39
operation of a telecommunications system or the management
of a telecommunications service.” 47 U.S.C. § 153(24). The
Commission found that “[w]hen offered as part of a
broadband Internet access service, caching [and] DNS [are]
simply used to facilitate the transmission of information so
that users can access other services.” 2015 Open Internet
Order, 30 FCC Rcd. at 5770 ¶ 372. Challenging this
interpretation, US Telecom argues that DNS and caching fall
outside the exception because neither “manage[s] a
telecommunications system or service,” US Telecom Pet’rs’
Br. 39, but are instead examples of the “many core
information-service functions associated with Internet
access,” id. at 37. US Telecom claims that the Commission’s
use of the telecommunications management exception was
also unreasonable because the Commission “contends that the
same functions—DNS and caching—are used for
telecommunications management when offered as part of
Internet access, but are an information service when thirdparty content providers similarly offer them.” Id. at 40. We
are unpersuaded.
First,
the
Commission
explained
that
the
Communications Act’s telecommunications management
exception encompasses those services that would have
qualified as “adjunct-to-basic” under the Computer II regime.
2015 Open Internet Order, 30 FCC Rcd. at 5766–67 ¶ 367
(citing Non-Accounting Safeguards Order, 11 FCC Rcd. at
21,958 ¶ 107). To qualify as an adjunct-to-basic service, a
service had to be “‘basic in purpose and use’ in the sense that
[it] facilitate[d] use of the network, and . . . [it] could ‘not
alter the fundamental character of the [telecommunications
service].’” Id. at 5767 ¶ 367 (last alteration in original)
(quoting In re North American Telecommunications Ass’n,
101 F.C.C. 2d 349, 359 ¶ 24, 360 ¶ 27 (1985)) (some internal
quotation marks omitted). The Commission concluded that
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