114 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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