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detrimental effect on broadband deployment, other record
evidence suggested the opposite. Id. at 649. The case was
thus one where “‘the available data do[] not settle a regulatory
issue and the agency must then exercise its judgment in
moving from the facts and probabilities on the record to a
policy conclusion.’” Id. (alteration in original) (quoting
Motor Vehicle Manufacturers Ass’n v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29, 52 (1983)). The
Commission, we concluded, had “offered ‘a rational
connection between the facts found and the choice made.’”
Id. (quoting State Farm, 463 U.S. at 52).
We nonetheless vacated the anti-blocking and antidiscrimination rules because they unlawfully subjected
broadband providers to per se common carrier treatment. Id.
at 655, 658–59. As we explained, the Communications Act
provides that “[a] telecommunications carrier shall be treated
as a common carrier . . . only to the extent that it is engaged in
providing telecommunications services.” Id. at 650 (quoting
47 U.S.C. § 153(51)). The Commission, however, had
classified broadband not as a telecommunications service, but
rather as an information service, exempt from common carrier
regulation.
Id.
Because the anti-blocking and antidiscrimination rules required broadband providers to offer
service indiscriminately—the common law test for a per se
common carrier obligation—they ran afoul of the
Communications Act. See id. at 651–52, 655, 658–59. We
upheld the transparency rule, however, because it imposed no
per se common carrier obligations on broadband providers.
Id. at 659.
D.
A few months after our decision in Verizon, the
Commission issued a notice of proposed rulemaking to “find
the best approach to protecting and promoting Internet
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