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 the public switch network and mobile broadband isn't 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 going to term that's referred to the public switch telephone network th ovation 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 regulation that file a clear aspect of the statute and one aspect of the statute that's clear and i'm bigger with is that the public switch network can only be a single network can i  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 you don't get a public switch network then what's the reason to think that congress would have thought that mobile broadband would be commercial mobile service rather commercial 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 honest question about stepping back but i really think once you step back you want to back forward again into the question is th 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 in tending to telephone numbers and the network that and says is now a single switch network that is what it's rule says yes it's rule says the network that uses either ten telephone numbers for 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 mobile 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 ip addresses there's no ubiquitous access if we 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 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 mutual ality it means everybody who gets on from any point  indicated in the legislative history and that the commission articulated in the second report in order well on the legislative history history that it issued right after section three thirty two is an act like 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 cell 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 essentially the same kind of activity 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 try just market tests 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 cellular voice that was an important purpose but it was not a purpose to say of 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 delegated 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 because the existing rule prohibited that and the commission changed that rule and that was the rule on 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 an interconnected service 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 all so it just says 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 relies on it's n p r and was just a sentence that said for mobile broadband internet access service doesn't fit within the definition of commercial mobile service that was all there was a footnote that cited the rule defining public switch network now anyone i think reading that would think oh they want us to 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're going to amend that rule now suggesting they're 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 i mean the 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 a 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 all the different possible ways if everything's up for grabs that the commission might change its rules and 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 on 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 change course and we did put in extensive submissions  t everybody put in submissions that were our attempt to address everything that was on the horizon but we miss 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 want to substitute and ubiquity test for 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 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 and i have two options for accessing the web via my tablet one is via wife i which i think counts as a fixed broadband and the other is via some cell connection which is mobile broadband and it may be the which connection i have based on what i am in my house if i'm down the hall maybe the  fixed broadband connection goes on and the mobile connection fits 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 your honor i think that would be a question very well suited for the commission's you know vaunted technical expertise you know the one thing that i can say is that there are two different tests both of which has to be met have to 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 arise and the rules were different between fixed and mobile and i suppose your honor scenario could come up there as well unlike some of the things we've been discussing that really may well fall within the kinds of interest to see is that the act that you would least want to see what kind of record the commission brought what it said about it and how to deal with it but there's no question that there can be an asymmetry here there was an a and the statute contemplates it by but by having these different requirements we get this 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 idea that 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 alleviate that loggerhead in order to make sure that we don't have this impasse we're destroying private mail or commercial mobile service in a way that a compass is mobile broadband now of course you have the are you know that they can't do that because it doesn't comport with the statutory meaning of public wish network i 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 an awkward place well the commission has acknowledged that there is a statutory contradiction here but it didn't actually resolve that statutory contradiction didn't explain why it what it said is one of the advantages of it separate finding about the service being interconnect with the public which that work is that it would remove the need to resolve the statutory what it called the statutory contradiction if it was you know information talking to patients service under one but a private medical service on another the private mobile service provision is very specific a private mobile service shall not be subject to  carriage regulation that is the more specific so shall that but the private mobile service provision is the more specific of the two because it's not a general definition it's specifically rates where it's a mobile broadband service and in addition i think to the extent there is any contradiction in the statu common carriage only to the extent that it provides telecommunications services and a private mobile service is everything that's not a commercial mobile service and it shall not be subject to common carriage and when you layer on to that provision we were talking about in the last segment section two thirty in which congress said it's 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 would agree with that there was a need for certainty which are clear to their extent but then they have a 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 prohibit and we need to have that there is a backstop as we discover new practices well what you deal with when you discover new practices is you issue a notice of inquiry you issue a notice of proposed rule making you establish a rule the prospect of lea makes them unlawful if you can 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 want after the fact on lawful and what really is striking about this is they even described in the order practices that they say out there and we don't know whether they violate a new rule or doc the example they gave was the t 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 love commission says we don't know yet whether th conduct standards if they don't know we serve 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 specific 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 stymie innovation and investment you cannot possibly consider non arbitrary or rule which accomplishes the for mobile broadband internet access service does it fit within the definition of commercial mobile service and 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 say yes we never addressed why it would be wrong for the commission to replace its existing rule defining a functional equivalence test with a new rule created for this case only the commission sa think two of the things that we didn't address with the amendment to the rule on interconnected service and they're ignoring their own rule on functional equivalence because there was no noticed so even though we put a lot of paper  we didn't address those two things because we didn't know about them and you know that what i've been spending most of the  function with notice said that the commission was considering whether to reclassify mobile broadband and it said in addition were there any what would be the legal basis of doing that and it said in addition by the way everybody let's look at the governing statute 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 quota so anybody had to do was to look at the statute which the commission had quite kindly or specifically identified in the notice itself took it to well to figure out that functional comments would have been a an issue in the case i think that the notice objection here really is a requirement is trying to impose a requirement on the commission to write notice for a second grader  time and time again their balloon is comments on precisely this you from the mobile petitioner's 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 explained their position why that was the case in their reply comments they specifically discussed this question of publics which network and they said they made the same arguments they make here that it has to be the public switch telephone and it said does it fit within the definition of commercial mobile service and then the petitioner say well you just asked whether it's 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 and regulation by the commission so that the idea that somehow they were supposed to end their conversation or were blindsided by the idea that what 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 i think it is clear you are still connected connected and i don't know that there's a difference between the use of the term interconnected and connected that there was a distinction that congress intended to be coming from the russian i could in fact he switched statute i think it is a reasonable interpretation of peter connected to me that you're connected to part of the network rather than every point on the network i think that was the commission's position even in the under the old rule that for example w order cites this example of nine hundred number blocking that can take a 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  class of numbers 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 there's a pager network all 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 is the big internet access service is interconnected with the internet which is part now part of the problems which are the fact that to be specific sites using ip addresses are all part of the public switch network to your point about interconnected which i don't think the parties have raised i think would be an equally reasonable position for the commission to take or at least a reasonable reading of this to actually that to make no distinction between interconnected and connected if your honor is concerned about the aspect that doesn't reach all at all points on the network the commission dealt with that by sa never the case that you couldn't happen network that that has to reach technically every point on the network and it was it was the gym which seems to me reasonable permissible for the commission to treat the network and after all has 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 a convergence of technology i'm the convergence point i think goes to why questions interpretation of  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 women's of commercial mobile service and that doesn't require on anything conceptualizing these as a single network it just it focuses on the commissions determination that at the very least it's the functional equivalent what the old phone system was and how he was internet to reach if it looks to whether it can perform that same function communicating to base at least a substantial portion of the public and that's clearly in present day with modern modern marketplace what mobile technology or telephone technology that's why it used nappy numbers and not just the idea of the telephone but it but in fact what mobile dishes are trying to do is read a word into the statute that doesn't so this is that we're competitive with a the public switch network so because it by the same guy goes tory scheme but i actually think the purpose was something slightly different and important to support argument there was a dispute that some carriers had taken advantage of what had been defined as private mobile service actually conduct a public commercial mobile service this was predecessor i think of that style and congress was i think this is where the word private does some work on the definition is private mobile service however you look at mobile broadband internet access services it is hardly a private service  and and we're 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 specifically points to the fact that seventy three point six percent of the adults aged thirteen or over public use to judge people have 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 that the functional equivalence looks to whether or not this service provide functionally equivalent is functionally equipment what commercial mobile service in its natural 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 it used to i guess makes a lot of sense i would point the court back to the language of the structure because this is not a statute that elevates its purpose over its terms no statute does the statute in particular repeats time and time again these terms are to be as specified by regulation by the commission if congress had a 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  if the court has no further questions three zero three but only goes to answer the specific question but those are the only two who are happy doing this part of the order so that the others were not silent because they didn't know they were silent because they  they're not right this agency has been trying very hard to get this right for ten years it has received sage guidance from this court it has implemented and to your question just  classes of users i still be available to a substantial portion of the public you never says more all of the that's that's the word that's the definition of commercial mobile service proposition about congress purpose in three thirty two i refer the course of our 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 said the commission said it here as well with respect to ubiquity ubiquity is not a function to ubiquitous things are not functionally equivalent just because they're both ubiquitous the postal network is  but the internet and the postal network are not functional equivalent and i checked the citations that interveners council just mentioned we never said please don't replace your existing functional equivalent 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 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 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  change network in far networks but what's characteristic of those is you can there 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 one hundred calls and that's right it doesn't destroy being interconnected to the network if the parent subscribes to a service that keeps his or her child from accessing one hundred calls that kind of minimize 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 a who i represent with respect to the internet conduct standard 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 c t a eight hundred eighty and those are the parties who are making this argument 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 event like to address three points today first by broadband providers or speakers and numbers the press second where these rules are subject to strict scrutiny and third why the rules fail even intermediate scrutiny turns the first point the first amendment has always limited the government's ability to evaluate the dissemination of content bro providers perform the same function as a printing press or you can issue which we're challenging so broadband providers are speakers and i was the press i think the court recognized as much in of arisan decision where the court said there's no material distinction between a broadband provider and a cable operator like cable operators broadband providers exercise discretion over the content that transmits their networks in fact the rules presume that broadband providers in light exercise discretion to discriminate or prioritize some speech over other speech it's just you know you're over the  can be there could be the customers of those provide broadband providers but the rules for clothes that ability so to hear the rules prohibit broadband providers from exercising the editorial discretion that i think to be in this portion of the argument i guess i g if you join the challenge 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 right and if you're a common carrier it seems like with all comm expectation is that you're a pipeline to everything you hold yourself indiscriminately element to everything and once you do that you know if you want to be a provider who segregate content i suppose you could you could say i want to be an i s p who's focused on name family friendly internet service that would be review for reasonable network management which means it would be subject to the rules and could the definition of broadband internet access service also encompasses any service not to evade the rules so the commission could in its discretion 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 transmits its network cable companies do and what the court said in turner's that he will companies are speakers 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 are 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 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 it it gives the commission all the discretion of the world to regulate the dissemination of content it's a lot like the law in city of lakewood which involved placement of news racks of course it's reports that this law gives too much discretion to the government to decide how to speech should be disseminated so to hear robin classic broadband provider who's the target of the rule which is indiscriminate access to the web for that person are you making for that entity making the same person an argument as they did there the same thing as a cable operator yes because that would should be has that because for them i just to find out why they're why why i just 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 a regulatory compulsion so the new york times in their website  they accept all comments on their website or all classified ads they don't forgo or surrender their right to discriminate or choose not to accept certain ads so too with a broadband provider  writers from any liability for anything they transmit right that's correct or it isn't isn't that it is a protection dependent on the fact that internet providers don't exercise communications decency act actually encourages broadband providers to restrict access to content that lewd harassing violence or otherwise objectionable so congress at the same time that granting immunity for things that you trade 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 cable context i don't know how the court can distinguish broadband providers from cable operators when in uprising case the court said there's no material distinction it said it was video two is indistinguishable and the court rejected each of the reasons that the yes you see was providing to distinguish that case from the rising case and one of the particular reasons that the court rejected was the commission's argument that brought kill operators exercise editorial discretion or control over content and just feel right if the court said that's not a basis to distinguish broadband providers because they do exercise control what whereas previously they could have discriminate against the content of certain that 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  rs two reasons why the rules fail intermediate scrutiny the first is that the government made no attempt to tailor the rules to minimize the burden on speech he didn't view broadband providers as seekers at all as the court wrote in for eyes and this is in all circumstances and with respect to all age providers the government's first and first amendment analysis in this case just doesn't reflect the care and caution that the first and that requires the commission also says in the order that i itself the commission recognizes would be a less restrictive alternative and still effective at preserving the open internet so paragraph one fifty four five sixty three and five seventy five  it please the court broadband internet access providers are engaged in transportation not expression and that's clear from the definition commission's definition of what broadband internet access service is it is a service that provides a capability to transmit and receive data from all or 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 to explicitly say as metro p services would be and the definition of a broadband internet access service is to get those services which we had which petitioners your engagement 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 of substantially all endpoints then they will be dropped out of the definition of broadband and acts of service the rules going to plight of them so what we're talking about a 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 straight supporting being in the business of transporting people to all or substantial impact points of the internet is  expression and the fact is the commission's rules which restrict the ability to block and other things are going at their transportation these broadband providers transportation function so the threshold issue which the commission said they are conduits as and conduits to of other parties express and conduct web web content and they are not themselves in so far as they are engaged in this business broadband internet access service being expressive with that you don't want to go to 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 second commission second point because of course even if you the court thinks there's some expressive companies and gauging in the provision of broadband internet access service and so it has nothing to do with a 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 a good action speech but to go to the intermediate scrutiny qu e at a minimum there are at least three compelling cover substantial we need to show interest or there is the interest and in fair competition in this area there is an interest in the widest possible diversity of sources that you're interested that turner court recognizes and there is also the interest in keeping the internet open and the deployment of broadband which congress recognized seven or six of those were rice and 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 i'm sure there are many in the audience know exactly what you're referring to on the stand and access to you tube oh i'm sorry that the there are obviously important competitive concerns about the way these services 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 are made are not made because of its actual expressive decision on the part of the distributor and and the commercial arrangements to say well look will will vary will promote a particular type of of of content because for example were displayed more doesn't itself trigger if i don't understand 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 this is if some internet access provider wants just fashion refashion their business to be more like a cable company and 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 were selecting the programming they made 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 is not for the question  discrimination there wouldn't be any prioritization you would need a reasonable network management exception to the rules if broadband providers had no discretion or control over the content on their networks when you go back to turn turner said the conduit function actually described cable a conduit that is protected speech because in the words of the four dissenters selecting which speech to transmit is no less communication and creating the speech in the first place what the commission is concerned about is that broadband providers hundred six act was a complete revisitation of the one nine hundred thirty four communications act congress went through every section every title even got down to the point of individual regulations that the f c c had adopted in the proceeding sixty  point yes sixty years so you know here we are twenty years later and we're just having a debate and the statutes almost never mentioned and my clients were people who were supposed to be the beneficiaries of very specific provisions included in that congress in one thousand nine hundred six you hear a lot about how they protected the internet they protected us 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 carriage was the basic monitor under which the communications would be offered in this country and they added titus the second chapter opening markets the competition what was that focused on it 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 it a base was a key focus of the statute and they provided very specific rules for how to do that so they said telecommunications kit is it 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 it doesn't actually doesn't still leave open the question of what's the telecommunications  your honor what i would say is look carefully at the depth of the f c c is definition of broadband internet access services the capability to transmit data to subsea chely all internet end point how is that any different from the statutory definition of telecommunications which says the capability for a user to transmit information to your monkey 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 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 broadband internet access the definition of broadband internet access service is solely the trim the capability to transmit that information between two substantial internet endpoints 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 we're only talking about transmission and that's the point that my clients are so focused back in the back in the historic times when you want to l o l and then you click through to the web that that click through didn't involve any information processing you're on to brings a very good point and that goes back to this discussion of what was published which never 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 ponderous was debating the one thousand nine hundred six x they knew about the inner they had a whole can title and communications decency act for title five the focus 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 does only protect you if you're a common carrier carrying that speech because you don't control the street so the same thing with  personal service in one thousand nine hundred three when congress the commercial service they were focused on personal communications 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 they tended the commission to follow and literally since basically the early two thousand they've been doing everything they can to get out of it he 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 oh slips made a mistake  point is they granted certain rights that were supposed to promote competition to help protect consumers the commission now says oh we don't need to worry about that detail congressional scheme for promoting competition purcel being 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 latest policy hasn't produced the results they predicted bade me did that it paragraph three thirty of you were if they could not reconcile their predictions with the actual facts they've gone back now it's a 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 are 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 what's the bigger picture here and that's the problem they can't square their arguments with the actual statutory text of your argument was that the caution that a standard for a plank forbear you could prepare what we said is the statute asked you to look you have to look in the context of the statute we're talking about one all exchange carriers they basically said we can just prepare for all that will change gears across the country without ever looking at the market conditions and our point argue is an applicable here i would run for the simple reason that you are 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 like 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 cross the board into terming waiver for  what i had a lot of 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 they didn't try to say oh those regulations don't apply to me but the point is you're dealing the only issue is 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 initiative apply their own regs which require them if you can look at section forty seven see if for one point five four they should have gone through that s found my first point is i don't disagree that mobile or having fixed broadband internet access service or title two services so that it's bad but i clear that we agree with full service network it's the path by which no it's not like the tailor when you're getting here's an important point about that there took a 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 an it is an unqualified and 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 to account and i think the gist of the full service network complaint resides in the commission's decision to for the act 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 two a one  zero two and say we don't need that specific protections of two fifty one two 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 that remains to be seen and it doesn't mean that the two have to overlap precisely because after all as earthling says and other decisions include us telecom decision this court say you can take the section ten specifically enjoins that section seven of six specifically enjoys 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  forbearing from two fifty one into pretty two so it doesn't mean that the commission is exactly the same position after forbearing from two fifty one to fifty two but it would be those provisions were in place there question before this court is whether it was sufficient that the commission what title to produce it could reasonably forbear from and nonetheless maintain the open internet protections that i thought were crucial in this case if the court has no further questions  one to do two fifty one that's exactly why congress added it text section two fifty one delves deeply into local and if you look at prior supreme court cases they've said that you cannot require interconnection you had a case here in this court before and said you can't use a one to do interconnection so yes he's 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 all these arguments heard all these things about you should exempt these people and they came up with a very specific regime the f c c to just be able to help what we've decided is more important to do broadband appointment which oh by the way was not included in the statute it was left as a freestanding provisional law to which this work should have signed some importance it was not included by congress again at the end of day should go back to what congress did and what congress actually said and they had us there very specific regime that the f c c should not be able so easily from