31
information services component. Id. at 991. Moreover, the
dissent expressly noted that the Commission could reach this
conclusion in part by determining that certain information
services fit within the telecommunications management
exception. “[The] exception,” the dissent explained, “would
seem to apply to [DNS and caching]. DNS, in particular, is
scarcely more than routing information . . . .” Id. at 1012–13
(Scalia, J., dissenting). As they could with consumer
perception, therefore, interested parties could “comment
meaningfully” on the Commission’s use of the
telecommunications management exception.
US Telecom next argues that the Commission violated
the Regulatory Flexibility Act by failing to conduct an
adequate Final Regulatory Flexibility Analysis regarding the
effects of reclassification on small businesses. See 5 U.S.C.
§ 604(a). We lack jurisdiction to entertain this argument.
Under the Communications Act, for a party to challenge an
order based “on questions of fact or law upon which the
Commission . . . has been afforded no opportunity to pass,” a
party must “petition for reconsideration.” 47 U.S.C. § 405(a).
Because the Commission included its Final Regulatory
Flexibility Analysis in the Order, US Telecom had to file a
petition for reconsideration if it wished to object to the
analysis. US Telecom failed to do so.
B.
This brings us to petitioners’ substantive challenges to
reclassification. Specifically, they argue that the Commission
lacks statutory authority to reclassify broadband as a
telecommunications service. They also argue that, even if it
has such authority, the Commission failed to adequately
explain why it reclassified broadband from an information
service to a telecommunications service. Finally, they
contend that the Commission had to determine that broadband
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