41
Intervenor TechFreedom makes one additional Chevron
step two argument. It contends that this case resembles
Utility Air Regulatory Group v. EPA, in which the Supreme
Court reviewed EPA regulations applying certain statutory
programs governing air pollution to greenhouse gases. 134 S.
Ct. 2427, 2437 (2014). EPA had “tailored” the programs to
greenhouse gases by using different numerical thresholds for
triggering application of the programs than those listed in the
statute because using “the statutory thresholds would [have]
radically expand[ed] those programs.” Id. at 2437–38.
Rejecting this approach, the Supreme Court held that because
the statute’s numerical thresholds were “unambiguous,” EPA
had no “authority to ‘tailor’ [them] to accommodate its
greenhouse-gas-inclusive interpretation of the permitting
triggers.” Id. at 2446. “[T]he need to rewrite clear provisions
of the statute,” the Court declared, “should have alerted EPA
that it had taken a wrong interpretive turn.” Id. According to
TechFreedom, the Commission’s need to extensively forbear
from Title II similarly reveals the “incoherence” of its
decision. TechFreedom Intervenor Br. 21.
This case is nothing like Utility Air. Far from rewriting
clear statutory language, the Commission followed an express
statutory mandate requiring it to “forbear from applying any
regulation or any provision” of the Communications Act if
certain criteria are met. 47 U.S.C. § 160(a). Nothing in the
Clean Air Act gave EPA any comparable authority.
Accordingly, the Commission’s extensive forbearance does
not suggest that the Order is unreasonable.
2.
We next consider US Telecom’s argument that the
Commission failed to adequately explain why, having long
classified broadband as an information service, it chose to
reclassify it as a telecommunications service. Under the
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