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of 47 U.S.C. §§ 201, 202 (part II.A) and then in the context of
§ 706 of the 1996 Act (part II.B).
II
Having reclassified broadband service under Title II, the
Commission has relied on two specific provisions to sustain
its actions: § 201(b) of the Communications Act, 47 U.S.C.
§ 201(b), and § 706 of the Telecommunications Act of 1996,
47 U.S.C. § 1302. The petitioners contend that neither
provides adequate support for the Commission’s actions.
Furthermore, as just mentioned, the Commission’s arguments
here bear directly on the reasonableness of the reclassification
decision itself.
A
Petitioners Alamo Broadband Inc. and Daniel Berninger
(“Alamo-Berninger”) argue that even if Title II could properly
be applied to broadband service, that Title gives the
Commission no authority to prohibit reasonable rate
distinctions. Alamo-Berninger Br. 17-19. Berninger is a
would-be edge provider working on new technology that he
believes could provide much enhanced telephone service—but
only if he could be assured that “latency, jitter, and packet loss
in the transmission of a communication will [not] threaten
voice quality and destroy the value proposition of a highdefinition service.” Declaration of Daniel Berninger, October
13, 2015, at 2. He is ready to pay for the assurance of highquality service, and asserts that the Commission’s ban on paid
prioritization
will
obstruct
successful
commercial
development of his innovation. Berninger appears to be
exactly the sort of small, innovative edge provider that the
Commission claims its Order is designed to assist. In the
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