88
support, Full Service Network relies on our decision in Bell
Atlantic Telephone Cos. v. FCC, 24 F.3d 1441 (D.C. Cir.
1994), in which we refused to uphold under section 201 a
Commission rule requiring physical co-location. The rule, we
reasoned, would unnecessarily raise Takings Clause issues
because the Commission could use virtual co-location, where
local exchange carriers maintain equipment that third-party
providers can use, to implement section 201’s “physical
connection” requirement without raising constitutional issues.
Id. at 1446. So while Full Service Network is correct that Bell
Atlantic imposes one limit on the Commission’s reach under
section 201, that case also demonstrates that the Commission
retains authority to regulate network connections under that
section.
Next, Full Service Network argues that section 152(b),
which “prevent[s] the Commission from taking intrastate
action solely because it further[s] an interstate goal,” AT&T
Corp. v. Iowa Utilities Board, 525 U.S. 366, 381 (1999),
prohibits the Commission from “us[ing] its interstate
authority under [section] 201 to regulate broadband Internet
access service that is an intrastate ‘telephone exchange
service’ under the [Communications] Act,” Full Service
Network Pet’rs’ Br. 17 (emphasis omitted) (quoting 47 U.S.C.
§ 153(54)).
According to Full Service Network, the
Commission erred by refusing to determine whether
broadband service qualifies as a “telephone exchange service”
because that definition would prevent the Commission from
classifying the internet as jurisdictionally interstate.
In the Order, the Commission “reaffirm[ed] [its]
longstanding conclusion” that broadband service falls within
its jurisdiction as an interstate service. 2015 Open Internet
Order, 30 FCC Rcd. at 5803 ¶ 431; see Cable Broadband
Order, 17 FCC Rcd. at 4832 ¶ 59; In re GTE Telephone
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