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also argue that Congress’s grants to the Commission of
“narrow authority over circumscribed aspects of the Internet”
indicate that the Commission lacks “the authority it claims
here.” Members of Congress for Pet’rs Amicus Br. 9. None
of the statutes amici cite, however, have anything to do with
the sort of common carrier regulations at issue here.
Full Service Network also urges us to resolve this case at
Chevron step one, though it takes the opposite position of US
Telecom. According to Full Service Network, broadband is
unambiguously a telecommunications service because it
functions primarily as a transmission service. That argument
clearly fails in light of Brand X, which held that classification
of broadband as an information service was permissible.
Brand X also requires that we reject intervenor
TechFreedom’s argument that the reclassification issue is
controlled by the Supreme Court’s decision in FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120 (2000). In that
case, the Court held that “Congress ha[d] clearly precluded
the FDA from asserting jurisdiction to regulate tobacco
products.” Id. at 126. The Court emphasized that the FDA
had disclaimed any authority to regulate tobacco products for
more than eighty years and that Congress had repeatedly
legislated against this background.
Id. at 143–59.
Furthermore, the Court observed, if the FDA did have
authority to regulate the tobacco industry, given its statutory
obligations and its factual findings regarding the harmful
effects of tobacco, the FDA would have had to ban tobacco
products, a result clearly contrary to congressional intent. See
id. at 135–43. If Congress sought to “delegate a decision of
such economic and political significance” to the agency, the
Court noted, it would have done so clearly. Id. at 160.
Relying on Brown & Williamson, TechFreedom urges us to
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