11 propositions as the basis for its conclusion. For example, the Brand X majority noted that in reaching its initial classification decision the Commission had concluded that “broadband services should exist in a minimal regulatory environment that promotes investment and innovation in a competitive market.” Id. ¶ 5, quoted by Brand X, 545 U.S. at 1001 (internal quotation marks omitted). But the Commission has now discovered, for reasons still obscure, that a “minimal regulatory environment,” far from promoting investment and innovation, retards them, so that the Commission must replace that environment with a regime that is far from “minimal.” And when parties claimed that the Declaratory Ruling was inconsistent with the Commission’s decision to subject facilities-based enhanced services providers to an obligation to offer their wires on a common-carrier basis to competing enhanced-services providers, In re Amendment of Sections 64.702 of the Commission’s Rules and Regulations (Third Computer Inquiry), 104 F.C.C. 2d 958, 964 ¶ 4 (1986), the Brand X Court responded by looking to the policy reasons that the Commission itself had invoked, reasons grounded in concern over monopoly. The Court said: In the Computer II rules, the Commission subjected facilities-based providers to common-carrier duties not because of the nature of the “offering” made by those carriers, but rather because of the concern that local telephone companies would abuse the monopoly power they possessed by virtue of the “bottleneck” local telephone facilities they owned. . . . The differential treatment of facilities-based carriers was therefore a function not of the definitions of “enhanced service” and “basic service,” but instead of a choice by the Commission to regulate more stringently, in its discretion, certain entities that provided enhanced service.

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