50 under this court’s NARUC test. See National Ass’n of Regulatory Utility Commissioners v. FCC, 533 F.2d 601 (D.C. Cir. 1976); National Ass’n of Regulatory Utility Commissioners v. FCC, 525 F.2d 630 (D.C. Cir. 1976). Under that test, “a carrier has to be regulated as a common carrier if it will make capacity available to the public indifferently or if the public interest requires common carrier operation.” Virgin Islands Telephone Corp. v. FCC, 198 F.3d 921, 924 (D.C. Cir. 1999) (internal quotation marks omitted). As the Commission points out, however, this argument ignores that the Communications Act “provides that ‘[a] telecommunications carrier shall be treated as a common carrier . . . to the extent that it is engaged in providing telecommunications services,’” Resp’ts’ Br. 79 (alteration and omission in original) (quoting 47 U.S.C. § 153(51)), and that “[t]he Act thus authorizes—indeed, requires—broadband providers to be treated as common carriers once they are found to offer telecommunications service,” id. The Communications Act in turn defines a telecommunications service as “the offering of telecommunications for a fee directly to the public,” 47 U.S.C. § 153(53), and the Commission found that broadband providers satisfy this statutory test: “[h]aving affirmatively determined that broadband Internet access service involves ‘telecommunications,’ we also find . . . that broadband Internet access service providers offer broadband Internet access service ‘directly to the public.’” 2015 Open Internet Order, 30 FCC Rcd. at 5763 ¶ 363. Other than challenging the Commission’s interpretation of the term “offering”—an argument which we have already rejected, see supra section II.B.1—US Telecom never questions the Commission’s application of the statute’s test for common carriage. Moreover, US Telecom cites no case, nor are we aware of one, holding that when the Commission invokes the statutory test for common carriage, it must also apply the NARUC test.

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