50
under this court’s NARUC test. See National Ass’n of
Regulatory Utility Commissioners v. FCC, 533 F.2d 601
(D.C. Cir. 1976); National Ass’n of Regulatory Utility
Commissioners v. FCC, 525 F.2d 630 (D.C. Cir. 1976).
Under that test, “a carrier has to be regulated as a common
carrier if it will make capacity available to the public
indifferently or if the public interest requires common carrier
operation.” Virgin Islands Telephone Corp. v. FCC, 198 F.3d
921, 924 (D.C. Cir. 1999) (internal quotation marks omitted).
As the Commission points out, however, this argument
ignores that the Communications Act “provides that ‘[a]
telecommunications carrier shall be treated as a common
carrier . . . to the extent that it is engaged in providing
telecommunications services,’” Resp’ts’ Br. 79 (alteration and
omission in original) (quoting 47 U.S.C. § 153(51)), and that
“[t]he Act thus authorizes—indeed, requires—broadband
providers to be treated as common carriers once they are
found to offer telecommunications service,” id.
The
Communications Act in turn defines a telecommunications
service as “the offering of telecommunications for a fee
directly to the public,” 47 U.S.C. § 153(53), and the
Commission found that broadband providers satisfy this
statutory test:
“[h]aving affirmatively determined that
broadband
Internet
access
service
involves
‘telecommunications,’ we also find . . . that broadband
Internet access service providers offer broadband Internet
access service ‘directly to the public.’” 2015 Open Internet
Order, 30 FCC Rcd. at 5763 ¶ 363. Other than challenging
the Commission’s interpretation of the term “offering”—an
argument which we have already rejected, see supra section
II.B.1—US Telecom never questions the Commission’s
application of the statute’s test for common carriage.
Moreover, US Telecom cites no case, nor are we aware of
one, holding that when the Commission invokes the statutory
test for common carriage, it must also apply the NARUC test.
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