89
Operating Cos. GTOC Tariff No. 1, GTOC Transmittal No.
1148, 13 FCC Rcd. 22,466, 22,474–83 ¶¶ 16–32 (1998).
“The Internet’s inherently global and open architecture,” the
Commission reasoned, “mak[es] end-to-end jurisdictional
analysis extremely difficult—if not impossible—when the
services at issue involve the Internet.” 2015 Open Internet
Order, 30 FCC Rcd. at 5803 ¶ 431 (internal quotation marks
omitted). The Commission also determined that because it
had found the section 10 criteria met as to section 251, it had
no reason to “resolve whether broadband Internet access
service could constitute ‘telephone exchange service’” under
section 251. Id. at 5851 ¶ 513 n.1575.
We approved the Commission’s jurisdictional approach
in Core Communications, Inc. v. FCC, 592 F.3d 139, 144
(D.C. Cir. 2010). Although the petitioners in that case never
challenged the general framework of the Commission’s “endto-end analysis, . . . under which the classification of a
communication as local or interstate turns on whether its
origin and destination are in the same state,” id. at 142, we
recognized that
[d]ial-up internet traffic is special because it involves
interstate communications that are delivered through
local calls; it thus simultaneously implicates the
regimes of both § 201 and of §§ 251–252. Neither
regime is a subset of the other. They intersect, and
dial-up internet traffic falls within that intersection.
Given this overlap, § 251(i)’s specific saving of the
Commission’s authority under § 201 against any
negative implications from § 251 renders the
Commission’s reading of the provisions at least
reasonable.
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