judge Greene's analysis. See 2018 Order ¶ 36. And as we have noted above, the Commission rightly acknowledges that being "directed at" one end of a spectrum does not rule out embodying certain aspects from the other end. The agency was within its rights to treat Judge Greene's analysis––which in essence interpreted the statutory provision at issue and squared with the government's position supporting enforcement of the antitrust decree-as support for its construction of the TME. (As no party objected to the BOCs' offering of TDD services, and BOC entry into this activity posed no anticompetitive risk, the court granted a waiver for their provision. See Western Elec. Co., 1989 WL 119060, at *2.)

         The Commission offers an added reason to put stock in the MFJ precedent: It believed that Petitioners' approach risked causing the TME exception to swallow the "information services" category. It said, plausibly, that such an "expansive view" of the TME assigns it an outsized role, thereby "narrowing * * * the scope of information services" in a way that clashes with the Commission's pre-1996 Act approach to cabining the "basic services" category, see 2018 Order ¶ 38 & n.135, and the 1996 Act's imperative to "preserve the vibrant and competitive free market * * * for the Internet * * * unfettered by Federal or State regulation," id. ¶ 39 (quoting 47 U.S.C. § 230(b)(2)), which the Commission permissibly uses as a rationale to interpret a vague provision in a way that limits regulatory burdens. In sum, the Commission lawfully construed an ambiguous statutory phrase in a way that tallies with its policy judgment, as is its prerogative.

         Petitioners' objections to the Commission's classification of DNS and reliance on the MFJ do not convince us.

         Many of Petitioners' objections pillory a straw man. They state that "[t]he statute asks whether a function is used 'for the management, control, or operation of a telecommunications system,' not whether the function also benefits consumers." Mozilla Br. 45 (quoting 47 U.S.C. § 153(24)). But, as noted before, the Commission need not deny, for example, that "configuration management"––a function it slots under the TME, see 2018 Order ¶ 36 & n.126-benefits end users in some respect. See Mozilla Reply Br. 19–20. It can simply say that DNS/caching and (for example) configuration management, respectively, adjoin opposite ends of the spectrum, one meriting inclusion in the TME and the other not.

         Petitioners observe that DNS renders broadband Internet access "more efficient in ways that are generally invisible to users," a point that misses its mark entirely, or at best equivocates on the key point at issue. Mozilla Br. 45. While DNS is "invisible" in the sense that it is "under the hood," so to speak, it remains "essential to providing Internet access for the ordinary consumer." 2018 Order ¶ 36. Using a certain "configuration" tool or protocol might, say, make Internet traffic a bit faster or slower in the way that a metro's use of varying rail technologies might influence train speeds. But an absence of DNS would be something different altogether, hobbling ordinary users in navigating the Web, akin to a total absence of signage in a metro. Signage, unlike DNS, is of course quite apparent, but their user-centered purposes are alike for all practical purposes. (We address in Part I.C.4 Petitioners' separate argument that users' ability to obtain DNS from providers other than their ISPs precludes a finding of functional integration.) So the sense in which DNS is "invisible" to many end users is fully consistent with the agency's rationale for locating it nearer to the user-centric pole-and hence beyond the TME.

         Finally, an argument made by amici on behalf of Petitioners as to DNS arguably aligns with claims made by the Commission's amici and so may work in the agency's favor. Petitioners' amici assert in the context of functional integration (an issue to which we turn in Part I.C.4) that broadband Internet access is not functionally integrated with DNS because broadband access works perfectly well without DNS. "Internet architects deliberately created DNS to be entirely independent from the IP packet transfer function," Jordan/Peha Amicus Br. 17, and "a BIAS provider's DNS is an extraneous capability * * * not required for the core service," id. at 17–18 (emphasis added). But if DNS is "extraneous" to operating the network, it is at least debatable whether DNS is used in "the management, control, or operation of a telecommunications system or the management of a telecommunications service." Amici for the Commission make related points, observing that "[a]n app's DNS translation transaction ends before the BIAS transmission begins," "DNS transactions do not provide the BIAS provider with information about the best path to the destination," and they "do not have the power to either optimize or impair the BIAS provider network." Bennett et al., Amicus Br. 13. Thus it is at least reasonable not to view DNS as a network management tool. Id. at 13–14. Granted, Jordan and Peha remark that running DNS helps an ISP "reduce[] the volume of DNS queries passing through its network." Jordan/Peha Amicus Br. 18. But in the deferential posture of Chevron the points quoted above by Jordan/Peha seem in part to support the Commission's reading of the record (consistent with Bennett et al.) as showing that, whereas "little or nothing in the DNS look-up process is designed to help an ISP 'manage' its network," 2018 Order ¶ 36, DNS is "essential to providing Internet access for the ordinary consumer," id., for whom "DNS is a must," id. ¶ 34 (quoting Brand X, 545 U.S. at 999).

         The Commission extends the same logic to caching, though matters here are less obvious. It explains that caching "does not merely 'manage' an ISP's broadband Internet access service and underlying network," but "enables and enhances consumers' access to and use of information online." 2018 Order ¶ 42. It makes clear that ISP caching service is not just "instrumental to pure transmission" but, rather, "enhances access to information" by consumers by facilitating "rapid retrieval of information from a local cache or repository." Id. As the Title II Order had put it (albeit drawing a different lesson), "caching * * * provide[s] a benefit to subscribers in the form of faster, more efficient service," id. ¶ 368 n.1037, by "enabling the user to obtain 'more rapid retrieval of information' through the network," id. ¶ 372 (quoting Cable Modem Order, 17 FCC Rcd. at 4810 ¶ 17 & n.76); cf. Brand X, 545 U.S. at 999–1000 (stating that "[c]acheing [sic] obviates the need for the end user to download anew information from third-party Web sites * * *, thereby increasing the speed of information retrieval").

         Granted, some ISPs describe caching in terms indicating that it is a network management practice, and caching can help reduce ISPs' costs. See Jordan/Peha Amicus Br. 20–21. But these facts are not determinative. The Commission is entitled to draw its own conclusions based on its (permissible) interpretation of the TME, so long as consistent with the record. Here it has done that. The Commission found (without contradiction in the record) that caching "enables and enhances consumers' access to and use of information online." 2018 Order ¶ 42. In particular, "[t]he record reflects that without caching, broadband Internet access service would be a significantly inferior experience for the consumer, particularly for customers in remote areas, requiring additional time and network capacity for retrieval of information from the Internet." Id. That is so, the Commission maintains, even though encrypted traffic does not use caching, because "truly pervasive encryption on the Internet is still a long way off[] and * * * many sites still do not encrypt." Id. at n.147 (citation omitted).

         3. Adjunct-to-Basic Precedent

         Finally, Petitioners raise a host of objections arising from the Commission's "adjunct-to-basic" precedent, developed in the Computer Inquiries orders issued by the Commission. See In re Amendment of Section 64.702 of the Commission's Rules and Regulations (Second Computer Inquiry), 77 F.C.C.2d 384 (1980) ("Second Computer Inquiry").

         Because in our view the precedents in this area are murky, raising convoluted questions of grafting older Commission interpretations onto the "information services" definition as applied to broadband Internet service, we find neither side's recounting of adjunct-to-basic precedent fully compelling. Even though Congress's creation of the TME may fairly be said to have "[t]rack[ed]" adjunct-to-basic in certain respects, USTA, 825 F.3d at 691, the Commission reasonably refused to be bound by facets of the analogy filtered through the lens of the Title II Order. The Commission's chief task was to interpret the TME's statutory text in a coherent, workable fashion and offer a reasonable rationale for altering its course, not to demonstrate that its reading is a tight fit with every aspect of adjunct-to-basic precedent. In fact, as we will see, that precedent is not the seamless web of Petitioners' vision.

         Petitioners try to catch the Commission in a contradiction in a two-step approach. The agency, as we have seen, locates DNS and caching outside the TME. First, Petitioners invoke Commission precedent seeming to suggest that all or most adjunct-to-basic services would fall under the TME. Second, they observe that––whereas paradigmatic examples of adjunct-to-basic services such as speed dialing and call forwarding are undeniably useful to consumers and, per step one, belong under the TME––the Commission can give no satisfactory explanation for excluding DNS and caching from the TME. In particular, Petitioners and commenters analogize DNS to ordinary directory assistance, which the Commission has dubbed adjunct-to-basic, since both services help direct users to their chosen endpoints. See, e.g., Mozilla Br. 46; Open Technology Institute ("OTI") New America Comments at 33– 34, J.A. 1631–1632. Whence the difference?

         To make sense of these claims and the Commission's response, we need to review the basic terms. To preview, even if there are incongruities in the Commission's treatment of the TME vis-à-vis the adjunct-to-basic idea, we see them as byproducts of drawing imperfect analogies.

         The FCC created a distinction between "basic services" and "enhanced services" in its Second Computer Inquiry, with the latter concept defined as follows:

[T]he term "enhanced service" shall refer to services[] offered over common carrier transmission facilities used in interstate communications, which employ computer processing applications that act on the format, content, code, protocol or similar aspects of the subscriber's transmitted information; provide the subscriber additional, different, or restructured information; or involve subscriber interaction with stored information. Enhanced services are not regulated under Title II of the Act.

Second Computer Inquiry, 77 F.C.C.2d at 498; see also 47 C.F.R. § 64.702(a).[1] In contrast,

In offering a basic transmission service * * * a carrier essentially offers a pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information.

Second Computer Inquiry, 77 F.C.C.2d at 420 ¶ 96; see also id. at 419–420 ¶ 95 ("[A] basic transmission service should be limited to the offering of transmission capacity between two or more points suitable for a user's transmission needs and subject only to the technical parameters of fidelity or distortion criteria, or other conditioning.").

         The most contested category is a third: adjunct-to-basic. It arose to accommodate the reality that providers of ordinary telephone services wished to offer new technologies facilitating that service-technologies that would quite plainly fall under the "enhanced services" definition, though ordinary phone service was indisputably a "basic service." To square the circle and avoid complexities of hybrid treatment, the Commission created an adjunct-to-basic bucket:

In the [1985] NATA Centrex proceeding, the Commission defined adjunct services as services that 'facilitate the provision of basic services without altering their fundamental character,' and determined that such services should be treated as basic services for purposes of the Computer II rules, even though they might fall within possible literal readings of the definition of enhanced services.

In re Bell Operating Companies, Petitions for Forbearance from the Application of Section 272 of the Commc'ns Act of 1934, as Amended, to Certain Activities, 13 FCC Rcd. 2627, 2639 ¶ 18 (CCB 1998) ("272 Forbearance Order") (citation omitted).

         The Commission has set out two necessary criteria for a service to qualify as adjunct-to-basic:

[C]arriers may use some of the processing and storage capabilities within their networks to offer optional tariffed features as 'adjunct to basic' services, if the features: (1) are intended to facilitate the use of traditional telephone service; and (2) do not alter the fundamental character of telephone service.

In re Establishment of a Funding Mechanism for Interstate Operator Servs. for the Deaf, 11 FCC Rcd. 6808, 6816–6817 ¶ 16 (1996) ("Operator Services Order").

         Which services qualify as adjunct-to-basic? The answer covers a remarkably wide gamut, including "inter alia, speed dialing, call forwarding, computer-provided directory assistance, call monitoring, caller i.d., call tracing, call blocking, call return, repeat dialing, and call tracking, as well as certain Centrex features." In re Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Commc'ns Act of 1934, as Amended, 11 FCC Rcd. 21905, 21958 ¶ 107 n.245 (1996) ("Non-Accounting Safeguards Order"). The same goes for "communications between a subscriber and the network itself for call setup, call routing, call cessation, calling or called party identification, billing, and accounting," In re N. Am. Telecommunications Ass'n Petition for Declaratory Ruling Under Section 64.702 of the Commission's Rules Regarding the Integration of Centrex, Enhanced Servs., and Customer Premises Equip., 3 FCC Rcd. 4385, 4386 ¶ 11 (1988) ("Centrex Order") (citation omitted), and prepaid calling cards with built-in advertisements, see American Tel. & Tel. Co. v. FCC, 454 F.3d 329, 331 (D.C. Cir. 2006)-though not "talking yellow pages" with advertisements, see id. at 333; see also Northwest Bell Tel. Co. Petition for Declaratory Ruling, 2 FCC Rcd. 5986, 5988 ¶ 20 (1987).

         Having laid out the key terms, we return to the parties' claims. We are satisfied with the Commission's prioritization of the MFJ precedent and its way of squaring the adjunct-to-basic precedent with its treatment of DNS and caching.

         First, as explained above, the Commission had adequate grounds to focus on the 1982 MFJ's definition of "information service," which the 1996 Act took over virtually word for word.

         Second, devising a coherent and workable test for applying the statutory TME permissibly takes precedence in the Commission's analysis over attempts to reach synthetic conformity between adjunct-to-basic precedent and the 1996 Act's terms. As the Court said in Brand X, we should "leav[e] federal telecommunications policy in this technical and complex area to be set by the Commission, not by warring analogies," 545 U.S. at 992, whether crafted by courts, litigants, or Commissions past.

         Third, the Commission's historical approach to adjunct-to-basic has hardly been clear-cut in its own right. As we have previously said, "it is difficult to discern any clear policy" in the Commission's application of its "various formulations" of what counts as adjunct-to-basic, so that "[t]he Commission's rulings reflect a highly fact-specific, case-by-case style of adjudication." American Tel. & Tel. Co., 454 F.3d at 333. Given this lack of cohesion, we can hardly fault the current Commission for discounting the persuasive force of adjunct-to-basic analogies in interpreting and applying the 1996 Act's TME in light of its policy views.

         Furthermore, the Commission's definition of adjunct-to-basic services does not, as a linguistic matter, force the Commission's hand in interpreting the TME. Just because an adjunct-to-basic service like speed dialing or directory assistance "facilitate[s]" telephone service, USTA, 825 F.3d at 691, it hardly follows automatically that it also qualifies under the text of the TME, since it requires no contortion of English to say that (for example) directory assistance is, by and large, not used to "manage[]" or "control" or "operat[e]" a telecommunications system or service, 47 U.S.C. § 153(24).

         So the Commission had ample basis to dub the adjunct-to-basic line of analysis "potentially ambiguous precedent," 2018 Order ¶ 39, and depart from what it regarded as "loose analogies" devised in the Title II Order. "Because broadband Internet access service was not directly addressed in pre-1996 Act Computer Inquiries and MFJ precedent, analogies to functions that were classified under that precedent must account for potentially distinguishing characteristics" as they relate to "technical details" and "regulatory backdrop." Id. These claims are not unreasonable. Whatever the Commission's prior views on the relationship between basic services and their adjuncts, it is reasonable for the Commission to say that that rubric need not transfer over neatly to what it claims is not a basic service-broadband Internet access. See id. ¶ 40 n.139. Hence there is little basis for the claim that adjunct-to-basic lore requires the Commission to jettison the lesson of Judge Greene's TDD ruling. See Western Elec. Co., 1989 WL 119060, at *1; see also Mozilla Br. 44.

         Fourth, the Commission identifies precedent from the Computer Inquiries themselves to support a reading of the TME as requiring location of particular services on a spectrum running between utility to carriers and utility to end users. A ruling invoked by the 2018 Order allowed BOCs to enable the tracing of Emergency 911 ("E911") calls to the right location. The FCC's Common Carrier Bureau said:

Although the "telecommunications management exception" encompasses adjunct services, the storage and retrieval functions associated with the BOCs' automatic location identification databases provide information that is useful to end users, rather than carriers. As a consequence, those functions are not adjunct services and cannot be classified as telecommunications services on that basis.

272 Forbearance Order, 13 FCC Rcd. at 2639 ¶ 18; see 2018 Order ¶ 38 n.131. While the Title II Order had sought to distinguish this precedent on the ground that the benefit of E911 service was "unrelated to telecommunications," Title II Order ¶ 368, it does not seem unreasonable for the current 2018 Order to assume a broader view of telecommunications in its invocation of this precedent.

         Fifth, in any case, we are satisfied with the agency's refusal to treat DNS like speed dialing, call forwarding, and directory assistance.

         As already noted, the Commission has adequate grounds not to hold its interpretation of the TME hostage to a chimerical hope for a perfect match-up with adjunct-to-basic precedent, in part because the regulatory history is so convoluted as to render the likelihood of a "perfect" matchup remote. So even if the Commission's interpretation of the TME comes at the cost of certain incongruities with the concept of adjunct-to-basic services, it reasonably regards alignment with the text and purposes of the 1996 Act, and the unifying policy vision animating the 2018 Order, as more weighty factors. See 2018 Order ¶ 39.

         Moreover, implicit in the Commission's analysis is a recognition of a key difference between the above services and, at the least, DNS. Those other services are plausibly described as adjunct-to-basic, i.e., "ancillary" and "optional" in relation to telephone service. Centrex Order, 3 FCC Rcd. at 4389 ¶ 30 (quoting Second Computer Inquiry, 77 F.C.C.2d at 421 ¶ 98); cf. 2018 Order ¶ 40 n.138. Not so, the Commission says, for DNS, which "[f]or an Internet user * * * is a must." 2018 Order ¶ 34 (quoting Brand X, 545 U.S. at 999) (emphasis added) (internal quotation mark omitted). So DNS might well be seen to "alter the fundamental character of [the] service," and would thus fail to satisfy one of the two criteria specified by the Commission (and quoted above) for a service to qualify as adjunct-to-basic. Operator Services Order, 11 FCC Rcd. at 6816–6817 ¶ 16. This seems to distinguish DNS from such functions as speed dialing, call forwarding, and directory assistance, and thus square the Commission's current treatment of DNS with the Commission's prior treatment of those services as adjunct-to-basic, consistent with Judge Greene's treatment of a certain type of directory assistance as falling within the TME. See Western Elec. Co., 1989 WL 119060, *1 n.7; Mozilla Br. 44–45. (While some adjunct-to-basic services seem non-optional in certain respects, like "communications between a subscriber and the network itself for call setup * * * [and] call cessation," Centrex Order, 3 FCC Rcd. at 4386 ¶ 11, this point simply reinforces the miscellaneous nature of the adjunct-to-basic category, where "it is difficult to discern any clear policy," American Tel. & Tel. Co., 454 F.3d at 333.)

         We find the above considerations sufficient to uphold the agency's position and hence do not address analogies to other MFJ precedents on technologies and services. See 2018 Order ¶¶ 35, 43–44. Even if Petitioners offer plausible interpretations of rulings on address translation and third-party storage services provided by the BOCs, we believe the Commission has given a sufficiently sturdy justification for treating DNS and caching as non-TME services apart from other MFJ-linked analogies. It has set forth a plausible reading of the highly ambiguous TME, adequately explained its basis for giving more credence to judicial MFJ precedent than to the Computer Inquiries in this context, and made a reasonable case as to why DNS and caching need not be classed under the TME.

         4. Functional Integration

         Petitioners then open a new-and final-line of attack: Even if DNS and caching are "information services," the Commission's reliance on them to classify broadband as an "information service" was still unreasonable. Mozilla Br. 46. They make three arguments in support of this thesis, but none holds water. As a threshold matter, we note that Brand X already held it reasonable for the Commission to conclude that DNS and caching are information services functionally integrated with the offering of "Internet access [service]" "to members of the public." Brand X, 545 U.S. at 1000 (quoting Stevens Report ¶ 79).

         Petitioners first play up the facts that users may obtain DNS from providers other than their ISPs and that caching is not utterly indispensable. According to them, because "a user can easily configure her computer to use a third-party DNS server and content can be delivered even without caching," Mozilla Br. 46, especially in the context of encrypted communications that occur without caching, id. at 46–47, it follows that DNS and caching are not "inextricably intertwined with the transmission component" of broadband, id. at 46. These facts ostensibly yield a "contradict[ion]" in the agency's position, since one's ISP-provided DNS and caching are not "indispensable" after all. Id.

         We find the objection misguided. As the Commission explained, "[T]he fact that some consumers obtain [DNS and caching] from third-party alternatives is not a basis for ignoring the capabilities that a broadband provider actually 'offers.'" 2018 Order ¶ 50. Given the ambiguity in the term "offe[r]," see Brand X, 545 U.S. at 989–990, the Commission's preferred reading of that term rather than the Title II Order's "narrower interpretation," 2018 Order ¶ 50-which would foreclose the Commission's view quoted above-is permissible. In elucidating the ambiguity, Brand X said that "[t]he entire question is whether the products here are functionally integrated (like the components of a car) or functionally separate (like pets and leashes). That 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." 545 U.S. at 991. The agency reasonably concluded that, notwithstanding the availability of alternative sources of DNS, a market where "the vast majority of ordinary consumers"-"[a]pproximately 97 percent"-"rely upon the DNS functionality provided by their ISP," 2 ...

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