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been subject to nondiscrimination and equal access
obligations akin to those imposed by the rules without raising
any First Amendment question. Those obligations affect a
common carrier’s neutral transmission of others’ speech, not
a carrier’s communication of its own message.
Because the constitutionality of each of the rules
ultimately rests on the same analysis, we consider the rules
together. The rules generally bar broadband providers from
denying or downgrading end-user access to content and from
favoring certain content by speeding access to it. In effect,
they require broadband providers to offer a standardized
service that transmits data on a nondiscriminatory basis. Such
a constraint falls squarely within the bounds of traditional
common carriage regulation.
The “basic characteristic” of common carriage is the
“requirement [to] hold[] oneself out to serve the public
indiscriminately.”
Verizon, 740 F.3d at 651 (internal
quotation marks omitted).
That requirement prevents
common carriers from “mak[ing] individualized decisions, in
particular cases, whether and on what terms to deal.” FCC v.
Midwest Video Corp., 440 U.S. 689, 701 (1979) (internal
quotation marks omitted). In the communications context,
common carriers “make[] a public offering to provide
communications facilities whereby all members of the public
who choose to employ such facilities may communicate or
transmit intelligence of their own design and choosing.” Id.
(alteration and internal quotation marks omitted). That is
precisely what the rules obligate broadband providers to do.
Equal access obligations of that kind have long been
imposed on telephone companies, railroads, and postal
services, without raising any First Amendment issue. See
Denver Area Educational Telecommunications Consortium,
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