That standard is particularly deferential in matters such as this, which implicate competing policy choices, technical expertise, and predictive market judgments. See EarthLink, Inc. v. FCC, 462 F.3d 1, 12 (D.C. Cir. 2006); see also Time Warner Telecom, Inc. v. FCC, 507 F.3d 205, 221 (3d Cir. 2007). The FCC's forbearance decision in this case readily satisfies the applicable arbitrary and capricious standard of review.
The Communications Act defines "common carrier" as "any person engaged as a common carrier for hire, in interstate or foreign communication by wire" and imposed upon local telephone companies certain common carrier obligations. 47 U.S.C. ยง 153(10); Time Warner Telecom, Inc. v. F.C.C., 507 F.3d 205, 210 (3d Cir. 2007). "The primary sine qua non of common carrier status is a quasi-public character, which arises out of the undertaking to carry for all people indifferently."
Pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), I must "defer to an agency's reasonable interpretation of any ambiguities in a statute which it administers." Time Warner Telecom, Inc. v. Fed. Commc'ns Comm'n, 507 F.3d 205, 214 (3d Cir. 2007). The FCC has recognized that communications through commercial mobile radio service providers involve different technology and determined that MTAs "serve[] as the most appropriate definition for local service area for CMRS traffic."
Accordingly, we do not agree that past conflicting FCC rulings render its statutory classification in this order arbitrary and capricious.Time Warner Telecom, Inc. v. F.C.C., 507 F.3d 205, 219 (3d Cir. 2007). Thus, in Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994), the Supreme Court found that the Secretary's statutory interpretation was still entitled to deference even though a fiscal intermediary had taken actions contrary to the Secretary's present interpretation:
Other circuits have done the same. See Time Warner Telecom, Inc. v. FCC, 507 F.3d 205, 208 n. 2 (3d Cir. 2007) (review of an FCC Report and Order that substantially limited federal regulation of highspeed internet access over telephone lines); GTE South, Inc. v. Morrison, 199 F.3d 733, 742-43 (4th Cir. 1999) (holding that a party could not use an appeal from a district court to circumvent the Hobbs Act's requirement that a challenge to FCC rules promulgated in a Report and Order is subject only to direct review in a court of appeals upon petition); Alenco Commc'ns, Inc. v. FCC, 201 F.3d 608, 614 (5th Cir. 2000) (holding that the court had jurisdiction pursuant to the Hobbs Act to review whether two FCC Report and Orders were consistent with the Telecommunications Act of 1996); Illinois Bell Tel. Co. v. FCC, 740 F.2d 465, 467 (7th Cir. 1984) (commenting that ยง 2342 "vests the courts of appeals with exclusive jurisdiction to review certain orders issued by the [FCC] . . . including orders promulgating rules" and citing Columbia Broadcasting, 316 U.S. 407, 62 S.Ct. 1194); Iowa Utils. Bd. v. FCC,
Broadband internet access service is an "information service," not a "telecommunications service" under that statute. See Time Warner Telecom, Inc. v. Federal Communications Commission, 507 F.3d 205 (3d Cir. 2007) (upholding FCC's construction of the statute in "Appropriate Framework for Broadband Access to the Internet over Wireline Facilities," 20 F.C.C. Rcd. 14853 (2005)); National Cable Telecommunications Ass'n v. Brand X Internet Services, ___ U.S. ___, 125 S.Ct. 2688 (2005) (upholding FCC's construction of statute in "In the Matter of Federal-State Joint Board on Universal Service, 13 F.C.C. Rcd. 11501, 11536-40 (1998)). Even if Plaintiffs are telecommunications carriers, the email addresses alone do not fall within the definition of "consumer proprietary network information," which receives the highest level of protection under the Act.