17
applications that compete with their voice or video telephony
services.” Id. The anti-discrimination rule applied only to
fixed broadband. Id. According to the Commission, mobile
broadband warranted different treatment because, among
other things, “the mobile ecosystem is experiencing very
rapid innovation and change,” id. at 17,956 ¶ 94, and “most
consumers have more choices for mobile broadband than for
fixed,” id. at 17,957 ¶ 95. In support of its rules, the
Commission relied primarily on section 706 of the
Telecommunications Act, which requires that the
Commission “encourage the deployment on a reasonable and
timely basis of advanced telecommunications capability to all
Americans,” 47 U.S.C. § 1302(a). 25 FCC Rcd. at 17,968–72
¶¶ 117–23.
In Verizon, we upheld the Commission’s conclusion that
section 706 provides it authority to promulgate open internet
rules. According to the Commission, such rules encourage
broadband deployment because they “preserve and facilitate
the ‘virtuous circle’ of innovation that has driven the
explosive growth of the Internet.” Verizon, 740 F.3d at 628.
Under the Commission’s “virtuous circle” theory, “Internet
openness . . . spurs investment and development by edge
providers, which leads to increased end-user demand for
broadband access, which leads to increased investment in
broadband network infrastructure and technologies, which in
turns leads to further innovation and development by edge
providers.” Id. at 634. Reviewing the record, we concluded
that the Commission’s “finding that Internet openness
fosters . . . edge-provider innovation . . . was . . . reasonable
and grounded in substantial evidence” and that the
Commission had “more than adequately supported and
explained its conclusion that edge-provider innovation leads
to the expansion and improvement of broadband
infrastructure.” Id. at 644.
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