good morning honors in may please the court morning 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 the 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 reversed them all once the central basis for the f c c is action here its 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 in innovation in what it saw as a dynamic and extremely important technology was to give such services separate protected regulatory status walled off from common carriage to  well i'd be happy to start with that your because i don't think brand x is properly read that way 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 was reasonable or on the other hand both information service and the several telecommunications services packaged together which is what the dissent thought it had to be none of the justices so much as suggested that there wasn't an information service in what the i s p was doing but that's not what they've actually done you know because what they mean by that is that other applications like email for example they are not including in part of the service information service and what we disagree with that that's not the principal point i want to argue here more point is that even when you reduce the service solely 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 t get under the illusion of exception the management exception wouldn't apply here for a couple of reasons first of all with respect to any service or 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 be defined as telecommunications management the reason there's 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 so it is 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 you know 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 that the source information hotline i know 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 that 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 to get information service no it's not and let me that address directly what it is  commission has said is telecommunications management and why they're wrong in calling that telecommunications national and tickler 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 transmission between or among points specified by the user of information of the answers choosing out change that's correct and that's what happens with caching well yes but 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 the content is changed is not or not has 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 is unchanged as long as it's provided by third parties other than i as piece the same thing with the n s a and that's a critical point because the muslims cases it's not part of the telecommunications service but it's still performing exactly the same functions and and when you have two services caching provided by us caching provided by somebody else d m s provided by us d provided by someone else if they are performing exactly the same functions in conjunction with exactly the same service it can't be that their telecommunications management with respect to one service and information service with respect to the other one just because why  a 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 is the  and service is providing so 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 when we do whatever it is there for an analog so for example i think directory assistance was part of the basic service yes and 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 it faster i've got a better list what have you and directory assistance wouldn't preclude there from being that dichotomy i don't know that situation ever came up so no the commission ever confronted it in exactly that way but the distinction the commission did draw and this was in the ninety five north american telling patients association case that we cite in the offing on page thirty eight of our brief is that when there were capabilities that we're supporting a normal telephone call like directory assistance or speed dialing where there'd be a database somewhere which would translate a number to a specific along our telephone number because that was simply part of the normal telecommunications service it was taught me patience 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 has been provided to customers here and is web access itself an information service and there are three interrelated parts of the statute that we think established 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 wikipedia or acquires information about the weather from weather dot com or makes available it's the information on a web page that is doing what 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 services which provided access to information stored on remote computers and so assembled information surface at the ice to send in his dissent yes but that's what we are referring to was the last marker but i want to be clear that it's not simply although it's the case that everybody in brand x was just 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 web disagreed that the  information service composted on the table nobody in brand x disagreed that there was pizza making going on at the iowa speed 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 a speech facilities all of that computer processing is exclusively a telecommunications but that didn't quite do that right because if you look at the s 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 s p does and what it web access because  about what's going on in the i s p's 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 it has stuart we've been unbundled and required to be offered on ancillary to the commission to the and that's what i would resist your honor which is the court in brand x said that offer was ambiguous and it said the telecommunications service was ambiguous but it never said that information service was an ambiguous term as applied to what's going on at the i speak 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 iowa city facilities that can't be regulated under title if the information service also fits under the management exception how does that help you if you information service fit under the management exception we would lose but our position is that it doesn't fit under the telecommunications management exception that 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 the customer facing services that support the information service capability of providing the customer the ability to retrieve information from websites if i could just take a few moments to address the interconnection point tur providers when they carry their traffic and the question arises and was whether the i s he's were being compelled to act as common carriers in doing so here there's no question that the order has compelled 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 ice pieces but the commission didn't we classify that separate service as a telecommunications service and under horizon 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 we classify that particular service to edge providers as a common carrier service then the commission camp subject talking occasions carriers to com carriage to the extent they're providing that services so what they can get what the conditions 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 can 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 end user in fact is honored and information gets back to it and so therefore we didn't have said an implied promise to every retail customer 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 implied 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 eyes and upgrades and costs and things like that are 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 th 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 we classifying that service and the history here is very telling but it is at least true that if you had if you had blocking at the in what you're describing is the edge facing part that would necessarily beget blocky over the last mile it we're going to but we're not just talking about blocking we're talking about whether to a one and two or 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 blocking 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 originally the chairman said like a press release saying we are going to reclassify the sender side the edge side of the transaction but then google came in and said please don't do that 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 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 russia doesn't  whatever that offer might say about that separate service it can't passively 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 to 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 passed it's pure common carriage and so when the commission says  have made a promise to retail customers that we will engage in common carriage relationships with edge providers so they can enforce that under title to 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  that we say is unlawful the other rationale they offer was that and i suppose it's in some ways the same thing that is in a connection arrangements are in connection with the retail service but in connection with provision into a one b says 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 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 it please the court this order is designed to put into place after a decade of effort legal sustainable standards to keep the internet open the order defines a specific right being transmission service within the statutory definitions and set out in title two within the discretion identified by the supreme court in brand x and one index is the starting point for our view of the order the critical question is ambiguous about whether it describes only the offered finished product where the products to st discrete components as well the question it went on to say that turns not on the language of the act but quote on the factual particulars of how internet technology works and so what the commission has done in the order is to look at how the technology works today and what it has found is that there are two separate things being offered in a retail  composite information service and kind of resegregated into a transmission component and information services opponent at that level of generality i think everybody even the other side i think would say that brand x sanctions that approach but the 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 the one thing or is that there was a piece of what would have any information sources component which is access to the web and you put that into the transmission component and the question is is that just sort of the type of thing the lies within the commission is your discretion to do or is that for them by the statute because that's necessarily part of information services within the meaning  networks to reach any destination including whatever websites were available in the one nine hundred ninety s in fact the telecommunications has never been limited to certain destinations the assertion that i then there was a separate there's a subway get away from that part of the bat and that was that information service yes rania thought it was the only network was used but the definition of telecommunications did not depend on what tell patients certain destinations are uncertain destinations or not but there's nothing in the statutory language that talks about the destination but when you have that 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 was always and this is another point that takes us to the telecommunications monson exception there was always information without change in form in 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 if i looking at the telecommunications path which i think now unquestionably exists the commission will also look at other functions and it divided them into two groups one and i think these petitions don't contest provider's right and yet the they commission apparently for good reason chose not to reclassify the service to the edge providers yes that a substantial point the way the internet the term internet itself expresses the fact that there are multiple networks that stance traffic for the  connection with this and that i thought that was your fallback argument and the reason i asked about that is because at and classified as well documented the following that under but it isn't if something is an information service blocking at home on the edge facing part of this yes so you're talking about i suppose an agreement between the broadband provider and somebody at the edge or somebody this involved the traffic strange in the interim then the if the conduct of the promise made to them so they can come and the situation is that there is that some consumer who says i understand what's going on up stream 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 it undertakes  would be assessed on the edge provider and the commission else so strongly about that charge that it makes a complete battle scarred lots of commercial reasonable that's regardless surface of how time sensitive that special th it sounds like you know you've got something special you pay something special that is clearly not discriminatory or you are if it's discriminatory in some technical  it please the court in the time that i'd have i'd like to address two issues first petitioners what they describe as their principal contention which is that offer an access to third party websites falls within the statutory definition of information service and second this question about with respect to the edge phase in service i understand petitioners principle 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 definition of an information service because it provides a capability of accessing and manipulating information on that website on that view providing a pathway to netflix is the same as being netflix and that can't possibly be right and what it ignores is  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 seriously contest that providing that communications pathway not only over the last mile but all the way to the edge meets 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  content the claim that provider and that bear 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  constitutes an information service instead what i think the commission has adopted 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 things like the innocent 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 at 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 the 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 a telephone company falls within the classic exception of the telecom management before that is they have gone 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 computer gobbledygook 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 to title two title two then tells us the scope of permissible regulation of those common carriers and it says that the commission has authority over practices for and in connection with that service practices foreign in connection with that service aren't limited to practices that directly implicate that 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  as walking for example at the door of a 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 of that it's all that different at the end of the day because either way the mission has said is that you have promised to transport information between the user and the edge of the internet in order to do that you have to have interconnection agreements no no company can can 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  let me answer it in this way and i hope it's a response of your question which is that it has always been the case that common carriers telephone common carriers were classified as such by virtue of their relationship with their and user customers and one of the obligations that was imposed on them was in fact i connection 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 a consequence they had to interconnect and disputes about those interconnection agreements are have always been subject to the jurisdiction of the commission and i don't think that that the commission has done anything radically different here and it certainly falls within the scope of the power under title two to reach practices that have a manifest harmful effect on the use that common carriage customers experience and they commission had abundant made the internet unusable for millions of users for things like video conferencing or tell of 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 the only thing that the commission has said at this point 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 t about the judge williams and application of section two one and you look at the commission's justification for applying to one and it's entirely based on a a notion that  say by the commission prioritization rule is necessary there are complaining about whether this relationship and sort of conduct falls within the scope of section two of one this right have ample opportunity later to resolve that question ok you i'd like to begin by going to what was veteran of arsons first question of f c c counsel which is your honor said that access to the web does at least seem to be a new piece of it and how is that been treated and what i would like to explain is that there are two sets of very would bear on the reasonable s of the commission's determination here and the first set of authorities are the regulatory an m f a history which quite clearly the regulatory the computer too and our m f j 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 defining a hand service any service that quote involves subscriber interaction with stored data was an 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 forbade him into the act included services that provided quote mere database access and what he said was that when telephone companies because then 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 the supreme court in this court upheld that regulatory history has been codified in the act that all points 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 this is a section right yes but the statement of national policy that interactive computer services should be unfettered as in that section and so certainly that definition of 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 have historically been shielded under the f c c s computer two regime so we think that there's no way understand the commission relies on brand x for its discretion well the authority that actually addresses the question of whether web access standing alone is information service of it 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 prerogative 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 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 just about service you're purchasing from the from the telephone or cable company or whoever it is it's providing transmission pure transmission to get to the i c c i s p that has those computer processing functions 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 are talking about two different things the cable and wireless decision in international settlements case was one in which to carry here was paying another carrier to terminate a call to complete the service it was providing the customer the reason this court and arise and said that the traffic exchange and interconnection happening at the edge was a common carrier what was its use in 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 pa absolutely applied interconnection because the interconnection complaints are not going to be filed by retail customers that's a fiction this is all about jurisdiction over the disputes that have arisen between the edge providers and the other content providers and the your honour's are i'm sure about a connection 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 a theory that your honor just mentioned which is that of customer relationship is somehow grabbing on to the interconnection arrangements and it's and the second is also soon 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 last phase of this was to reclassify 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 there wasn't anything like the kind of notice that would be necessary before this kind of theory was adopted by the commission at