48
fail to “account” for reliance interests. Fox Television, 556
U.S. at 515. Quite to the contrary, it expressly considered the
claims of reliance and found that “the regulatory status of
broadband Internet access service appears to have, at most, an
indirect effect (along with many other factors) on
investment.” 2015 Open Internet Order, 30 FCC Rcd. at 5760
¶ 360. The Commission explained that “the key drivers of
investment are demand and competition,” not the form of
regulation. Id. at 5792 ¶ 412. Additionally, the Commission
noted that its past regulatory treatment of broadband likely
had a particularly small effect on investment because the
regulatory status of broadband service was settled for only a
short period of time. Id. at 5760–61 ¶ 360. As the
Commission pointed out, just five years after Brand X upheld
the Commission’s classification of broadband as an
information service, the Commission asked in a notice of
inquiry whether it should reclassify broadband as a
telecommunications service. Id. at 5760 ¶ 360.
The partial dissent finds the Commission’s explanation
insufficient and concludes that it failed “to make a serious
assessment of [broadband providers’] reliance.” Concurring
& Dissenting Op. at 8. With regard to the Commission’s
conclusion that the regulatory status of broadband had only an
indirect effect on investment, the partial dissent believes that
this explanation is an “irrelevance” because “[t]he proposition
that ‘many other factors’ affect investment is a truism” and
thus the explanation “tells us little about how much” the prior
classification “accounts for the current robust broadband
infrastructure.” Id. at 5. But the Commission did more than
simply state that the regulatory classification of broadband
was one of many relevant factors. It went on to explain why
other factors, namely, increased demand for broadband and
increased competition to provide it, were more significant
drivers of broadband investment. 2015 Open Internet Order,
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