32
providers were common carriers under this court’s NARUC
test in order to reclassify.
1.
In addressing petitioners’ first argument, we follow the
Supreme Court’s decision in Brand X and apply Chevron’s
two-step analysis. Brand X, 545 U.S. at 981 (“[W]e apply the
Chevron framework to the Commission’s interpretation of the
Communications Act.”). At Chevron step one, we ask
“whether Congress has directly spoken to the precise question
at issue.” Chevron, 467 U.S. at 842. Where “the intent of
Congress is clear, that is the end of the matter; for [we], as
well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842–43. But if “the
statute is silent or ambiguous with respect to the specific
issue,” we proceed to Chevron step two, where “the question
for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 843.
As part of its challenge to the Commission’s
reclassification, US Telecom argues that broadband is
unambiguously an information service, which would bar the
Commission from classifying it as a telecommunications
service. The Commission maintains, however, that Brand X
established that the Communications Act is ambiguous with
respect to the proper classification of broadband. As the
Commission points out, the Court explained that whether a
carrier provides a “telecommunications service” depends on
whether it makes an “offering” of telecommunications.
Brand X, 545 U.S. at 989; see also 47 U.S.C. § 153(53) (“The
term ‘telecommunications service’ means the offering of
telecommunications for a fee directly to the public . . . .”
(emphasis added)). The term “offering,” the Court held, is
ambiguous. Brand X, 545 U.S. at 989.
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