9
(b) Changed facts. The Commission identifies two
changes, neither of which seems very radical or logically
linked to the new regime. First, it argues that consumers now
use broadband “to access third party content, applications and
services.” Order ¶¶ 330, 346-47. But that is nothing new. In
the Order from well over a decade ago that Brand X affirmed,
the Commission said that consumers “may obtain many
functions from companies with whom the cable operator has
not even a contractual relationship” instead of from their cable
internet service provider. Declaratory Ruling and Notice of
Proposed Rulemaking, 17 F.C.C. Rcd. 4798 ¶¶ 25, 38 & n.153
(2002) (“Declaratory Ruling”).
Second, the Order points to the emphasis that providers
put on the “speed and reliability of transmission separately
from and over” other features. Order ¶¶ 330, 351. Again,
there is nothing new about these statements from broadband
providers, who have been advertising speed for decades. See
Dissenting Statement of Commissioner Ajit Pai to Order (“Pai
Dissent”) at 357-58; Dissenting Statement of Commissioner
Michael O’Rielly to Order at 391. As Justice Scalia put it in
an undisputed segment of his Brand X dissent, broadband
providers (like pizzerias) “advertise[] quick delivery” as an
“advantage[] over competitors.” 545 U.S. at 1007 n.1 (Scalia,
J., dissenting).
At no point does the Commission seriously try to quantify
these alleged changes in the role or speed of internet service
providers. Even if there were changes in degree in these
aspects of the internet, the Commission doesn’t explain why
an increase in consumer access to third-party content, or an
increase in competition to offer high-speed service, would
make application of Title II more appropriate as a policy
matter now than it was at the time of the Declaratory Ruling
at issue in Brand X.
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