good morning honors and may please the court the principal issue in this case is whether the f c c has the discretion it claims to relegate internet service providers to common carrier status and whether in doing so it acted lawfully under communications act in the a p a an action that required it to take multiple legal and factual conclusions that it had previously and separately reached and reverse them once the central basis for the f c c is action here is it contention that internet access has become a telecommunications service because customers today principally use it to visit third party websites and obtain information from those websites and that the commission says is just telecommunications and our principle point here is that even if we think of internet access as exclusively about visiting third party websites to retrieve information from them that capability alone is a core information service that congress protected from common carrier status because in one thousand nine hundred six congress wasn't looking at internet access the way the commission is today congress believed that the best way to encourage investment and innovation in what it as a dynamic and extremely important technology was to give such services separate protected regulatory status walled off from common carriage to distinguish you know if  were right on a clean slate i get your point but don't you have to begin with brand x doesn't doesn't brand x didn't supreme court in brand x give the commission th choice or the discretion to define it is either information service or telecommunications hers is it doesn't that have to be our starting point well i'd be happy to start with that your honor because i don't think  properly read that way or that the central dispute in brand x and the ambiguity that the supreme court identified there was whether internet access service was on the one hand only an information service which the majority thought reasonable or on the other hand both an information service and a several telecommunications service package together which is what the dissent thought it had to be none of the justices so much as suggested that there wasn't an applications like email for example they are not including in part of the service so there is a separate information and what we disagree with that that's not the principal point i want to argue here our point is that even when you reduce the service so to what the commission has reduced it to which is visiting websites and retrieving information service that capability which is what the commission is labeling transmission in its entirety is not transmission that is a combination of transmission and computer processing capabilities that gives customers the capability of retrieving information using telecommunications commission it's all that i'm trying to put it under the management exception the management exception wouldn't apply here for a couple of reasons first of all with respect to any service your honor there are two ways of thinking about it there's the capability that's being provided to the customer and then there is what's going on the network to generate that capability when the capability being provided to the customer is what is being described in the statute the capability of retrieving information from stored in remote computers then that can't be defined as telecommunications management the reason there is a telecommunications management exception there is that with normal telecommunications pure telephone calls even then there's going to be some database consultation going on within the network so congress wanted to say that the fact that there's going to be some access to stored information within the network associated with a normal telephone call doesn't make that telephone call an information service because the capability that the customer is getting is still a telecommunications capability one then what's the meaningful difference because back in the days of phones there were database information processing functioning going on in the background that allowed a phone call to be completed and i'm thinking even a phone calls where the purpose of the phone call was to get information not necessarily even to talk to somebody so there used to be i just happen to know this is force information hotline nine zero nine seven six one three one three i think you could call that number and you would get up to date source information which is somewhat similar to what's happening with the web and undoubtedly there were there was information processing going on in the background and made sure that that call got completed so that the initiator could get the information isn't that similar to what's going on now in the background that you say has to be deemed an information service no it's not and let me then address directly what it is that the commission has said is telecommunications management and why they're wrong in calling that telecommunications management in particular there are two things that are going on the network that contribute to being able to provide this capability to customers to retrieve information that the commission has characterized as telecommunications management one of them is caching and caching as we discussed in the brief is when the i s p itself stores the most popular content inside th doesn't change the content right whether it's cached or not is let's assume they cash the new york times website whether it's cached or not the content the end user gets is identical that's right the only the only place that can be changed is on the new york times website so it seems like it meets the statutory definition of telecommunications the transmission of information without change no your hon transmission is always going to be part of any information service the reason that caching is an information service is it involves storage held by the i s p of the information that is being provided to the customer and storage of information to provide information to customers whether commission believes they think understand what technically is going on in the network one observation thinks the commission does think that consumers are buying access to the world wide web that's what they think they're buying that's right that's right cashing no that's right ok are buying the capability of retrieving information from third party websites you know as to caching the point that i'd like to emphasize is that the commission itself says that caching is an information service even when the content isn't changed as long as it's provided by third parties other than i asked piece same thing with d m s and that's a critical point because these in those cases it's not part of the telecommunications service but it's still performing exactly the same functions and when you have two services caching provided by us caching provided by somebody else d m s provided by us d n a is provided by someone else if they are performing exactly the same functions in conjunction with exactly the same service it can't be that they're telecommunications management with respect to one service and  information service with respect to the other because why not under this under the language of statute because the telecommunications management exception speaks in terms of the use of such capability for the management of a telecommunications service and obviously can't be for the management of the telecommunications service if it's not the person who's the entity that's providing the telecommute kitchen service is providing i think your honor is right that obviously it can't be if someone else is providing it but what follows from that we certainly would not let a third party manage our telecommunications network and so our point is that if customers can choose a third party to provide exactly the same function in connection with exactly the same service and it's not management when the third party does it it can't be management and we do whatever it is there a phone analogs of for example i think directory assistance was part of the basic service yes now if a third party comes along and says you know i've got a better directory service but better directory assistance program because i have done stuff that makes  faster i've got a better list what have you and then they came up with that as a competitor and they call my line instead to get directory assistance it seems to me what would have happened is although maybe it's not borne out historically that that would have been to an enhanced service or information service but the fact that the phone company had its own directory assistance wouldn't preclude there from being that dichotomy i don't know that that situation ever came up as you know the commission ever confronted it in exactly that way but the distinction the commission did draw and this was in the one nine hundred eighty five north american tel occasions association case that we cite in pay i think on page thirty eight of our brief is that when there were capabilities that were supporting a normal telephone call like directory assistance or speed dialing where there'd be a database somewhere which w number to a specific long a telephone number because that was simply part of the normal telecommunications service it was telecommunications management but it said that if instead those things were incidental to setting up a different capability and information service capability then it's not telecommunications management because it's managing something else and so the key question we think is what is the capability is being provided to customers here and is web access itself an information service and there are three interrelated parts of the statute that we think establish that it has to be read that way and one is the text of the statute which describes as we've discussed any service that provides the capability of retrieving or utilizing or making available information via telecommunications and when a customer retrieves a page from wikipedia or acquires information about the weather from weather dot com or makes available it's her information on a web page that is doing what an information service offers but these words weren't just put there in isolation there's a history to them and the history is that is this court and the supreme court said it codified a preexisting regulatory regime the f c c is computer regime and the m f j which specifically separated out for non common carriage treatment those that it's not simply although it's the case that everybody in brand x was just arguing about the unbundling of the last mile they were it's that brand x itself was about whether the whether that dumb pipe could be unbundled or required to be unbundled and whether it was a telecommunications service nobody nobody on the court disagreed that there was an information service going on at the i s p's computer processing facilities when it provided weapons and no one disagreed that the commission couldn't reasonably interpret the service that way well that's what the court was doing well looking at whether or not the commission's interpretation offer was reasonable in the court actually said that that the court says the entire question is whether the products here are functionally integrated that's the plain text situation like the components of a car this is a supreme court well functionally separate like cats and leeches and that's the position the commission's taking here and the court goes on to say choosing between those two is something congress left to the commission yes and so since there is an information service going on at the i s p facilities that already assembled information service the justice scalia was talking about the commission may have some discretion disaggregate some transmission component if it leaves information service composted on the table nobody in brand x disagreed that there was pizza making going on at the i s p and what the commission has done here that is different and that is not within the ambiguity addressed in brand x is say that the entirety of the service that is being provided at the i s p's facilities all of that computer processing is exclusively a telecommunications or it didn't quite do that right because if you look at the suite of services that was the deemed to be obviously in for in your view obviously information services in brand x that included things beyond web access it did and so i would have news groups and email and other stuff that happened at the portal  still do that information service under the rule today that's right your honor it's not my contention that brand x established as a matter of law that web access is an information service i'm making the much more modest contention that brand x doesn't stand for the proposition the commission cites it for which is that there is an ambiguity in the statute that the court has recognized that says the commission is free to determine there is zero information service capability in what the i a speed does and whether web access because brand x wasn't about what's going on in the i as piece computer facilities justice thomas said it's unchallenged that there's information service here so the court didn't go on to address that part of it the whole thing was about the dumb pipe which has storage lee been unbundled and required to be offered on a common carriage basis and justice thomas said you could think of it even if you completely right about that do we still have to apply the teaching of brand next year which is how this case comes out turns out what offer going on at the iowa speed facilities and so we don't think brand x stands for the proposition that there is a recognized ambiguity in the statute as to whether there is some information service going on at the i s p facilities that can't be regulated under title two if the information service also fits under the management exception how does that help you well if the information service fit under the management exception we would lose but our position is that it doesn't  caching and d n a s and the other functions we've described on about managing a telecommunications network they are not about things that are being done internal to the network to make the network work they are being their customer facing services that support the information service capability of providing the cost the ability to retrieve information from websites and if i could just take a few moments to address the interconnection point turner this court held in for arisan that edge providers are provided a service by p s when i as and i as peace act as common carriers for edge providers when they carry their traffic and the question in  whether the aya speeds were being compelled to act as common carriers in doing so here there's no question that the order has compelled i s p's to act as common carriers with respect to edge providers because the commission has said that edge providers can file complaints under title two against i a species but the commission didn't reclassify that separate service as a telecommunications service in honor of arise and we believe that that's unlawful and that's particularly true we think because of the term in the statute that says that a telecommunications carrier can be subjected to common carriage only to the extent that it is providing telecommunications service and because the commission didn't reclassify that particular service to providers as a common carrier service then the commission can't subject talking occasions carriers to common carriage to the extent they're providing that service so what they communicate and what the commission says i think in response to that is in some sense you could look at the back half and call it a separate edge providing service but in some sense you could also look at that and say it's the second half of the service that's being provided to the end user because that part of it's essential to make sure that the request made by the end user in fact is honored and the information gets back to it and so therefore we didn't have to reclassify edge facing half because weak reclassified the consumer facing half which necessarily that encompasses this other aspect of that is what the commission said your honor what the commission said in addition is that we make the commission set an implied promise to every reach our customers that we will carry traffic to them on a common carriage basis and that's just a complete fiction we don't make any such  promise because it's not true we don't engage in common carriage relationships with edge providers or other backbone providers those are privately negotiated agreements where the terms are very individual ised and upgrades and costs and things like that all individually negotiated so of course we didn't make a promise of that sort there's nothing in the record that suggests we made a promise of the sort it's just words that the commission put there in order to be able to justify subjecting interconnection arrangements to title two and permitting edge providers to file complaints against us without reclassifying that service and the history here is very telling but isn't it at least true that if you had if you had blocking at the end what you're describing is the edge facing part that would necessarily beget blocky over the last mile it would want to but we're not just talking about blocking we're talking about whether to one and two to have title to apply to those arrangements and whether edge providers can file suit alleging that any rate or practice in connection with that arrangement is just a reasonable that's pure common carriage and even if one were to say that there was a commitment that we wouldn't block content this takes us well beyond broken content this takes us into the world of pure common carriage with respect to an arrangement that the commission hasn't reclassified and the way this developed and he just issued something like a press release saying we were going to reclassify the sender side the edge side of the transaction but then came in and said please don't do the that would hurt google and days before the order came out it switched and they pulled out the sender side reclassification part that's what commissioner cliburn said she said that she was grateful to the chairman it says our separate statement for removing the sender side reclassification but that's like the cheshire cat the body disappeared the whole legal rationale was suddenly gone in a matter of days but the smile was still there the assertion of jurisdiction over our interconnection arrangements and with the body removed the really was no basis for this at all and you know the other rationale why doesn't w internet providers actions providers are making to consumers connection to the internet includes it's part of that service for two reasons first because it is a separate service as this court recognized but second because whatever that offer might say about that separate service it can't possibly be that we are saying that we are going to provide it on a common carriage basis between us and the edge providers we don't promise that anybody because we don't do it and the commission itself says in the order that it expects that these interconnection arrangements will continue to be individually negotiated just as they have in the past it's pure common carriage and so when the commission  says we have made a promise to retail customers that we were engaged in common carriage relationships with edge providers so they can enforce that under title two our answer is it's just not so and there's nothing there's no footnote there's no citation there's no record evidence to suggest that that promise has been made they've just deemed there to be a promise because they want to be able to apply title two to these interconnection arrangements without reclassifying them and that we say was unlawful the other rationale they offered was that and i suppose it's in some ways the same thing that isn't a connection arrangements are in connection with the retail service but the in connection with provision into one b so that's rates and practices and classifications in connection with a service can be covered not that a separate service quote in connection with the service can be can be covered and because the statute says that a telecommunications carrier can only be subject to common carriage to the extent it is providing telecommunications services the commission can say that a separate service is in connection with a title to service and is therefore subject title to without reclassifying it and with the course permission i'd like to reserve the remainder of my time  it please the court this order is designed to put into place after a decade of effort legally sustainable standards to keep the internet open the order defines a specific broadband transmission service within the statutory definitions and set out in title two with discretion identified by the supreme court in brand x and brand x is the starting point for our view of the water the critical question in technology works and so what the commission has done in the order is to look at how the technology works today it has found is that there were separate things being offered in a retail  service and kind of resegregated into a transmission component and an information services component at that level of generality i think everybody even the other side i think would say that brand x sanctions that approach but their point is that you've done one thing more than that and the difference is whether you think that one thing is a big thing or a small thing from you the but the one thing more is that there was a piece of what would have been the information services component which is access to the web you put that into the transmission component and the question is is that just sort of the type of thing that lies within the commission's your discretion to do or is that forbidden by the statute because that's necessarily part of information services within the meaning of the statute under the text and the way that those terms have become classify d s l as a title to service as a telecommunications service and that service provided the same ability to use packet switch networks to reach any destination including whatever websites were available in one thousand nine hundred in fact the telecommunications has never been limited to certain destinations the assertion that internet but can i just ask a follow up on d s l so d s l pretty two thousand and five was telecommunications service but i thought that what happened with d s l was if we use a o l for the example d s l would take you to the a o l portal but then there was a separate there was a separate gateway from that portal to the web and that was an information service the destination we had when you had the browser that would take you directly to a website was there a broadband provider in the background that was doing some information processing at its server that made sure that you got to that website  that takes us to the telecommunications exception there was always computing functions going on there was never the last mile that consisted of a wire and no computing that cannot be found in brand information content that approach was largely adopted by the telecommunications management exception and it explains the commission's reasoning in this order in a very direct way and if i might looking at the telecommunications path which i think now unquestionably exists the commission also looked at other functions and it divided them into two groups one in the i think these petitions don't contest this with functions like routing function it helps more traffic to the destination intended by the consumer caching is storing of preexisting content no original creation of content and also facilitates routing and that allows th let me ask you now on brand x statutory question which is that the response to this court's horizon decision the commission seems headed for regulating under seven  reason for abandoning that approach what what's the policy explanation for that decision so the polls he explains but as we listen as we learned from the rocket compiled in question is what after of arise after this course for eyes and after the commission yes focus its attention on proceeding under seven zero six what changed its mind it couldn't have been changed circumstances n if something is an information service it can be regulated in a way that treats it as common carriage and so the fact that it might fall within in connection with seems like it runs into over as an obstacle i so you're talking about i suppose an agreement between the broadband provider and somebody at the edge or somebody that's involved the traffic strange in the interim then the fact that you're not applying the rules so that would mean that there's no anti blocking problem upstream and it's going to have downstream effects on me and so i want to make sure that that company that i don't know has undertakes a better negotiating posture or is it the edge provider who's involved in negotiations who then so is the complain idea that a charge for prior to zation sounds like a charge for a fridge rated cars on a railroad it sounds like you know you get something special you while they're an important with spect other service and so it seems the idea that there should be a channel like services for which latency is not a problem against services for which i name it please the court in the time what i'd have i'd like to address two issues first petitioners what they describe as their principal contention which is that offer and access to third party websites falls within the statutory definition of an information service and second this question about re classification with respect to the edge phase in service i understand that there's an as principal argument to be twofold with respect to web access one is simply providing the capability of accessing a third party website no matter how it's accomplished falls within the the requirement that an information service be provided via telecommunications which makes clear that a telecommunications pathway in and of itself can't satisfy the definition of an information service and they don't so they can test that providing that communications pathway not only over the last mile but all the way to the edge much through the definition of a telecommunications service because it is transporting a packet of information that is created by the user to be in between the destinations of her choice without any change in its content claim that provide own that better service becomes an information service simply because it results in the capability of accessing websites cannot possibly be right if it were a bare telephone line would be information but when you say cannot possibly be right it makes it sound like it would have been unreasonable for the commission to reach any other conclusion where i don't understand the commission to ever have said that that bear transportation capability constitutes an information service instead what i think the commission has a  is their second argument which is that that capability is provided by some under the hood computer processing that's not visible to the user of things like the n s n caching and that argument is wrong as well for the reasons that have largely been discussed the question is not about the nature of the computer processing what it does it's how it's used and the same service can be an information service when used by somebody else for a different purpose and within the telecommunications management when it's used to facilitate the operation of a telecommunications service for example a database of names and telephone numbers one provided at white pages dot com is clearly an information service but when used to provide directory assistance by telephone company falls within the classic exception of the telecom management before that is they had jumped to basic service and that's all that d n a s does here it helps the company translate ordinary english explanations about where the user wants to go into the that the computer system needs in order to get them where they want to go with respect to interconnection i would think about the question this way even if you thought that only the last  mile service is a telecommunications service that would be sufficient to render these providers telecommunication providers and therefore common carriers subject title to title two then tells us the scope of permissible regulation of those common carriers and it says that commission has authority over practices for and in connection with that service practices born in connection with that service aren't limited to practice is that directly implicates the relationship between the customer the common carriage customer and the provider but can also reach practices elsewhere in the network that have the same impact as blocking for example at the door of the threshold of the user's computer as opposed to the threshold of the network the commission reasonably concluded that interconnection practice is going to have the same purpose and effect as the kinds of practices that they had abundant reason to believe for interfering with their threaten to interfere with the virtuous cycle here what do you think about the co between the user m e edge of the internet in order to do that you have to have interconnection agreements no no company can fulfill that promise without them and the interconnection disputes manifestly can interfere with the fulfillment of that promise all the commission has said here is when those disputes interfere with the promised service they will sort jurisdiction over that they have not said by the way that they are going to exercise this power in order to ensure fairness to the edge providers they have made clear that the only purpose of taking jurisdiction over these disputes is to protect the consumer experience at the end you back old fashioned great regulation the telephone companies and all the other common carrier subject to traditional rate regulation had to buy their inputs and the price they paid for their inputs became relevant in setting their rates but did the f c c or any other of the natural monopoly regulatory commissions ever purport to actually regulate those decisions under i don't know if the other statutes happen in connection with race but so let's stick with the f c c internet you'd ever try to regulate those i'm not and if it doesn't that tell us something well let me answer it in this way and i hope it's responsive to your question which is that it has always been the case that common carriers telephone common carriers  classified as such by virtue of their relationship with their end user customers and one of the obligations that was imposed on them was in fact interconnection they had to interconnect their networks with each other and that wasn't because anybody understood them to be holding out interconnection to other networks on a common carriage basis the commission was never required to classify that as a separate services separate interconnection facing service and as a consequence they had to interconnect and disputes about those interconnection agreements have always been subject  to the jurisdiction of the commission and i don't think that the commission has done anything radically different here and it's certainly falls within the scope of their power under title to to reach practices that have a manifest harmful effect on the use th at common carriage customers experience and the commission had abundant evidence that this kind of interconnection dispute could in fact disrupt the service that were cited evidence in the record where a dispute with net x and some had led to broad degradations and quality that basically made the internet unusable for millions of users for things like video conferencing or tell the work that the commission has abundant reason to be concerned about this i will say however that the objections to the interconnection piece of the order have a hypothetical error to them the only thing that the commission has said at this point is that it's open to hear disputes about this in the future it hasn't said what particular rules it will impose on them other than that it will view it through the framework of title to they have said that it does not fall counsel come up the next phase definitely challenge the application of section two one and you look at the commission's justification for applying to one and out i would like to respectfully disagree because i think the trial in sheer is to the use of section two zero one to regulate that relationship what they say is that this is not a common carriage relationship they can do no no no then the next set of counsel talk about the complaining about whether this relationship and sort of conduct falls within the scope of section two a one this group will have ample opportunity later to result that question ok q ok how much time  what i would like to explain is that there are two sets of very important authorities that have always a stablished that access to the web alone is an information or enhanced service and even if judge table you believe brand x requires us to be  chevron step two rather than chevron step one these authorities would bear on the reasonable s of the commission's determination here and the first set of authorities are the regulatory m f j history which quite clearly what the regulatory the computer to and  history and the words here were written and put into the statute to incorporate that history as the supreme court and this court said under the commission's rule the fining a hand service any service that quote involves subscriber interaction with stored data was an enhanced service and after the one thousand nine hundred six act was passed the commission said that everything that satisfied our rule on enhanced services was now an information service and under the m f j judge green said that the information service definition there which was incorporated virtually rebate him into the act included services that provided quote mere database access and what he said was that when telephone companies because it was telephone companies when telephone companies provide the infrastructure necessary to access the information services provided by others that too is an information service so to the extent as a supreme court in this court have held that regulatory history has been codified in the act that point specifically in the direction that web access alone is an information service and the other set of authorities is what congress wrote into the act in section two thirty because in section two thirty congress made it the national policy of the united states that the internet and other interactive computer services should be unfettered by federal regulation and specifically defined interactive computer services as any information service or system including specifically access to the internet so us isn't a section  yes but the statement of national policy that interactive computer services should be unfettered whereas in that section and so certainly that definition that specifically included access to the internet was part of the national policy that congress wrote into the text of the act that said it should be unfettered by federal regulation and the federal regulation that congress was talking about surely included at least the common carrier regulation from which these services had historically been shielded under the f c c is computer to regime so we think that there's no or i understand the commission relies on brand x for its discretion or of the authority that actually addresses the question of whether web access standing around is an information service that exclusively points in the direction that it is and again we think even if the commission's decision isn't regarded as failing chevron step one it should fail chevron step two because the whole idea of chevron is that congress has in certain instances at least delegated to the commission the praga have to make certain judgments to fill in gaps in the statute but the congress that wrote that access to the internet should remain unfettered by federal regulation wasn't we think delegating to the commission the power to decide that access to the internet should be treated as common carriage can i ask a follow up on that which is that that harkens back to the two thirty line which the section two thirty language now as to that language couldn't you say the same thing about d s l no you're on a l was regulated only that was just the dumb pipe from the customer's facilities to the ice pee facilities if it was a well or or the only part of that that was regulated was the piece that could be severed out and i understand that and i guess my question though is that that seems to me to be eminently describable as access to the internet it is access to the i s p's facilities but standing alone it doesn't have the kind of computer facing gateway qualities that actually creates the interaction other things have to happen yes and you're purchasing that service you're purchasing from the from the telephone or cable company or whoever it is it's providing a transmission just pure transmission to get to the highest piece the i s p that has those computer processing functions but that on a different footing and just a point about the interconnection issue i think f c c counsel citation to cable and wireless really shows that we're talking about two different things the cable and wireless decision the international settlements case was one in which the carrier here was paying another carrier to terminate a call to complete the service it was providing the customer the reason this court horizon said that the traffic exchange an interconnection happening at the edge was a common what was its using a separate service was because it was relying on the supreme court's midwest video to decision which talked about cable companies carrying the programming of programmers carrying that content to its reach all subscribers and treated that as a separate service that couldn't be subject to common carriage that's what's going on here this is the carrying of content by content providers to another set of customers that's why the court said that was a separate service that couldn't independently be subject to common carriage unless it was reclassified and judge williams everything you said about the one sided nature of way the costs are being imposed in the paid prioritization issue absolutely applied to interconnection because the interconnection complaints are not going to be filed by retail customers arise will be the impact of them on the consumer well the issue in the case that's all that's the only issue but the issue will be did we violate common carriage obligations in providing that service to the edge providers and even if he did about interconnection we haven't talked about notice here but the starkest notice violation in this segment of the argument was interconnection every theory that we've been talking about today was completely absent from the record from the notice  the chairman said when the notice was first issued i think interconnection should be addressed in a separate proceeding it was only in the course of the last few days that the commission came up with the theory that your honor just mentioned which is that the reach of customer relationship is somehow grabbing on to the interconnection arrangements and it's and the second is all subsumed within the first we never commented on that we never commented on that because we never heard of it we never heard of it because the commission's intention once it moved to the rast phase of this was to re classify the sender side the edge provider side and only at the very end when google came in did that part of the order get switched and so if nothing else that part of the order should be vacated because there was any there wasn't anything like the kind of notice that would be necessary before this kind of theory was adopted by the commission in a r