33
Seeking to escape Brand X, US Telecom argues that the
Court held only that the Commission could classify as a
telecommunications service the “last mile” of transmission,
which US Telecom defines as the span between the end user’s
computer and the broadband provider’s computer. Here,
however, the Commission classified “the entire broadband
service from the end user all the way to edge providers” as a
telecommunications service. US Telecom Pet’rs’ Br. 44.
According to US Telecom, “[t]he ambiguity addressed in
Brand X thus has no bearing here because the Order goes
beyond the scope of whatever ambiguity [the statute]
contains.”
Id. (second alteration in original) (internal
quotation marks omitted).
We have no need to resolve this dispute because, even if
the Brand X decision was only about the last mile, the Court
focused on the nature of the functions broadband providers
offered to end users, not the length of the transmission
pathway, in holding that the “offering” was ambiguous. As
discussed earlier, the Commission adopted that approach in
the Order in concluding that the term was ambiguous as to the
classification question presented here: whether the “offering”
of broadband internet access service can be considered a
telecommunications service. In doing so, the Commission
acted in accordance with the Court’s instruction in Brand X
that the proper classification of broadband turns “on the
factual particulars of how Internet technology works and how
it is provided, questions Chevron leaves to the Commission to
resolve in the first instance.” 545 U.S. at 991.
US Telecom makes several arguments in support of its
contrary position that broadband is unambiguously an
information service. None persuades us. First, US Telecom
contends that the statute’s text makes clear that broadband
service “qualifies under each of the eight, independent parts
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