U.S. Telecom Ass'n v. Fed. Commc'ns Comm'n

825 F.3d 674

United States Telecom Association, et al., Petitioners

v.Federal Communications Commission and United States of America, Respondents

Independent Telephone & Telecommunications Alliance, et al., Intervenors

No. 15-1063

C/w 15-1078

C/w 15-1086

C/w 15-1090

C/w 15-1091

C/w 15-1092

C/w 15-1095

C/w 15-1099

C/w 15-1117

C/w 15-1128

C/w 15-1151

C/w 15-1164

United States Court of Appeals, District of Columbia Circuit.

Argued December 4, 2015

Decided June 14, 2016

Peter D. Keisler argued the cause for petitioners United States Telecom Association, et al. With him on the joint briefs were Michael K. Kellogg, Scott H. Angstreich, Miguel A. Estrada, Theodore B. Olson, Jonathan C. Bond, Stephen E. Coran, S. Jenell Trigg, Jeffrey A. Lamken, Washington, DC, David H. Solomon, Russell P. Hanser, Rick C. Chessen, Neal M. Goldberg, Chicago, IL, Michael S. Schooler, Matthew A. Brill, Matthew T. Murchison, Jonathan Y. Ellis, Helgi C. Walker, Michael R. Huston, Kathleen M. Sullivan, James P. Young, C. Frederick Beckner III, Washington, DC, David L. Lawson, Gary L. Phillips, Gadsden, AL, and Christopher M. Heimann. Dennis Corbett, Washington, DC, and Kellam M. Conover entered appearances.

Brett A. Shumate argued the cause for petitioners Alamo Broadband Inc. and Daniel Berninger. With him on the briefs were Andrew G. McBride, Eve Klindera Reed, Richard E. Wiley, and Bennett L. Ross, Washington, DC.

Earl W. Comstock argued the cause for petitioners Full Service Network, et al. With him on the briefs were Robert J. Gastner and Michael A. Graziano, Washington, DC.

Bryan N. Tramont and Craig E. Gilmore, Washington, DC, were on the briefs for amicus curiae Mobile Future in support of petitioners CTIA-The Wireless Association and AT&T Inc.

Bryan N. Tramont, was on the brief for amicus curiae Telecommunications Industry Association in support of petitioners. Russell P. Hanser, Washington, DC, entered an appearance.

William S. Consovoy, Thomas R. McCarthy and J. Michael Connolly, Arlington, VA, were on the brief for amicus curiae Center for Boundless Innovation in support of petitioners United States Telecom Association, National Cable & Telecommunications Association, CTIA-The Wireless Association, American Cable Association, Wireless Internet Service Providers Association, AT&T Inc., CenturyLink, Alamo Broadband Inc., and Daniel Berninger.

Thomas R. McCarthy, William S. Consovoy, and J. Michael Connolly, Arlington, VA, were on the brief for amici curiae Members of Congress in support of petitioners United States Telecom Association, National Cable & Telecommunications Association, CTIA-The Wireless Association, American Cable Association, Wireless Internet Service Providers Association, AT&T Inc., CenturyLink, Alamo Broadband Inc., and Daniel Berninger.

R. Benjamin Sperry was on the brief for amici curiae International Center for Law & Economics and Administrative Law Scholars in support of petitioners United States Telecom Association, National Cable & Telecommunications Association, CTIA–The Wireless Association, American Cable Association, Wireless Internet Service Providers Association, AT&T Inc., CenturyLink, Alamo Broadband Inc., and Daniel Berninger.

David A. Balto, Washington, DC, was on the brief for amicus curiae Richard Bennett in support of petitioners United States Telecom Association, National Cable & Telecommunications Association, CTIA-The Wireless Association, AT&T Inc., American Cable Association, CenturyLink, Wireless Internet Service Providers Association, Alamo Broadband Inc., and Daniel Berninger.

David A. Balto, Washington, DC, was on the brief for amici curiae Georgetown Center for Business and Public Policy and Thirteen Prominent Economists and Scholars in support of petitioners United States Telecom Association, National Cable & Telecommunications Association, CTIA-The Wireless Association, AT&T Inc., American Cable Association, CenturyLink, Wireless Internet Service Providers Association, Alamo Broadband Inc., and Daniel Berninger.

John P. Elwood, Kate Comerford Todd, and Steven P. Lehotsky, Washington, DC, were on the brief for amici curiae The National Association of Manufacturers, et al. in support of petitioners.

Christopher S. Yoo was on the brief for amicus curiae Christopher S. Yoo in support of petitioners.

Cory L. Andrews was on the brief for amici curiae Former FCC Commissioner Harold Furchtgott-Roth and Washington Legal Foundation in support of petitioners. Richard A. Samp entered an appearance.

Hans Bader, Sam Kazman, Washington, DC, and Russell D. Lukas, McLean, VA, were on the brief for amicus curiae Competitive Enterprise Institute in support of petitioners.

Kim M. Keenan and David Honig were on the brief for amicus curiae Multicultural Media, Telecom and Internet Council in support of petitioners.

Lawrence J. Spiwak was on the brief for amicus curiae Phoenix Center for Advanced Legal and Economic Public Policy Studies in support of petitioners.

William J. Kirsch was on the briefs for amicus curiae William J. Kirsch in support of petitioners.

C. Boyden Gray, Washington, DC, Adam J. White, Winder, GA, and Adam R.F. Gustafson were on the briefs for intervenors TechFreedom, et al. in support of United States Telecom Association, National Cable & Telecommunications Association, CTIA-The Wireless Association, American Cable Association, Wireless Internet Service Providers Association, AT&T Inc., CenturyLink, Alamo Broadband Inc., and Daniel Berninger. Bradley A. Benbrook, Sacramento, CA, entered an appearance.

Jonathan B. Sallet, General Counsel, Federal Communications Commission, and Jacob M. Lewis, Associate General Counsel, argued the causes for respondents. With them on the brief were William J. Baer, Assistant Attorney General, U.S. Department of Justice, David I. Gelfand, Deputy Assistant Attorney General, Kristen C. Limarzi, Robert J. Wiggers, Nickolai G. Levin, Attorneys, David M. Gossett, Deputy General Counsel, Federal Communications Commission, James M. Carr, Matthew J. Dunne, and Scott M. Noveck, Counsel. Richard K. Welch, Counsel, Federal Communications Commission, entered an appearance.

Kevin Russell and Pantelis Michalopoulos, Washington, DC, argued the cause for intervenors, Cogent Communications, Inc., et al. in support of respondents. With them on the joint brief were Markham C. Erickson, Stephanie A. Roy, Andrew W. Guhr, Robert M. Cooper, Scott E. Gant, Hershel A. Wancjer, Christopher J. Wright, Scott Blake Harris, Russell M. Blau, Joshua M. Bobeck, Washington, DC, Sarah J. Morris, Kevin S. Bankston, San Francisco, CA, Seth D. Greenstein, Robert S. Schwartz, Marvin Ammori, Michael A. Cheah, Deepak Gupta, Erik Stallman, Matthew F. Wood, James Bradford Ramsay, Jennifer Murphy, Harold Jay Feld, Washington, DC, David Bergmann, and Colleen L. Boothby. Hamish Hume and Patrick J. Whittle, Washington, DC, entered appearances.

Michael K. Kellogg, Scott H. Angstreich, Miguel A. Estrada, Theodore B. Olson, Jonathan C. Bond, Stephen E. Coran, S. Jenell Trigg, Jeffrey A. Lamken, Matthew A. Brill, Matthew T. Murchison, Jonathan Y. Ellis, Helgi C. Walker, and Michael R. Huston, Washington, DC, were on the joint brief for intervenors AT&T Inc., et al. in support of respondents in case no. 15-1151.

Christopher Jon Sprigman was on the brief for amici curiae Members of Congress in support of respondents.

Gregory A. Beck, North Canton, OH, was on the brief for First Amendment Scholars as amici curiae in support of respondents.

Michael J. Burstein was on the brief for Professors of Administrative Law as amici curiae in support of respondents.

Andrew Jay Schwartzman was on the brief for amicus curiae Tim Wu in support of respondents.

Andrew Jay Schwartzman, Washington, DC, was on the brief for amicus curiae Open Internet Civil Rights Coalition in support of respondents.

Joseph C. Gratz and Alexandra H. Moss, San Francisco, CA, were on the brief for amici curiae Automattic Inc., et al. in support of respondents.

Markham C. Erickson and Andrew W. Guhr, Washington, DC, were on the brief for amicus curiae Internet Association in support of respondents.

J. Carl Cecere and David T. Goldberg were on the brief for amici curiae Reed Hundt, et al. in support of respondents.

Anthony P. Schoenberg, San Francisco, CA, and Deepak Gupta, Washington, DC, were on the brief for amici curiae Engine Advocacy, et al. in support of respondents.

Anthony R. Segall, Pasadena, CA, was on the brief for amici curiae Writers Guild of America, et al. in support of respondents.

Allen Hammond, Jonesboro, GA, was on the brief for amici curiae The Broadband Institute of California and The Media Alliance in support of respondents.

Corynne McSherry and Arthur B. Spitzer, Washington, DC, were on the brief for amici curiae Electronic Frontier Foundation, et al. in support of respondents.

Eric G. Null was on the brief for amicus curiae Consumer Union of the U.S., Inc. in support of respondents.

Alexandra Sternburg and Henry Goldberg, Washington, DC, were on the brief for amici curiae Computer & Communications Industry and Mozilla in support of respondents.

Krista L. Cox was on the brief for amici curiae American Library Association, et al. in support of respondents.

Phillip R. Malone, Cambridge, MA, and Jeffrey T. Pearlman were on the brief for amici curiae Sascha Meinrath, Zephyr Teachout and 45,707 Users of the Internet in support of respondents.

Before: Tatel and Srinivasan, Circuit Judges, and William s, Senior Circuit Judge.

Tatel and Srinivasan, Circuit Judges:

For the third time in seven years, we confront an effort by the Federal Communications Commission to compel internet openness—commonly known as net neutrality—the principle that broadband providers must treat all internet traffic the same regardless of source. In our first decision, Comcast Corp. v. FCC , 600 F.3d 642 (D.C. Cir. 2010), we held that the Commission had failed to cite any statutory authority that would justify its order compelling a broadband provider to adhere to certain open internet practices. In...