111 little control over the content which users access on the Internet” and “allow Internet end users to access all or substantially all content on the Internet, without alteration, blocking, or editorial intervention,” thus “display[ing] no such intent to convey a message in their provision of broadband Internet access services.” 2015 Open Internet Order, 30 FCC Rcd. at 5869 ¶ 549. In turn, the Commission found, end users “expect that they can obtain access to all content available on the Internet, without the editorial intervention of their broadband provider.” Id. Because “the accessed speech is not edited or controlled by the broadband provider but is directed by the end user,” id. at 5869–70 ¶ 549, the Commission concluded that broadband providers act as “mere conduits for the messages of others, not as agents exercising editorial discretion subject to First Amendment protections,” id. at 5870 ¶ 549. Petitioners provide us with no reason to question those findings. Because the rules impose on broadband providers the kind of nondiscrimination and equal access obligations that courts have never considered to raise a First Amendment concern—i.e., the rules require broadband providers to allow “all members of the public who choose to employ such facilities [to] communicate or transmit intelligence of their own design and choosing,” Midwest Video, 440 U.S. at 701 (internal quotation marks omitted)—they are permissible. Of course, insofar as a broadband provider might offer its own content—such as a news or weather site—separate from its internet access service, the provider would receive the same protection under the First Amendment as other producers of internet content. But the challenged rules apply only to the provision of internet access as common carriage, as to which equal access and nondiscrimination mandates present no First Amendment problem.

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