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Several groups of petitioners now challenge the Order:
US Telecom Association, an association of service providers,
along with several other providers and associations; Full
Service Network, a service provider, joined by other such
providers; and Alamo Broadband Inc., a service provider,
joined by an edge provider, Daniel Berninger. TechFreedom,
a think tank devoted to technology issues, along with a
service provider and several individual investors and
entrepreneurs, has intervened on the side of petitioners US
Telecom and Alamo. Cogent, a service provider, joined by
several edge providers, users, and organizations, has
intervened on the side of the Commission.
In part II, we address petitioners’ arguments that the
Commission has no statutory authority to reclassify
broadband as a telecommunications service and that, even if it
possesses such authority, it acted arbitrarily and capriciously.
In part III, we address challenges to the Commission’s
regulation of interconnection arrangements under Title II. In
part IV, we consider arguments that the Commission lacks
statutory authority to classify mobile broadband service as a
“commercial mobile service” and that, in any event, its
decision to do so was arbitrary and capricious. In part V, we
assess the contention that the Commission impermissibly
forbore from certain provisions of Title II. In part VI, we
consider challenges to the open internet rules. And finally, in
part VII, we evaluate the claim that some of the open internet
rules run afoul of the First Amendment.
Before addressing these issues, we think it important to
emphasize two fundamental principles governing our
responsibility as a reviewing court. First, our “role in
reviewing agency regulations . . . is a limited one.” Ass’n of
American Railroads v. Interstate Commerce Commission, 978
F.2d 737, 740 (D.C. Cir. 1992). Our job is to ensure that an
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