please the court the imposition of common carriage on mobile broadband is unlawful for a separate and additional reason which is that among other requirements the statute says that before a mobile service may be subject to common carriage it must  be public switch network and mobile broadband instant congress when it wrote that provision had a particular network in mind and everywhere other than the order under review that that phrase has been used it's been a term that's referred to the public switch telephone network express delegation to define that term that's right and that's why for example it was perfectly for permissible for the commission to say that the network includes pagers that also terminate in the same ten digit telephone numbers but the commission's discretion can't extend to adopting a reg regulation that file it's a clear aspect of the statute and one aspect of the statute that's clear and unambiguous is that the public switch network can only be a single network  can i just step back one level of generality before i know that linchpin of your argument is public which network but it seems to me that one thing that is going on here is that we're taking a statute that let's just suppose was designed primarily to deal with phone and we're applying it to the category of mobile services to include mobile broadband so the gateway is mobile services that's what this provisions about we're applying it to mobile broadband and then if we had to ask the question well there's two categories there's commercial  commercial mobile service and there's private mobile service if we don't get to public switch network then what's the reason to think that congress would have thought that mobile broadband would be commercial mobile service rather than private mobile service i'm not sure i understand the question i mean why would congress have thought that mobile broadband was private mobile service yes a supposed to yeah i'm sorry i think i said it exactly reversed sorry they term private in the statute doesn't mean noncommercial so for example private land mobile services which was in the statute right before section three thirty two was and acted to find certain services as private land mobile services quote regardless of whether they are provided indiscriminately to eligible users on a commercial basis the word private in this context i think means private carriage and is distinct from services that are interconnected with the public switched network so commercial services can be private large services can be private the internet was a private mobile service for years and years and the commission reaffirmed that repeatedly until the or under review so i understand your honor's question about stepping back but i really think once you step back you want to back forward again into the question is this interconnected with the public switch network and on that point the public switch network has to be a single network the commission said in three ninety six it acknowledge that there is a single network requirement but what it did here in its rule was combine two different networks the network that ends intending to telephone numbers and the network that and is now a single switch network that is what its rule says yes it's rule says the network that uses either tend to telephone numbers or ip addresses but that's like saying the country whose capital is either london or paris you have to find two countries even though you said the in the commission has to find two networks here and we know this from two things first the cornerstone of the commission's theory in the mobile section of its order is ubiquitous access it says that the internet is a commercial service because it provides ubiquitous access but while the telephone network provides ubiquitous access among people who have telephone numbers and the internet provides ubiquitous access among people who have i addresses there's no ubiquitous access if you take the two networks collectively if you have just a mobile phone number you can't reach any of the hundreds of millions of endpoints that have ip addresses and so the whole notion of what it means to be inter connected to a network not connected but inter connected to a network it means there's mutuality it means everybody who gets on it from any point can reach everybody who is on it from some other point so when you think what do you think congress had in mind when it commission three to define interconnect it's actually a very specific purpose here that was indicated in the legislative history and then the commission articulated in the second report in order wrong on that legislative his history that it issued right after section three thirty two is an act when what it wasn't was a decision by congress to tell the commission as new networks come into being that we haven't thought of yet we want you not us to make the momentous decision about whether they should be subject to common carriage that was not what it was about what it was about is that there had been emerging services that were competing directly with cellular low voice but weren't being regulated as stringently as your voice and congress said that's an that's unfair and so it is not to this provision to ensure that all direct competitors of cellular voice would be regulated the same way and so the phrase interconnected with the public switch network was a way of getting at the question of who is competing with whom because if you're interconnected to the same network and you're providing essential in the same connectivity to the same people congress said you're providing the same service and that same point was behind the commission's rule which is disregarded here but it has never changed defining what would be functional equivalence functional equivalence was in any trial market test to determine whether a service was a functional equivalent of another the commissions rule says you look at whether a price increase in one service would shift demand to the other it too was looking at the question are these services competing with sell your low voice that was an important purpose but it was not a purpose to save some new network comes into being you can sell it on to the existing network and call it one network and impose common carriage on it the reason congress said the public switch network is that it had a particular network in mind it was delegating to the commission the power to find the balance of that network for purposes of making sure that all direct competitors pagers others were swept in to the same company to the same regulatory scheme but it wasn't saying when a whole new network comes into being that we haven't anticipated and everybody agrees the commission we the commission when it wrote this statute wasn't thinking about the internet and didn't anticipate it wasn't saying when a new network comes in you can just add that into the public switch network and you know even know thirty five in the commission's own brief quotes approvingly a commenter who says the telephone network is one public switch network the internet is another congress didn't say a public switch network or any public switch network it said the public switch network because it had one particular network in mind and the only other point i would want to make about this wireless issue is that this was another instance in which the notice violation was particularly stark there is one sentence in the n p r m yeah i wondered about that suppose we actually agree with that is or is or i'm wondering about whether it's both i didn't see anything different here are the here are some of the key arguments that weren't there first of all you would agree by the way if the arguments you make are there and there's not a notice from yes that's how i understand them they may have so you may have not only did the notice requirements but it would then be harmless from listeners to tell us what of the yes first of all nowhere nowhere in our comments or ex parties or anything we filed did we never were able to argue that you cannot combine two networks into one because the existing rules prohibited that and the commission changed that rule and that was the one interconnected service and the change the commission here made was much quieter with much less discussion than the other change but that rule had said previously that an interconnected service it is one which lets all users on a network send or receive calls to or from quote other users and the commission amended that by deleting the word so it just says so that you can reach other users and it did that for the reasons i was just indicating which is it had combine two networks into one it wanted to call that a single network and it wanted to say that it didn't matter that there was no mutuality of interconnectivity we never addressed the proposed rule change and this was a rule change this wasn't just some rationale or thought this was an amendment of an existing rule and the one sentence that the commission will rise on in its n p r m was just a sentence that said for mobile broadband internet access service doesn't fit within the definition of commercial mobile service that was on there was a footnote that cited the rule defining public switch network now anyone i think reading that would think  they want us comment on whether or not the existing rule applies to mobile broadband there was no suggestion they were going to amend that rule no suggestion how they were going to amend that rule no suggesting they were going to amend the rule on interconnected service requiring all users no suggestion they were going to combine two networks into one no suggestion they were going to disregard the functional equivalent test that was in their rules and instead substitute for this case only and ubiquity test and particularly whatever the force of notice obligations are in any other context when an agency is talking about changing its rules and changing its standards and applying a different standard or different test than the one that is in the c f r that is where the notice obligations should be most strongly enforced because there's no way in commenting on things like this any of us are going to be able to anticipate every different possible ways if everything's up for grabs at the commission might change its rules and the proof really is in the pudding here because just tell you asked what we didn't address we were highly motivated after the president came out with his statement urging the broadest possible regulation to put everything in the record that we could that would respond to what the commission looked like it was now going to do after this whole n p r m changed course and we did put submissions to c t a right paper was one fries and eighty everybody put in submissions that were our attempt to address everything that was on the horizon but we missed actually the critical rationales in the commission's decision we didn't know they were going to change their functional equivalent test we didn't know they were in a substitute and ubiquity test for it we didn't know they were going to combine two networks into one by amending their rule on interconnected service and so the notice violation here wasn't harmless we actually didn't present the kinds of arguments that the last you know twelve minutes or so that i've been at the podium we've all been discussing i think question about the practical implications of this piece of the case so if we're at this point in a case then we've assumed that the  reclassification was ok but for mobile and then there's a separate argument as to why there's a problem with respect to mobile so just to break it down to brass tacks if i have a tablet and i have two options for accessing the web  broadband connection goes off and the mobile connection it's in kicks in maybe vice versa if i get closer to the router so my question is if you prevail on this argument would it mean that where i am in my house determines whether i'm subject to blocking you know you i think that would be a question for very well suited for the commissions you know vaunted technical expertise you know in the one thing that i can say is that there are two different tests both of which has to be be met before a mobile broadband service can be classified this way one is the definitional test and the other is the section three thirty two interconnected with the public switch network and in fact the commission has in the past applied different rules and different standards to mobile and to fix so for example the two thousand and ten internet order that was reviewed and arisan the rules were different between fixed and mobile and i suppose your other scenario could come up there as well and unlike some of the things we've been discussing that really may well fall within the kinds of interest to seize of the act that you would least want to see what kind of record the commission brought would have said about it and how to deal with it but there's no question that there can be an asymmetry here there was an asymmetry years ago and the statute contemplates it by b having these different requirements yes one other question which is this the way this argument comes up is that there's a prohibition against common carrier treatment if we're talking about a private mobile service based on the argument we had earlier today there's a mandate for common carriage treatment if you're a telecommunications service so the statute is at loggerheads potentially and what the commission says is in order to guess my question is if the statute potentially puts one at this loggerheads does the specific grant of authority to the f c c in three thirty to give it some forceful authority to deal with these kinds of issues in the statute or otherwise would be well the the commission has acknowledged that there is a statutory contradiction here but it didn't actually resolve that statutory contradiction and didn't explain why it what it said is one of the advantages of its separate finding about the service being interconnect with the public switch network is that it would remove the need to resolve the statutory what it called the statutory contradiction if it was you know information telecommunications service under one but a private mobile service on another the private mobile service provision is very specific a private mobile service shall not be subject to common carriage regulation that is the more specific of government such as shall but the private mobile service provision is the more specific of the two because it's not a general definition it specifically rates relates to mobile broadband service and in addition i think to the extent there's any contradiction in the statute there are two things that ought to influence how it's resolved one is that the default in the statute clearly is no common carr all the provisions that impose common carriage do so very narrowly and in very circumscribed way a telecommunications carrier shall be subject to common carriage only to the extent that it provides telecommunications service and a private mobile service is everything that's not a commercial mobile service not be subject to common carriage and when you later onto that the provision we were talking about in the last segment section two thirty in which congress said its national policy that the internet and internet access should be not be fettered by federal regulation i think any question about how tensions in the statute between these two provisions gets resolved has to be resolved in the direction of no common carriage not creating common carriage and if i could just say a word about the internet conduct standard because the commission said several times in the order that there was a consensus that it agreed with that there was a need for certainty and for a clear enforceable bright line rules that's paragraph thirteen and a paragraph one thirty eight it says by contrast vague an innovation so they have their three bright line rules which are clear to their extent but then they have layered on top of this the most vague and impossible to predict standard which removes any level of certainty that is provided by the three bright line rules because when the chairman was asked what does the internet conduct standard prohibit he says i don't know that's there because we don't know today what we might want to support it with a record you don't create a rule that maximizes your enforcement discretion because you want to make sure that you will be able to retroactively declare anything you decide you don't like after the fact and waffle and what really is striking about this is they even described in the order practices that they say they're out there and we don't know whether they violate our new rule or not the example they gave was the team mobile service that doesn't count music streaming against your data cap so you get unlimited music streaming without having to pay for that consumers not commission says we don't know yet whether this violates our in context and if they don't know we and we don't know so every business practice which you can engage in is subject to this question what is the commission going to think after the fact and when you have a rule making in which specifically as it has historically in this area the commission says over and over again certainty is important predictability is important if we don't have it we're going to  no here's what it said it said does the for mobile broadband internet access service does it fit within the definition of commercial mobile service then it had a footnote the footnote cited one rule they changed multiple rules but it cited one rule and that was the rule that that defined public switch network they say because they had the citation to the rule in a footnote we should have anticipated that they might amend it they don't actually tell us that we should have anticipated how they might amend it which would have been useful but they say at least we should have anticipated that they would amendment not to go back to church titles question relating to functional equivalence same issue this was not addressed in they never told us they were going to amend the interconnected service to delete the requirement that a network enable you to reach other users and i wasn't mentioned but if your point about that is even assuming that's correct they didn't you didn't solve that problem by commenting right there we didn't comment we did we didn't address the us that later we didn't address it ever we did the two think two of the things that we didn't address ever were there amendment to the rule on interconnected service and they're ignoring their own rule on functional equivalence because there was no notice so even though we put a lot of paper in we didn't address those two things because we didn't know about them and you they're what i've been spending most of the second said in addition by the way everybody let's look at the governing statute right which is three thirty two and three thirty two defines or a private mobile service to exclude anything that's a commercial mobile service or the functional equivalent so anybody had to do was to look at the statute which the commission had quite kindly or it specifically identified in the notice itself  order to try to figure out the functional comments would have been a an issue in the case i think that the notice objection here really is is a requirement is trying to impose a requirement on the commission to write notice for a second because they had every opportunity time and time again their balloon is comments on precisely this issue from the mobile petitioners about why the commission cannot reclassify mobile broadband because of the terms of three thirty two and in the opening comments e t i raised immediately the question of this cannot be a functional equivalent and they explained their position why that was the case in their reply comments they specifically discussed this question of public switch network and they said they made the same arguments they make here that it has to be the public switch telephone network even though the word telephone is not in the statute at all so the and time and time again there was a references been made to a c t a white paper which was a a and lengthy submission in during the repeat that all description the commission of having a single sentence in that section i got rid of the court to look at paragraph one forty nine and one fifty is really it seems to me a mis misleading description there were the notice was brief the notice was complete the notice included that cool or the general issue that which is all the a p a requires that the commission wanted to the parties to discuss should we reclassify mobile broadband in light of the changes in the marketplace i when further and it said does it fit within the definition of commercial mobile service and and the petitioner say well you just asked whether it fits within the definition and we answered no even though the statute says time and time again that these definitions are by regulation as the commission issues specify as defined by regulation by the defined in regulation by the commission so the idea that somehow they were supposed to end their conversation or were blindsided by the idea that well you just asked us whether it fit and we told you it doesn't so that's the end of the story is entirely inconsistent with any reasonable reading of three thirty two which is the statute we pointed them to and which governs the issues in this case it really seems like it is putting the burden on the agency to walk the parties by the nose through these issues so i'm asking a question about the merits  just connected but interconnected with the public switching or with the commission's updated rule just to be clear includes all devices that use north american numbering plan number i can still with american numbers but i can't reach anything that doesn't have that and just has an ip address that's correct your honor but in my interconnected to the public switch network well switch my call to anybody on the public i think it is clear you are still connected i mean i know i'm connected and i don't know that there's a difference between the use of the term interconnected and connected that there is a distinction that congress intended to be prior prior to the regulation i could in fact be switched to any north american who write it under the back speech i could reach anybody on the north on the public switch network right but it was always like this this goes to this question of the commission did remove  earth but i'm talking about the statute i think it's a reasonable interpretation of interconnected to mean that you're interconnected to part of the network rather than every point on the network i think that was the commission's position even in the well under the old rule that for example we cited the order sites this example of nine hundred number blocking that can take cell phone providers or telephone providers out of the public switch network at that time the m p network just because they didn't provide access to say nine hundred number but there was a honor i think the issue here goes in their argument goes to whether this is part of the network and at least as to that point it's quite clear you can have a network that is composed of sub networks so in the under the old rules you could have said there's a cell phone network there's a landline network that's a pager network well of those were an undisputedly part of the public switch network under the old rules so that that goes to this question of the internet now part of the public switch network that the internet is interconnected which i don't think the parties have raised i think would be an equally reasonable position for the commission to take and we're at least a reasonable reading of the statute that to make no distinction between interconnected and connected if your honor is concerned about the the aspect that doesn't reach all the points on the network the commission dealt with that by saying it was never the case that you couldn't have a network that that has to reach technically every point on the network and it was it was the general what seems to me reasonable permissible for the commission to treat the network and after all has tremendous broad discretion the congress vested in by the terms of the statute because of the regulatory power or the power to define the terms by that kind of convergence tells you that you can reach all or virtually all members of the public accusing this using ip addresses using this but it just gives to understand that argument or where it fits at least that assumes that public switch network retains the same meaning that it had before but the point is that there's a capability of reaching everybody on the old understanding of publics that network because of the convergence of technology i'm the convergence point i think goes to why the commission's interpretation of the network single that is conceiving this is a single network is reasonable i do want to get to the commission's alternative ground that even if this is not a commercial mobile service that it was the functional equivalent of commercial mobile service and that doesn't require on anything conceptualizing these as a single network it just it focuses on the commission's determination that at the very least it's the functional equivalent what the old phone system was you now can use the internet to reach and this is the statutory term with regard to the definition of commercial mobile service and and that is if the congress was focusing on what you could reach the public address communication and so that's right about that but that only applies i mean you're saying that it's a functional equivalent and then relying on the statutory definition of commercial mobile service by analogy that's what i think if you wanted to look at what a functional equivalent to  commercial mobile service is to mean it looks to whether it can perform that same function of communicating to at least a substantial portion of the public and that's clearly in present day with modern modern marketplace what mobile broadband internet access service does except that what the statute it has to be the functional equivalent of a commercial mobile server service and the commercial and commercial mobile service is naturally defined term and commercial mobile service then takes you to another definition that talks about the public switch network yes but i think on the public switch network issue cannot limit it to the public's with that statute to the public switch telephone network where first of all when the commission first implemented its rules it rejected an argument that it should state the rule in terms of a it isn't there and if you tell it says statutory ten intense the word telephone the word for that but i guess what i'm what i'm not understanding is i'm trying to understand what extra room functional equivalence gets you and if you went on the notion that the statute because it doesn't uses the word telephone one way or the other i'm just explaining where i am and this for purposes of this maybe i don't know if there's one extra are you getting out of functional equivalence because it seems to me that by the time you've gotten a functional equivalence we've already we would have by assumption already concluded i think the  functional equivalent is if this court were concerned about the interconnection point to all points or the network issue so putting aside whether it has to be the telephone network but that it's not necessarily a single network or that it's not interconnected functional quints doesn't require any involve either of those concerns well it's just we're looking to the function of the network and seeing whether performs the same functions as a commercial going back to the public switch network what's the best evidence you have congress congress did have in mind the future expansion of the public such network but not this well i understand his argument to mean that it's the public switch telephone network and my best argument is the word telephone isn't in the  the same regulatory scheme but i actually think the purpose was something slightly different and important to support our argument there was a dispute that some carriers had taken advantage of what had been defined as private mobile service to actually conduct public commercial mobile service this was predecessor i think of that style and congress was was in acting the statute specifically concerned with making sure that commercial mobile services were symmetrical with each other that they competed if you were providing and this is where i think that's consistent with what mr kushner said but i think this is where the word private does some work the definition is private mobile service however you look at mobile broadband internet access service or it's functional but now mobile broadband is not nascent which was that it was not in its infancy and in earlier in earlier years you could have thought of it is a developing service that itself wasn't as ubiquitous as it is now the commission ubiquity comes into this congressional concern which is reflected in that statutory terms about service to the public or substantially all portions of the public and i think that's where that concern and with the and to go back to the word private again the fact is the the functional equivalent looks to whether or not this service this can provide functionally equivalent is functionally equipment what commercial mobile service in its narrow form or the traditional form was which was you could communicate with virtually everybody well and with mobile broadband internet access you can communicate just like you used to be able to and you still are with the old phone service with everybody in the country and that's the function that's the equivalence and that's the function that and so that's why ubiquity does matter and why ubiquity was an important consideration when congress passed and we just go back to to the question i asked earlier and that is did your refinement of the congressional purpose in any way undermine mr chryslers contention as to the purpose well i guess if mr kaiser is simply saying well they couldn't had have had this in mind the statu know he was saying they had a specific purpose in mind and that is to have competitive enterprises governed by the same set of rules i guess makes a lot of sense i would point the court back to the language of the statute because it is not a statute that elevates its purpose over its terms no statute does but this statute in particular repeats time and time again these terms are to be as specified by regulation by the commission if congress had eighty eight term of art in mind is a very odd way of implementing that purpose by giving the commission at every stage with regard to every relevant definition here regulatory authority to change the definition if the court has no further questions you thank you within the statutory definition of commercial mobile service as were the general conduct standards they say that it would mire them in litigation and uncertainty most of them said the opposite of the law they asked for a reasonable was proper in commercial reasonable as you cannot suddenly become improper in not unreasonably interfering in fact the latter formulation is less vague and more specific or not available to a substantial portion of the public you never says more all of this that's that's the that's the definition of commercial mobile service right or not that doesn't tell you what public it does because public streets network is a building block into defining with a commercial mobile services so it seems to me that the finishing of public switch network doesn't tell you what in or connected with the public not necessarily but i with thank you sort of all john williams in response to your question about source authority for the proposition about congress purpose in three thirty two i prefer the court to paragraph three eighty nine of the commission's order here where the commission said congress adopted the commercial mobile service provisions in the act with the goal of creating regulatory symmetry among similar mobile services that's exactly what i've said the commission said it here as well with respect to  function to ubiquitous things are not functionally equivalent just because they're both ubiquitous the postal network is ubiquitous but the internet and the postal network are not functional equivalent and i've checked the citations that interveners counsel just mentioned we never said please don't replace your existing functional equivalence test with ubiquity test we would have had to have been psychics to be able to know to address that there was no indication that that was on the table mr lewis said that they pointed us to the statute we didn't need to be pointed to the statue we know the statute we know where it is we needed to be pointed to what the commission was thinking about doing and we had no notice that the commission was thinking about amending multiple rules and ignoring another standard and the opportunity to comment on it and the law here is not that notice is sufficient if you get pointed to the statute and are asked to imagine what possible changes might be in store this court said in h b o versus f c c that the agency's obligation is to set out its thinking because it's the one opportunity the public has to learn what the agency thinks it knows as the repository of expert opinion and so the agency has to give some have to has to give notice in what the court called a concrete and focused form so as to make meaningful criticism possible and that's the standard that we're saying should be applied here finally with respect to the merits of the argument mr lewis said that networks can have sub networks and of course that's true the internet is a network of networks the telephone network is a combination of the local exchange network and the inner exchange network in foreign networks but what's characteristic of those is you can they're combinable because you can enter on any point and reach somebody on any point and that's not true of the frankenstein monster network that the f c c has sown together here between the internet and the telephone network mr lewis said that it's always been the case that for example you could still be interconnected even if you block nine hundred calls and that's right it doesn't destroy being interconnected the network if the parent subscribes to a service that keeps his or her child from accessing one hundred calls that kind of de minimus exception has always been understood and that's why the statute says it's enough to be connected to substantially all of the public that's different from the situation here where if you just have a mobile telephone number you can't reach hundreds of millions of endpoints on the commission's suppose that single network that combines the internet and the telephone network and finally with respect are contradictions impeaching each other i would just like to mention and c t a who i represent with respect to the internet conduct standard and everything in the first segment did not join the section of the brief on wireless that was a section of the brief that was only on behalf of  may please the court but you made for petitioners alamo broadband and daniel burner the court's permission i'd like to reserve two minutes for about the first amendment protects every other medium of mass communication from newspapers to keep all television companies that provide access to the same content on the internet engage in and transmit speech they are entitled to the protections of the speech and press clauses of the first amendment like to address three points that first why broadband providers are speakers a member of the press second or these rules are subject to strict scrutiny and third why the rules fail even intermediate scrutiny during the first point the first amendment has always limited the government's ability to regulate the dissemination of content broadband are speakers and members of the press i think the court recognized as much in of horizon decision where the court said there's no material distinction between a broadband provider and a cable operator like evil operators broadband providers exercise discretion over the content  networks in fact the rules presume that broadband providers might exercise discretion to discriminate or prioritize some speech over other speech as just you know you're over the court of arisan these rules transfer control over the content that transmits broadband networks from the network owners to the edge providers congress people see when people buy internet service they're just they're not buying it's not like cable television they're not buying different kinds content they're buying access to the entire internet that's correct your honor and example if he's watching content on his i pad at home in the government's view the first amendment protects his cable operator when he's watching h b o on his television but that's because the cable operators assembling different packages of content and deciding not to serve just srinivasan is buying different parts of it but that's not true with respect provide broadband providers but the rules for clones that ability so to hear the rules prohibit broadband providers from exercising the editorial discretion that that i think to be in this portion of the argument i guess i get that you you join the challenge for reclassification but to be in this portion of the argument you would have lost on reclassification such that broadband providers are validly regulated as common carriers correct and if you're a common carrier it seems like with all common care is the expectation is that you're a pipeline to everything you hold yourself indiscriminately open to everything and once you do that if you want to be a provider who segregates content i suppose you could you could say i want to be an i s p who is focused on name a topic but then once you do that you no longer subject to the regime anymore because you're not a section about a broadband provider that wants to offer filter filtered internet service they never said that in the order in fact they said quite the opposite he said if you want to offer a family friendly internet service that would be reviewed for reasonable network management and which means it would be subject to the rules could the definition of broadband internet access service also encompasses any service meant to evade the rules so the commission could in its discretion decide that that type of service actually is a broadband internet access service and can sweep it and your point about common carriage the label doesn't the congress tomorrow could declare broadband broadcasters and cable companies as common carriers it wouldn't change the first amendment allison turner and other cases so to hear what i don't understand why wouldn't you have to explain th the court is never addressed address the first amendment rights of common carriers what is said you're correct is that broadcasters cable operators are not like traditional common carriers which are transmitting voice communications to private communications and a traditional common carrier exercise has no control over the content t  its network cable companies do and what the court said in turner's that he will companies are speakers and members of the press because they exercise editorial discretion over the content and then they transmit broadband providers have the capability to do the same thing have the capability  and my understanding is that historically the occasional has done so although subject to heavy frowning by the commission is that correct i think particularly metro p c s that's correct your honor what what the commission has done to this industry for ten years has had the rule the industry under rules proposed rules or thread of rules for ten years or so because you're not seeing more editorial discretion doesn't mean broadband providers aren't speakers and members of the press they could be but the commission is taking away that discretion that they inherently have because they're transmitting mass communications communications and in for the commission says i think at least it's brief and perhaps in the order that if and i speak comes along and think believe they said that and i'm sure pretty sure they said that in the brief but in the order i think it's i believe it's paragraph five seventy five they say this family friendly internet service would be part of the rules and would be reviewed for reasonable network management and what this order does is it gives the commission all the discretion in the world to regulate the dissemination of content it's a lot like the law in city of lakewood which involved the placement of news racks the courts its records said this law gives too much discretion to the government to decide the speech should be disseminated so to hear broadband providers are the does are the means to disseminate content because this question sure suppose we're dealing with a broadband provider that doesn't want to discriminate on the i'd i don't know th the parameters of family friendly one but let's just suppose you want to be the classic broadband provider who's the target of the rule which is indiscriminate access to the web for that person or you making for that entity making the same percent of an argument and saying that they're the same thing as a cable yes because that would that should be a cause of that because for them i just to find out why they're why why i just defined why they're not like a cable operator anymore because they're not making content selections that should be a matter of choice rather than regulatory compulsion so  york times in their website if they accept all comments on their website or all classified ads they don't forgo or surrender the right to discriminate or choose not to accept certain ads so too with a broadband provider  federal law protects broadband providers from any liability for anything they transmit right that's correct isn't that isn't that isn't that protection dependent on the fact that internet providers don't exercise any control over their content no your honor congressman that you wouldn't wouldn't if in fact internet providers do exercise control over content doesn't have the whole rationale for protecting them from liability no your hon congress had to grant that immunity because broadband providers do exercise that type of editor's editorial discretion over content on the internet the communications decency act actually encourages broadband providers to restrict access to content that's lewd harassing violence or otherwise objectionable so congress at the same time it's granting immunity for things that you train a broadband provider transmits over the network also says yes there is a value to this editorial function that a broadband provider performs just like in the  context i don't know how the court can distinguish broadband providers from cable operators when in the prize in case the court said there's no material distinction it said midwest video two is indistinguishable and the court rejected each of the reasons that the the f was providing to distinguish that case from the arising case and one of the particular reasons that the court rejected was the commission's argument that brought keeble operators exercise editorial discretion or control over content and just you know running from a court said that's not a basis to distinguish broadband providers because they do exercise control what were hours previously they could have discriminate against the content of certain ad providers these rules prevent them from doing so now i'd like to turn briefly to application of scrutiny we believe that strict scrutiny should apply but in the event the court applies intermediate scrutiny leaders two reasons why the rules fail intermediate scrutiny in the first is that the government made no attempt to tailor the rules to minimize the burden on speech because he didn't view broadband providers as speakers at all as the court wrote in verizon this is a compelled carriage obligation that applies in all circumstances and with respect to all edge providers the government's first in first amendment and still effective at preserving the open internet to paris one fifty four five sixty three and five seventy five there now of course from the  and please the court will have been internet access providers are engaged in transportation not expression and that's clear from the definition the commission's definition of what broadband internet access service is it is a service that provides a capability to transmit or receive substantially all internet and points what is the scope of the exception that either was in the brief or the order i forget for broadband service providers who explicitly say as metro p c s did we're going to provide a limited set of services so i think that was in the section the order describing what the commission contours of reasonable network management might be but i think the point here is no i think i thought i thought  some where the commission spoke of in terms of where the common carriage was created spoke about broadband access providers to explicitly wanted to be s filtered group of things that would drop them out of the definition of broadband internet access service them and have that option under the order absolutely ironic if there is a discussion in the order of what non broadband internet access services would be and the definition of a broadband internet access service is to get at those services which we have which the petitioners here in gaijin is a mass market retail service to provide people and they sign up for it to get to all of the internet there are some other services that filter the internet if they filter the internet and don't provide access to all or substantially all end points then they will be big drop out of the definition of broad been entered acts of service the rules don't apply to them so what we're talking about  rules that are limited to services that provide access to everywhere they're not services that cure rate the internet and they're not services and these parties are not engaged in the business of providing people a limited selection of the internet on the basis of their express a view the first amendment of course applies to expression but transportation scran sporting being in the business of transporting people to all or substantially all in points of the internet is not expression and the fact the commission's rules which restrict the ability to block and things are going at their transportation these broadband providers transportation function so the threshold issue which the commission said they are conduits as and  other parties expressive conduct web web content and they are not themselves in so far as they are engaged in this business broadband internet access service of being expressive entities are gauging but yeah i mean there are think i think it doesn't seem to be that classifying it as a conduit gets you where you want to go well i think the notion of conduit is that they're not is another way of saying is that this business is not the they are not in the business transport that's not the business they're in that's not what they're marketing but even if and if i could just turn to the sec the commission second point because of course even if you the court thinks there's some expressive conduct involved in this definitions service and we don't think they're in it which clearly satisfy intermediate scruton these are not content based rules they are triggered by the rules are triggered by the companies in gauging in the provision of broadband internet access service and so it has nothing to do with the particular content they want to distribute that they don't want to distribute and they're perfectly free by the way to ditch distribute to have their own independent websites or distribute their own speech in any other fashion it's just when they're purporting to engage in the transportation of data to and from all in points of the internet and they're not engaged in speech but to go to the intermediate scrutiny point at a minimum there is at least three compelling substantial we need to show interest there is the interest in in fair competition in this area there is an interest in the widest possible diversity of sources these are interests that that charter court recognized and there  also the interest in keeping the internet open and the deployment of broadband which congress recognized in seventy six in this court and raisen upheld and the tailoring comes i think with the definition of the service to which the rule applies it is this narrow class of service that is undertakes to take parties to everywhere on the internet and to act and in doing so the act as a conduit and judgement of us and you are absolutely right if you get to this point in the argument it's because the commission has properly classified broadband internet access service as a title two telecommunications service a common carrier service common carriage has never been thought to be a service which because metro p c s thought it wasn't worth the battle but it would seem to me that a commission concerned about not violating the first amendment would have been very hesitant to to l plus the access to youtube oh i'm sorry that the there are obviously important competitive concerns about the way the service can be provided this is the underlying aspect of the rule and that but what the underlying underpinnings of a first amendment argument or that those decisions or made are not made because of its actual expressive decision on the part of the distributor and the mere commercial arrangements to say well look we'll well very well promote a particular type of of of content because for example we're busy paid more doesn't itself trigger if i don't understand metro p c s this as saying well look we lap in a like particular content and they were distributing because of the nature of that qantas the the first amendment depend upon the the motive of the selective conduit first amendment as applied to conduit i mean continental contest wants to make money that's the purpose of its cable service right i think it depends on whether the broadband internet access service provider is in gauging its own expression and if it just takes the money there's no expression involved in that it would have to say show that it is taking the money as part of its business because it is picking winners and losers and not for competitive reasons but somehow because the underlying expression and that's where the first amendment issue to the petitioner is in turner broadcasting makes such a klein makes such a what  a claim that they were it was their personal ideas of what was good what was not interest and so forth it was our personal ideas in the sense that they cable companies are engaged in editorial discretion they were both with examples that as you say go out there it isn't it's not look maybe the way to say this is if some internet access provider wants to stay fashion refashion their business to be more like a cable company and  give a package of of programs rather than what they're what the commission is regulating which is the providers that that promise not that you're going to get a select package of programming but that you're going to get everything on the internet then then if they're selecting the programming they may look more like a cable operator this is not what you're doing here this is not and in particular it's not what the commission's definition of broadband internet access service covers if the court has no furthe editorial control over the content on their networks there would be no need for open internet rules that broadband providers were not speakers because there wouldn't be any discrimination there wouldn't be any prioritization you would need a reasonable network management exception to the rules if broadband providers had discretion or control over the content on their networks want to go back to turn turner said the conduit function actually described cable companies as a conduit that is protected speech because in the words of the four dissenters selecting which speech to transmit is no less communication than creating the speech in the first place with the commission's concerned about is that broadband providers might select speech to transmit the purpose of the blocking throttling prioritization rules is to foreclose that thank you thank you so we've reached the last subject matter full service networked issues and we'll hear from m sixty years so you know here we are twenty years later and we're just having a debate and the statutes almost never mentioned in my clients were the people who were supposed to be the beneficiaries of very specific provisions included in that statu congress in one thousand nine hundred six you hear a lot about how they protected the internet they protected this will look at the statute read the statute information service is addressed in the statute internet access is addressed in the statute it should be telling here that congress omitted protections for information service it omitted protections for internet access it had that opportunity they're not there as these people claim and so basic mantra under which the communications would be offered in this country and then he added the second chapter opening markets the competition what was that focused on was focused on opening the local market to competition that local market that local connection to the information superhighway the on ramps to the information superhighway if you go back and read a new debates was a key focus of the statute and they provided very specific rules for how to do that so they said telecommunications somebody provides telecommunications service shall be treated as a common carrier they reiterated that and the protections that you hear about that are supposedly built in section two hundred still leave open the question of what's the communications honor what i would say is look carefully at the def the f c c is definition of broadband internet access services the capability to transmit data to substantially all internet endpoints how is that any different from the statutory definition of telecommunications which says the capability for a user to transmit information between among the points that they specify it meets that definition we don't have a brand x problem here because in brand x they were they were debating a service definition of a service that included both information processing and transmission the f c c has gone back and they get confused about this in their own brief because they refer to the transmission component of broadband internet access the definition of broadband internet access service is soley the train the capability to transmit that information between two substantially all internet m points there is no information processing here so brand x doesn't apply because for the simple reason that you don't have any information processing to combine without offering only talking about transmission and that's the point that my clients are focused on back in the back in the prehistoric times when you went to a o l and then you click through to the web that that click through didn't involve any information processing you're on a brings a very good point and that goes back to this discussion of what was the public switch network in one thousand nine hundred six the public switch network included everything that reached the internet that was the only way you could get to this broader internet so when congress was debating the one thousand nine hundred six act they knew about the inner they had a whole can title and communications decency act for title five that focused on porn on the internet so they clearly knew about the internet they did not put in any rights for information service providers other than the protection you were just recently talking about in section two thirty which you're absolutely right it does only protect you if you're a common carrier carrying that speech because you don't control the speech so the same thing with commercial service in  when congress to commercial service they were focused on personal communication services the services coming next they were looking forward to the twenty first century so as a petition the other petitioners would have it and frankly the f c c would have it somehow congress missed the whole boat in one thousand nine hundred six and didn't do and literally since basically the early two thousand and they've been doing everything they can to get out of it they said oh these services this broadband internet access service it's an information service therefore the statute doesn't apply oh now we get to the point where they say opes whoops made a mistake we're going to go back and say it isn't what we're  did you see that anywhere in the order that i saw what question saying it was wrong and i saw it the commission basically saying that they were now revisiting their determination right well we got that story so go ahead ok so at any rate the what's so fundamentally flawed here is where does the statute fit into this congress to find telecommunications telecommunications service whether you take the f c c view that they have prostration are you saying that forbearance i'm talking about for grants and your honor i'll get to that ok the point is they granted certain rights that were supposed to promote competition to help protect consumers and the commission now says oh we don't need to worry about that detail congressional scheme for promoting competition for solving many of the problems that judge williams has been raising about this because we're going to have multiple competitors like we did in the one nine hundred ninety s in the one nine hundred eighty s and in resale which this court heard numerous cases about they're going to go back and they're going to nor that entire congressional scheme and say oh we can for bear from that we can waive that because it's important for our light touch policy a policy found nowhere in the statute that we go forward on this they've had ten years of the light touch policy and the light says policy hasn't produced the results they predicted they admitted that in  thirty of the order that they could not reconcile their predictions with the actual facts they've gone back now and said four times that broadband is not being deployed and here's the interesting thing about the view of both the f c c and the plaintiffs if information services or as they say how do you build a network how do you get access to rights of way my companies in order to get access rights we have to be a regulated telecommunications care why because congress reserved access to those rights of way to regulated entities so the guys that already built their network either as a cable operator or as a as an incumbent telco they can do whatever they want they don't need to access it because they've already got it so how does that work that's why i say you need to step back as the supreme court said in utility or regulatory group and say what's the bigger picture here and that's the problem they can't square their arguments with the actual statutory text and i thought your argument was that the commission had had a standard for applying forbearance name that if you're at least an economic issue which your issues clearly are would only do so where there was competition where competition would satisfy the statutory purpose and we said is the statute asked you to look and you have to look in the context of the statute we're talking about local exchange carriers they basically said we can just forbear for all okola change gears across the country without ever looking at the market conditions and our point is no congress had a whole regime focused on promoting competition in the commission surely is right with the proposition that it has done forbearance without a individual geographic market by run for the simple reason that you were looking at it in different contexts and here they're coming back and saying a service that you know when they made that broad geographic claim it was in the context of their light touch policy and what we're saying is take a look at what the statute says look at the statutory definitions congress clearly was looking at the local markets when it was talking about these things and so to apply essentially the same standard across the board in determining waiver for forbearance such as not applicable the other thing we point out and since that time just to be yes your honor and i would say take a broader view take another look at that but the other thing to keep in mind is since that time they passed their own regulations and in their own regulations they lay out a market test and they didn't try to say oh those regulations don't apply to me but the point is you're dealing the only issue the section two fifty one deals with is competition it's designed to promote local competition so you can't say that waiving section two fifty one is about anything but competition that's the whole purpose of that section so their argument fails on that basis and they should have applied their own regs which required them if you if you look at section forty seven see if you are one point five four they should have gone through that step thank you from the  commission my first point is i don't disagree that mobile or in fixed broadband internet asked service or title to services so in that respect i'd like to make clear that we agree with full service network it's the path by which they get the we do think that in this respect they are trying to relay to get brand x but to go to the forbearance point the commission's determination here with forbearance was part of an overall effort to tailor the regulations to the minimum  york no it's not like the tailor going to your getting here's an important point about that they're going to look at the statue once again with the statute here is section ten of the act grants the commission broad forbearance with already both from statutes and rules and it's it is t qualified and the fact is you will find nothing in section ten that limits the commission's ability to take broad a broad look at necessary forbearance yes and she has historically in applying for  looked at the presence or absence of competition as a substitute protector for consumers and then many situations competition where it will be a reason for forbearance but it's not in all situations the statute itself  in ten b says that the commission posed to take competition into account but it doesn't say that competition is controlling here the commission did take competition into account and i think the gist of the full service network complaint resides in the commission's decision to forbear from two fifty one sections two fifty one and fifty two of the statute and there the commission explained in the an order at paragraph five thirteen and five fourteen that there were other protections it had not that that remained that would believe the including to fifty one or to fifty two it doesn't mean that they didn't serve a purpose or that they don't still serve a purpose in other contexts but it certainly gives the commission the authority to look at this context a context in which was retaining sections to a one and two  and say we don't need that specific protections up to fifty one to fifty two there were some that tailoring aspect comes in you don't have to take all of the what comes along with the two fifty one and two fifty two in order to protect specifically enjoins the commission to use forbearance authority to ensure that to promote the deployment of broadband and so one of the factors the commission took into account is whatever dampening impact there might be by can not forbearing from two fifty one to fifty two so it doesn't mean that the commission is exactly the same position after forbearing from two fifty one to fifty two than it would be if those provisions were in place the question before this court is whether it was sufficient that the commission knew it had in its hip pocket at forbear from and nonetheless maintain the open internet protections that i thought were crucial in this case the court has no further questions thank you  l has no time right you can take one minute like it thank you your honor and just very quickly again this goes back to the point you cannot you section to a one to do to fifty one that's exactly why congress added a tech section to fifty one delves deeply into local and if you look at prior supreme court cases they've said that you cannot require in a connection you had a case here in this court before and said you can't use to a one to do interconnection so the the argument that somehow they've got this back pocket safety net is just simply not there and again the problem is congress in crafting the ninety six act heard all these arguments heard all these things about you should examples people and they came up with a very specific regime for the f c c to just be able to say oh paul we decided that is more important to do broadband appointment which oh by the way was not included in the statute it was left as a freestanding provision of law to which this court should have signed some importance it was not included by congress to nine thirty thank you or for your presentations the case is submit