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to broadband providers subject to the Order. Unlike with the
printed page and cable technology, broadband providers face
no such constraints limiting the range of potential content
they can make available to subscribers. Broadband providers
thus are not required to make, nor have they traditionally
made, editorial decisions about which speech to transmit. See
2015 Open Internet Order, 30 FCC Rcd. at 5753 ¶ 347, 5756
¶ 352, 5869–70 ¶ 549. In that regard, the role of broadband
providers is analogous to that of telephone companies: they
act as neutral, indiscriminate platforms for transmission of
speech of any and all users.
Of course, broadband providers, like telephone
companies, can face capacity constraints from time to time.
Not every telephone call will be able to get through
instantaneously at every moment, just as service to websites
might be slowed at times because of significant network
demand. But those kinds of temporary capacity constraints do
not resemble the structural limitations confronting newspapers
and cable companies. The latter naturally occasion the
exercise of editorial discretion; the former do not.
If a broadband provider nonetheless were to choose to
exercise editorial discretion—for instance, by picking a
limited set of websites to carry and offering that service as a
curated internet experience—it might then qualify as a First
Amendment speaker. But the Order itself excludes such
providers from the rules. The Order defines broadband
internet access service as a “mass-market retail service”—i.e.,
a service that is “marketed and sold on a standardized
basis”—that “provides the capability to transmit data to and
receive data from all or substantially all Internet endpoints.”
2015 Open Internet Order, 30 FCC Rcd. at 5745–46 ¶ 336 &
n.879. That definition, by its terms, includes only those
broadband providers that hold themselves out as neutral,
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