107
of the action . . . at issue.” Lujan, 504 U.S. at 561. When a
person or company that is the direct object of an action
petitions for review, “there is ordinarily little question that the
action . . . has caused [it] injury, and that a judgment
preventing . . . the action will redress it.” Id. at 561–62.
Here, however, Alamo seeks pre-enforcement review of the
rules, which raises the question of whether it has
demonstrated that the rules inflict a sufficiently concrete and
actual injury. We conclude that Alamo has made the requisite
showing.
Pre-enforcement review, particularly in the First
Amendment context, does not require plaintiffs to allege that
they “will in fact” violate the regulation in order to
demonstrate an injury. Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334, 2345 (2014). Standing “to challenge laws
burdening expressive rights requires only a credible statement
by the plaintiff of intent to commit violative acts and a
conventional background expectation that the government
will enforce the law.” Act Now to Stop War & End Racism
Coalition v. District of Columbia, 589 F.3d 433, 435 (D.C.
Cir. 2009) (internal quotation marks omitted). Because “an
agency rule, unlike a statute, is typically reviewable without
waiting for enforcement,” that principle applies with
particular force here. Chamber of Commerce v. FEC, 69 F.3d
600, 604 (D.C. Cir. 1995).
Alamo explains that the “Open Internet conduct rules
eliminate Alamo’s discretion to manage the Internet traffic on
its network.” Portman Decl. ¶ 5. That statement indicates
that, were it not for the rules, Alamo would explore
alternative methods of managing internet traffic—namely
blocking, throttling, or paid prioritization. In the context of
this challenge, the company’s “affidavit can only be
understood to mean that” if the rules were removed, it would
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