46
competition the touchstone for refusal to apply Title II.”
Concurring & Dissenting Op. at 12. All of those cases,
however, predate the 1996 Telecommunications Act, which
established the statutory test that Brand X considered and that
we apply here.
US Telecom raises a distinct arbitrary and capricious
argument. It contends that the Commission needed to satisfy
a heightened standard for justifying its reclassification. As
US Telecom points out, the Supreme Court has held that “the
APA requires an agency to provide more substantial
justification when ‘its new policy rests upon factual findings
that contradict those which underlay its prior policy; or when
its prior policy has engendered serious reliance interests that
must be taken into account.’” Perez v. Mortgage Bankers
Ass’n, 135 S. Ct. 1199, 1209 (2015) (quoting Fox Television,
556 U.S. at 515). “[I]t is not that further justification is
demanded by the mere fact of policy change[,] but that a
reasoned explanation is needed for disregarding facts and
circumstances that underlay or were engendered by the prior
policy.” Fox Television, 556 U.S. at 515–16. Put another
way, “[i]t would be arbitrary and capricious to ignore such
matters.” Id. at 515.
US Telecom believes that the Commission failed to
satisfy the heightened standard because it departed from
factual findings it made regarding consumer perception in its
2002 Cable Broadband Order without pointing to any changes
in how consumers actually view broadband. According to US
Telecom, even in 2002, when the Commission classified
broadband as an information service, consumers used
broadband primarily as a means to access third-party content
and broadband providers marketed their services based on
speed. As we have explained, however, although in 2002 the
Commission found that consumers perceived an integrated
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