Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
No. 18-1051
MOZILLA CORPORATION,
PETITIONER
v.
TABLE OF CONTENTS
Id. § 153(53).
As to the first step, the Court observed that “[a] user cannot
reach a third party’s Web site without DNS,” Brand X, 545
U.S. at 999, which “among other things, matches the Web page
addresses that end users type into their browsers (or ‘click’ on)
with the Internet Protocol (IP) addresses of the servers
containing the Web pages the users wish to access,” id. at 987.
It therefore saw it as “at least reasonable” to treat DNS itself
“as a ‘capability for acquiring * * * retrieving, utilizing, or
making available’ Web site addresses and therefore part of the
information service cable companies provide.” Id. at 999
(quoting 47 U.S.C. § 153(24)); see also id. at n.3 (rebutting
dissent’s claim that “DNS does not count as use of the
18
information-processing capabilities of Internet service”). The
Court applied a cognate analysis to caching, which “facilitates
access to third-party Web pages by offering consumers the
ability to store, or ‘cache’ popular content on local computer
servers,” id. at 999, “obviat[ing] the need for the end user to
download anew information from third-party Web sites each
time the consumer attempts to access them,” id. at 999–1000.
Thus the Court found “reasonable” the FCC’s position that
“subscribers can reach third-party Web sites via ‘the World
Wide Web, and browse their contents, [only] because their
service provider offers the capability for * * * acquiring,
[storing] * * * retrieving [and] utilizing * * * information.’”
Id. at 1000 (alterations in original) (some internal quotation
marks omitted) (quoting In re Federal-State Joint Bd. on
Universal Serv., 13 FCC Rcd. 11501, 11537–11538 ¶ 76
(1998) (“Stevens Report”)).
1
Note that the definition of “enhanced services” is restricted to
services “offered over common carrier transmission.” Second
Computer Inquiry, 77 F.C.C.2d at 498. For this reason, among
others, at least one scholar has argued that caution is warranted in
34
In offering a basic transmission service * * * a carrier
essentially offers a pure transmission capability over
a communications path that is virtually transparent in
terms of its interaction with customer supplied
information.
4. Functional Integration
2. Reliance on Competition
C. Public Safety
2
Most of Santa Clara County’s comments appear to have been
made outside the comment window. However, the Commission has
not suggested that those comments are untimely. Therefore, it has
itself forfeited any forfeiture challenge to Santa Clara County’s
arguments. See National Corn Growers Ass’n v. EPA, 613 F.3d 266,
275 (D.C. Cir. 2010) (considering letter where EPA did not suggest
until oral argument that it was untimely); BNSF Ry. Co. v. Surface
Transp. Bd., 604 F.3d 602, 611 (D.C. Cir. 2010) (“[A] forfeiture can
be forfeited by failing on appeal to argue an argument was
forfeited.”).
98
was issued, we will not consider the public statements made by
Verizon in response to that controversy. Under the
Administrative Procedure Act as elsewhere, what is good for
the goose is good for the gander.
D. Reliance Interests
E. Pole Attachments
F. Lifeline Program
G. Cost-Benefit Analysis
I. Procedural Challenges
VI. Preemption
1. Impossibility Exception
3
This was before the Cable Communications Policy Act of
1984, Pub. L. No. 98–549, 98 Stat. 2279, established a national
policy governing cable television.
130
2. Federal Policy of Nonregulation
3. Case Precedent
C. Conflict Preemption
The Supreme Court has made very clear that Chevron does
not have that much muscle. Congress, the Court has explained,
“does not alter the fundamental details of a regulatory scheme,”
let alone step so heavily on the balance of power between the
federal government and the States, “in vague terms or ancillary
provisions—it does not, one might say, hide elephants in
mouseholes.” Whitman v. American Trucking Ass’ns, 531 U.S.
457, 468 (2001).
4
See Williamson v. Mazda Motor of America, Inc., 562 U.S.
323, 330 (2011) (conflict preemption wipes out “state law that stands
as an obstacle to the accomplishment and execution of the [federal
law’s] full purposes and objectives”) (internal quotation marks
omitted).
144
Fourth, the dissenting opinion’s reliance on the Eighth
Circuit’s opinion in Minnesota Public Utilities Commission v.
FCC (“Minnesota PUC”), 483 F.3d 570 (8th Cir. 2007), is
misplaced. That opinion enumerated the discrete questions it
purported to answer—none of which was whether Congress
delegated to the Commission the authority to preempt. Id. at
577. The Eighth Circuit decided only whether the
Commission’s order was “arbitrary and capricious because it
* * * determined it was impractical or impossible to separate
the intrastate components of VoIP service from its interstate
components,” or because it “determined state regulation of
VoIP service conflicts with federal regulatory policies.” Id.
This set of inquiries does not resolve the purely legal question
of the source of the Commission’s asserted preemption
authority here.
*****
VII. Conclusion
So ordered.
MILLETT, Circuit Judge, concurring:
But that was then, and this is now. Brand X was decided
almost fifteen years ago, during the bygone era of iPods, AOL,
and Razr flip phones. The market for broadband access has
changed dramatically in the interim. Brand X faced a “walled
garden” reality, in which broadband was valued not merely as
a means to access third-party content, but also for its bundling
of then-nascent information services like private email, user
2
newsgroups, and personal webpage development. Today, none
of those add-ons occupy the significance that they used to.
Now it is impossible “to deny [the] dominance of [third-party
content] in the broadband experience.” USTA, 825 F.3d at 698.
“[C]onsumers use broadband principally to access third-party
content, not [ISP-provided] email and other add-on
applications.” Id. (emphasis added). In a nutshell, a speedy
pathway to content is what consumers value. It is what
broadband providers advertise and compete over. And so,
under any natural reading of the statute, the technological
mechanism for accessing third-party content is what broadband
providers “offer.”
II
1
T.S. Eliot, Burnt Norton, in FOUR QUARTETS 1, 4 (1943).
7
Commission today makes no effort to rely on those ancillary
services. 2018 Order ¶ 33 n.99.
2
To be clear, I agree fully with the majority that Brand X did
not assess the “relative importance” of the data-processing and
transmission components of cable modem. Majority Op. 42.
8
decided. And they have done so in ways that strongly favor
classifying broadband as a telecommunications service, as
Justice Scalia had originally advocated. Brand X, 545 U.S. at
1012–1014 (Scalia, J., dissenting).
III
*****
Under the first view, the feds step aside and leave the
matter to the states (or, more realistically, to the most ardently
regulatory state). Under the second, federal law adopts a
nationwide regime governed primarily by market forces.
power to preempt state law.”); id. at 128 (“In other words, the
impossibility exception presupposes the existence of statutory
authority to regulate; it does not serve as a substitute for that
necessary delegation of power from Congress.”); id. at 132
(“[P]reemption authority depends on the Commission
identifying an applicable statutory delegation of regulatory
authority . . . .”); id. at 134 (concluding that courts cannot
evaluate if Congress provided preemption authority “if there is
no legislative grant of authority against which to evaluate the
preemptive rule, and certainly not when, as here, Congress
expressly withheld regulatory authority over the matter”); id. at
138 (“[T]he dissenting opinion fails to explain how the
Commission’s interpretive authority under Chevron to classify
broadband as a Title I information service could do away with
the sine qua non for agency preemption: a congressional
delegation of authority either to preempt or to regulate”). But
reiteration is not proof—no matter how self-assured. The claim
is wrong in its broad form and is inapplicable to the
circumstances here.
The majority says the agency did not adequately flesh out
these arguments in the 2018 Order or in its briefing here.
Flattered as I am at the thought that I deserve credit for all or
most of the thinking in this opinion, it isn’t so.
* * *
* * *