108
seek to exercise its discretion and explore business practices
prohibited by the rules. Ord v. District of Columbia, 587 F.3d
1136, 1143 (D.C. Cir. 2009). Alamo has thus adequately
manifested its “intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed
by [regulation].” Driehaus, 134 S. Ct. at 2342 (internal
quotation marks omitted). Its inability to follow through on
that intention constitutes an injury in fact for purposes of preenforcement review of the rules.
That conclusion is fortified by the “strong presumption of
judicial review under the Administrative Procedure Act” and
the understanding that “the courts’ willingness to permit preenforcement review is at its peak when claims are rooted in
the First Amendment.”
New York Republican State
Committee v. SEC, 799 F.3d 1126, 1135 (D.C. Cir. 2015)
(internal quotation marks omitted). In order “to avoid the
chilling effects that come from unnecessarily expansive
proscriptions on speech,” “courts have shown special
solicitude” to such claims. Id. at 1135–36.
Because Alamo’s standing enables us to consider the
First Amendment arguments with respect to all three brightline rules, we have no need to consider Berninger’s standing.
See Rumsfeld v. Forum for Academic & Institutional Rights,
Inc., 547 U.S. 47, 52 n.2 (2006).
B.
Alamo argues that the open internet rules violate the First
Amendment by forcing broadband providers to transmit
speech with which they might disagree. We are unpersuaded.
We have concluded that the Commission’s reclassification of
broadband service as common carriage is a permissible
exercise of its Title II authority, and Alamo does not
challenge that determination. Common carriers have long
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