38
exercise “judicial skepticism of the [Commission’s] power
grab.” TechFreedom Intervenor Br. 18.
TechFreedom ignores Brand X. As explained above, the
Supreme Court expressly recognized that Congress, by
leaving a statutory ambiguity, had delegated to the
Commission the power to regulate broadband service. By
contrast, in Brown & Williamson the Court held that Congress
had “precluded” the FDA from regulating cigarettes.
This brings us, then, to petitioners’ and intervenors’
Chevron step two challenges.
First, US Telecom argues that the Commission’s
classification is unreasonable because many broadband
providers offer information services, such as email, alongside
internet access.
According to US Telecom, because
broadband providers still offer such services, consumers must
perceive that those providers offer an information service.
For its part, the Commission agreed that broadband providers
offer email and other services, but simply concluded that
“broadband Internet access service is today sufficiently
independent of these information services that it is a separate
offering.” 2015 Open Internet Order, 30 FCC Rcd. at 5758
¶ 356. US Telecom nowhere challenges that conclusion, and
for good reason: the record contains extensive evidence that
consumers perceive a standalone offering of transmission,
separate from the offering of information services like email
and cloud storage. See supra at 25–27.
US Telecom next contends that the Commission’s
reclassification of broadband was unreasonable because DNS
and caching do not fall within the Communications Act’s
telecommunications management exception. As noted above,
that exception excludes from the definition of an information
service “any [service] for the management, control, or
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