Full opinion text
Opinion concurring in part and dissenting in part filed by Senior Circuit Judge WILLIAMS. 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 response, relying on section 706 of the Telecommunications Act of 1996, the Commission issued an order imposing transparency, anti-blocking, and anti-discrimination requirements on broadband providers. In our second opinion, Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), we held that section 706 gives the Commission authority to enact open internet rules. We nonetheless vacated the anti-blocking and anti-discrimination provisions because the Commission had chosen to classify broadband service as an information service under the Communications Act of 1934, which expressly prohibits the Commission from applying common carrier regulations to such services. The Commission then promulgated the order at issue in this case — the 2015 Open Internet Order — in which it reclassified broadband service as a telecommunications service, subject to common carrier regulation under Title II of the Communications Act. The Commission also exercised its statutory authority to forbear from applying many of Title II’s provisions to broadband service and promulgated five rules to promote internet openness. Three separate groups of petitioners, consisting primarily of broadband providers and their associations, challenge the Order, arguing that the Commission lacks statutory authority to reclassify broadband as a telecommunications service, that even if the Commission has such authority its decision was arbitrary and capricious, that the Commission impermissibly classified mobile broadband as a commercial mobile service, that the Commission impermissibly forbore from certain provisions of Title II, and that some of the rules violate the First Amendment. For the reasons set forth in this opinion, we deny the petitions for review. I. Called “one of the most significant technological advancements of the 20th century,” Senate Committee on Commerce, Science and Transportation, Report on Online Personal Privacy Act, Sen. Rep. No. 107-240, at 7 (2002), the internet has four major participants: end users, broadband providers, backbone networks, and edge providers. Most end users connect to the internet through a broadband provider, which delivers high-speed internet access using technologies such as cable modem service, digital subscriber line (DSL) service, and fiber optics. See In re Protecting and Promoting the Open Internet (“2015 Open Internet Order” or “the Order”), 30 FCC Red. 5601, 5682-83 ¶ 188, 5751 ¶ 346. Broadband providers interconnect with backbone networks — “long-haul fiber-optic links and high-speed routers capable of transmitting vast amounts of data.” Verizon, 740 F.3d at 628 (citing In re Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control, 20 FCC Red. 18,433, 18,493 ¶ 110 (2005)). Edge providers, like Netflix, Google, and Amazon, “provide content, services, and applications over the Internet.” Id. at 629 (citing In re Preserving the Open Internet (“2010 Open Internet Order”), 25 FCC Red. 17,905, 17,910 ¶ 13 (2010)). To bring this all together, when an end user wishes to check last night’s baseball scores on ESPN.com, his computer sends a signal to his broadband provider, which in turn transmits it across the backbone to ESPN’s broadband provider, which transmits the signal to ESPN’s computer. Having received the signal, ESPN’s computer breaks the scores into packets of information which travel back across ESPN’s broadband provider network to the backbone and then across the end user’s broadband provider network to the end user, who will then know that the Nats won 5 to 3. In recent years, some edge providers, such as Netflix and Google, have begun connecting directly to broadband providers’ networks, thus avoiding the need to interconnect with the backbone, 2015 Open Internet Order, 30 FCC Red. at 5610 ¶ 30, and some broadband providers, such as Comcast and AT&T, have begun developing their own backbone networks, id. at 5688 ¶ 198. Proponents of internet openness “worry about the relationship between broadband providers and edge providers.” Verizon, 740 F.3d at 629. “They fear that broadband providers might prevent their end-user subscribers from accessing certain edge providers altogether, or might degrade the quality of their end-user subscribers’ access to certain edge providers, either as a means of favoring their own competing content or services or to enable them to collect fees from certain edge providers.” Id. Thus, for example, “a broadband provider like Comcast might limit its end-user subscribers’ ability to access the New York Times website if it wanted to spike traffic to its own news website, or it might degrade the quality of the connection to a search website like Bing if a competitor like Google paid for prioritized access.” Id. Understanding the issues raised by the Commission’s current attempt to achieve internet openness requires familiarity with its past efforts to do so, as well as with the history of broadband regulation more generally. A. Much of the structure of the current regulatory scheme derives from rules the Commission established in its 1980 Computer II Order. The Computer II rules distinguished between “basic services” and “enhanced services.” Basic services, such as telephone service, offered “pure transmission capability over a communications path that is virtually transparent in terms of its interaction with customer supplied information.” In re Amendment of Section 64.702 of the Commission’s Rules and Regulations (“Computer II”), 77 F.C.C. 2d 384, 420 ¶ 96 (1980). Enhanced services consisted of “any offering over the telecommunications network which is more than a basic transmission service,” for example, one in which “computer processing applications are used to act on the content, code, protocol, and other aspects of the subscriber’s information,” such as voicemail. Id. at 420 ¶ 97. The rules subjected basic services, but not enhanced services, to common carrier treatment under Title II of the Communications Act. Id. at 387 ¶¶ 5-7. Among other things, Title II requires that carriers “furnish ... communication service upon reasonable request,” 47 U.S.C. § 201(a), engage in no “unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services,” id. § 202(a), and charge “just and reasonable” rates, id. § 201(b). The Computer II rules also recognized a third category of services, “adjunct-to-basic” services: enhanced services, such as “speed dialing, call forwarding, [and] computer-provided directory assistance,” that facilitated use of a basic service. See In re Implementation of the Non-Accounting Safeguards (“Non-Accounting Safeguards Order”), 11 FCC Red. 21,905, 21,958 ¶ 107 n. 245 (1996). Although adjunct-to-basic services fell within the definition of enhanced services, the Commission nonetheless treated them as basic because of their role in facilitating basic services. See Computer II, 77 F.C.C. 2d at 421 ¶ 98 (explaining that the Commission would not treat as an enhanced service those services used to “facilitate [consumers’] use of traditional telephone services”). Fifteen years later, Congress, borrowing heavily from the Computer II framework, enacted the Telecommunications Act of 1996, which amended the Communications Act. The Telecommunications Act subjects a “telecommunications service,” the successor to basic service, to common carrier regulation under Title II. 47 U.S.C. § 153(51) (“A telecommunications carrier shall be treated as a common carrier under [the Communications Act] only to the extent that it is engaged in providing telecommunications services.”). By contrast, an “information service,” the successor to an enhanced service, is not subject to Title II. The Telecommunications Act defines a “telecommunications service” as “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” Id. § 153(53). It defines telecommunications as “the transmission, between or among points specified by the user, of information of the user’s choosing without change in the form or content of the information as sent and received.” Id. § 153(50). An information service is an “offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” Id. § 153(24). The appropriate regulatory treatment therefore turns on what services a provider offers to the public: if it offers telecommunications, that service is subject to Title II regulation. Tracking the Commission’s approach to adjunct-to-basic services, Congress also effectively created a third category for information services that facilitate use of a telecommunications service. The “telecommunications management exception” exempts from information service treatment — and thus treats as a telecommunications service — “any use [of an information service] for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” Id. The Commission first applied this statutory framework to broadband in 1998 when it classified a portion of DSL service — broadband internet service furnished over telephone lines — as a telecommunications service. See In re Deployment of Wireline Services Offering Advanced Telecommunications Capability (“Advanced Services Order”), 13 FCC Red. 24,012, 24,-014 ¶ 3, 24,029-30 ¶¶ 35-36 (1998). According to the Commission, the transmission component of DSL — the phone lines that carried the information — was a telecommunications service. Id. at 24,029-30 ¶¶ 35-36. The Commission classified the internet access delivered via the phone lines, however, as a separate offering of an information service. Id. at 24,030 ¶ 36. DSL providers that supplied the phone lines and the internet access therefore offered both a telecommunications service and an information service. Four years later, the Commission took a different approach when it classified cable modem service — broadband service provided over cable lines — as solely an information service. In re Inquiry Concerning High-Speed Access to the Internet over Cable and Other Facilities (“Cable Broadband Order”), 17 FCC Red. 4798, 4823 ¶¶ 39-40 (2002). In its 2002 Cable Broadband Order, the Commission acknowledged that when providing the information service component of broadband — which, according to the Commission, consisted of several distinct applications, including email and online newsgroups, id. at 4822-23 ¶ 38 — cable broadband providers transmit information and thus use telecommunications. In the Commission’s view, however, the transmission functioned as a component of a “single, integrated information service,” rather than as a standalone offering. Id. at 4823 ¶ 38. The Commission therefore classified them together as an information service. Id. at 4822-23 ¶¶ 38-40. The Supreme Court upheld the Commission’s classification of cable modem service in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 986, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). Applying the principles of statutory interpretation established in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Court explained that the key statutory term “offering” in the definition of “telecommunications service” is ambiguous. Brand X, 545 U.S. at 989, 125 S.Ct. 2688. What a company offers, the Court reasoned, can refer to either the “single, finished product” or the product’s individual components. Id. at 991, 125 S.Ct. 2688. According to the Court, resolving that question in the context of broadband service requires the Commission to determine whether the information service and the telecommunications components “are functionally integrated ... or functionally separate.” Id. That question “turns not on the language of [the Communications Act], but on the factual particulars of how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in the first instance.” Id. Examining the classification at Chevron’s second step — reasonableness—the Court deferred to the Commission’s finding that “the high-speed transmission used to provide [the information service] is a functionally integrated component of that service,” id. at 998, 125 S.Ct. 2688, and upheld the order, id. at 1003, 125 S.Ct. 2688. Three Justices dissented, arguing that cable broadband providers offered telecommunications in the form of the “physical connection” between their computers and end users’ computers. See id. at 1009, 125 S.Ct. 2688 (Scalia, J., dissenting). Following Brand X, the Commission classified other types of broadband service, such as DSL and mobile broadband service, as integrated offerings of information services without a standalone offering of telecommunications. See, e.g., In re Appropriate Regulatory Treatment for Broadband Access to the Internet over Wireless Networks (“2007 Wireless Order”), 22 FCC Red. 5901, 5901-02 ¶ 1 (2007) (mobile broadband); In re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities (“2005 Wireline Broadband Order”), 20 FCC Red. 14,853, 14,863-64 ¶ 14 (2005) (DSL). B. Although the Commission’s classification decisions spared broadband providers from Title II common carrier obligations, the Commission made clear that it would nonetheless seek to preserve principles of internet openness. In the 2005 Wireline Broadband Order, which classified DSL as an integrated information service, the Commission announced that should it “see evidence that providers of telecommunications for Internet access or IP-enabled services are violating these principles,” it would “not hesitate to take action to address that conduct.” 2005 Wireline Broadband Order, 20 FCC Red. at 14,904 ¶ 96. Simultaneously, the Commission issued a policy statement signaling its intention to “preserve and promote the open and interconnected nature of the public Internet.” In re Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC Red. 14,986, 14,988 ¶ 4 (2005). In 2007, the Commission found reason to act when Comcast customers accused the company of interfering with their ability to access certain applications. Comcast, 600 F.3d at 644. Because Comcast voluntarily adopted new practices to address the customers’ concerns, the Commission “simply ordered [Comcast] to make a set of disclosures describing the details of its new approach and the company’s progress toward implementing it.” Id. at 645. As authority for that order, the Commission cited its section 4(i) “ancillary jurisdiction.” 47 U.S.C. § 154(i) (“The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”); In re Formal Complaint of Free Press and Public Knowledge Against Com-cast Corp. for Secretly Degrading Peer-to-Peer Applications, 23 FCC Red. 13,028, 13,034-41 ¶¶ 14-22 (2008). In Comcast, we vacated that order because the Commission had failed to identify any grant of statutory authority to which the order was reasonably ancillary. 600 F.3d at 644. C. Following Comcast, the Commission issued a notice of inquiry, seeking comment on whether it should reclassify broadband as a telecommunications service. See In re Framework for Broadband Internet Service, 25 FCC Red. 7866, 7867 ¶ 2 (2010). Rather than reclassify broadband, however, the Commission adopted the 2010 Open Internet Order. See 25 FCC Red. 17,905. In that order, the Commission promulgated three rules: (1) a transparency rule, which required broadband providers to “disclose the network management practices, performance characteristics, and terms and conditions of their broadband services”; (2) an anti-blocking rule, which prohibited broadband providers from “blocking] lawful content, applications, services, or non-harmful devices”; and (3) an anti-discrimination rule, which established that broadband providers “may not unreasonably discriminate in transmitting lawful network traffic.” Id. at 17,906 ¶ 1. The transparency rule applied to both “fixed” broadband, the service a consumer uses on her laptop when she is at home, and “mobile” broadband, the service a consumer uses on her iPhone when she is riding the bus to work. Id. The anti-blocking rule applied in full only to fixed broadband, but the order prohibited mobile broadband providers from “bloekfing] lawful websites, or blocking] applications that compete with their voice or video telephony services.” Id. The anti-discrimination rule applied only to fixed broadband. Id. According to the Commission, mobile broadband warranted different treatment because, among other things, “the mobile ecosystem is experiencing very rapid innovation and change,” id. at 17,956 ¶ 94, and “most consumers have more choices for mobile broadband than for fixed,” id. at 17,957 ¶ 95. In support of its rules, the Commission relied primarily on section 706 of the Telecommunications Act, which requires that the Commission “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans,” 47 U.S.C. § 1302(a). 25 FCC Red. at 17,968-72 ¶¶ 117-23. In Verizon, we upheld the Commission’s conclusion that section 706 provides it authority to promulgate open internet rules. According to the Commission, such rules encourage broadband deployment because they “preserve and facilitate the ‘virtuous circle’ of innovation that has driven the explosive growth of the Internet.” Verizon, 740 F.3d at 628. Under the Commission’s “virtuous circle” theory, “Internet openness ... spurs investment and development by edge providers, which leads to increased end-user demand for broadband access, which leads to increased investment in broadband network infrastructure and technologies, which in turns leads to further innovation and development by edge providers.” Id. at 634. Reviewing the record, we concluded that the Commission’s “finding that Internet openness fosters ... edge-provider innovation ... was ... reasonable and grounded in substantial evidence” and that the Commission had “more than adequately supported and explained its conclusion that edge-provider innovation leads to the expansion and improvement of broadband infrastructure.” Id. at 644. We also determined that the Commission had “adequately supported and explained its conclusion that, absent rules such as those set forth in the [2010 Open Internet Order], broadband providers represented] a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.” Id. at 645. For example, the Commission noted that “broadband providers like AT & T and Time Warner have acknowledged that online video aggregators such as Netflix and Hulu compete directly with their own core video subscription service,” id. (internal quotation marks omitted), and that, even absent direct competition, “[b]roadband providers ... have powerful incentives to accept fees from edge providers, either in return for excluding their competitors or for granting them prioritized access to end users,” id. at 645-46. Importantly, moreover, the Commission found that “broadband providers have the technical ... ability to impose such restrictions,” noting that there was “little dispute that broadband providers have the technological ability to distinguish between and discriminate against certain types of Internet traffic.” Id. at 646. The Commission also “convincingly detailed how broadband providers’ [gatekeeper] position in the market gives them the economic power to restrict edge-provider traffic and charge for the services they furnish edge providers.” Id. Although the providers’ gatekeeper position would have brought them little benefit if end users could have easily switched providers, “we [saw] no basis for questioning the Commission’s conclusion that end users [were] unlikely to react in this fashion.” Id. The Commission “detailed ... thoroughly ... the costs of switching,” and found that “many end users may have no option to switch, or at least face very limited options.” Id. at 647. Finally, we explained that although some record evidence supported Verizon’s insistence that the order would have a detrimental effect on broadband deployment, other record evidence suggested the opposite. Id. at 649. The case was thus one where “ ‘the available data do[ ] not settle a regulatory issue and the agency must then exercise its judgment in moving from the facts and probabilities on the record to a policy conclusion.’” Id. (alteration in original) (quoting Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 52, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). The Commission, we concluded, had “offered ‘a rational connection between the facts found and the choice made.’ ” Id. (quoting State Farm, 463 U.S. at 52, 103 S.Ct. 2856). We nonetheless vacated the anti-blocking and anti-discrimination rules because they unlawfully subjected broadband providers to per se common carrier treatment. Id. at 655, 658-59. As we explained, the Communications Act provides that “[a] telecommunications carrier shall be treated as a common carrier ... only to the extent that it is engaged in providing telecommunications services.” Id. at 650 (quoting 47 U.S.C. § 153(51)). The Commission, however, had classified broadband not as a telecommunications service, but rather as an information service, exempt from common carrier regulation. Id. Because the anti-blocking and anti-discrimination rules required broadband providers to offer service indiscriminately — the common law test for a per se common carrier obligation — they ran afoul of the Communications Act. See id. at 651-52, 655, 658-59. We upheld the transparency rule, however, because it imposed no per se common carrier obligations on broadband providers. Id. at 659. D. A few months after our decision in Verizon, the Commission issued a notice of proposed rulemaking to “find the best approach to protecting and promoting Internet openness.” In re Protecting and Promoting the Open Internet (“NPRM”), 29 FCC Red. 5561, 5563 ¶ 4 (2014). After receiving nearly four million comments, the Commission promulgated the order at issue in this case, the 2015 Open Internet Order. 30 FCC Red. at 5624 ¶ 74. The Order consists of three components. First, the Commission reclassified both fixed and mobile “broadband Internet access service” as telecommunications services. Id. at 5743-44 ¶ 331. For purposes of the Order, the Commission defined “broadband Internet access service” as “a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service.” Id. at 5745-46 ¶ 336 (footnote omitted). Because the Commission concluded that the telecommunications service offered to end users necessarily includes the arrangements that broadband providers make with other networks to exchange traffic — commonly referred to as “interconnection arrangements” — the Commission determined that Title II would apply to those arrangements as well. Id. at 5686 ¶ 195. The Commission also reclassified mobile broadband service, which it had previously deemed a “private mobile service,” exempt from common carrier regulation, as a “commercial mobile service,” subject to such regulation. Id. at 5778 ¶ 388. In the Order’s second component, the Commission carried out its statutory mandate to forbear “from applying any regulation or any provision” of the Communications Act if it determines that the provision is unnecessary to ensure just and reasonable service or protect consumers and determines that forbearance is “consistent with the public interest.” 47 U.S.C. § 160(a). Specifically, the Commission forbore from applying certain Title II provisions to broadband service, including section 251’s mandatory unbundling requirements. 2015 Open Internet Order, 30 FCC Red. at 5804-05 ¶ 434, 5849-51 ¶ 513. In the third portion of the Order, the Commission promulgated five open internet rules, which it applied to both fixed and mobile broadband service. The first three of the Commission’s rules, which it called “bright-line rules,” ban blocking, throttling, and paid prioritization. Id. at 5647 ¶ 110. The anti-blocking and anti-throttling rules prohibit broadband providers from blocking “lawful content, applications, services, or non-harmful devices” or throttling — degrading or impairing — access to the same. Id. at 5648 ¶ 112, 5651 ¶ 119. The anti-paid-prioritization rule bars broadband providers from “favor[ing] some traffic over other traffic ... either (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entity.” Id. at 5653 ¶ 125. The fourth rule, known as the “General Conduct Rule,” prohibits broadband providers from “unreasonably interfering] with or unreasonably disadvantaging] (i) end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users.” Id. at 5660 ¶ 136. The Commission set forth a nonexhaustive list of factors to guide its application of the General Conduct Rule, which we discuss at greater length below. See id. at 5661-64 ¶¶ 138-45. Finally, the Commission adopted an enhanced transparency rule, which builds upon the transparency rule that it promulgated in its 2010 Open Internet Order and that we sustained in Verizon. Id. at 5669-82 ¶¶ 154-85. Several groups of petitioners now challenge the Order: US Telecom Association, an association of service providers, along with several other providers and associations; Full Service Network, a service provider, joined by other such providers; and Alamo Broadband Inc., a service provider, joined by an edge provider, Daniel Berninger. TechFreedom, a think tank devoted to technology issues, along with a service provider and several individual investors and entrepreneurs, has intervened on the side of petitioners US Telecom and Alamo. Cogent, a service provider, joined by several edge providers, users, and organizations, has intervened on the side of the Commission. In part II, we address petitioners’ arguments that the Commission has no statutory authority to reclassify broadband as a telecommunications service and that, even if it possesses such authority, it acted arbitrarily and capriciously. In part III, we address challenges to the Commission’s regulation of interconnection arrangements under Title II. In part IV, we consider arguments that the Commission lacks statutory authority to classify mobile broadband service as a “commercial mobile service” and that, in any event, its decision to do so was arbitrary and- capricious. In part V, we assess the contention that the Commission impermissibly forbore from certain provisions of Title II. In part VI, we consider challenges to the open internet rules. And finally, in part VII, we evaluate the claim that some of the open internet rules run afoul of the First Amendment. Before addressing these issues, we think it important to emphasize two fundamental principles governing our responsibility as a reviewing court. First, our “role in reviewing agency regulations ... is a limited one.” Ass’n of American Railroads v. Interstate Commerce Commission, 978 F.2d 737, 740 (D.C. Cir. 1992). Our job is to ensure that an agency has acted “within the limits of [Congress’s] delegation” of authority, Chevron, 467 U.S. at 865, 104 S.Ct. 2778, and that its action is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A). Critically, we do not “inquire as to whether the agency’s decision is wise as a policy matter; indeed, we are forbidden from substituting our judgment for that of the agency.” Ass’n of American Railroads, 978 F.2d at 740 (alteration and internal quotation marks omitted). Nor do we inquire whether “some or many economists would disapprove of the [agency’s] approach” because “we do not sit as a panel of referees on a professional economics journal, but as a panel of generalist judges obliged to defer to a reasonable judgment by an agency acting pursuant to congressionally delegated authority.” City of Los Angeles v. U.S. Department of Transportation, 165 F.3d 972, 978 (D.C. Cir. 1999). Second, we “sit to resolve only legal questions presented and argued by the parties.” In re Cheney, 334 F.3d 1096, 1108 (D.C. Cir. 2003), vacated and remanded on other grounds sub nom. Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004); see also, e.g., United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 61 n.2, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) (“We decline to consider this argument since it was not raised by either of the parties here or below.”). “It is not our duty” to consider “novel arguments a [party] could have made but did not.” United States v. Laureys, 653 F.3d 27, 32 (D.C. Cir. 2011). “The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983). Departing from this rule would “deprive us in substantial measure of that assistance of counsel which the system assumes — a deficiency that we can perhaps supply by other means, but not without altering the character of our institution.” Id. With these two critical principles in mind, we turn to the first issue in this case — the Commission’s reclassification of broadband as a “telecommunications service.” II. In the Open Internet Order, the Commission determined that broadband service satisfies the statutory definition of a telecommunications service: “the offering of telecommunications for a fee directly to the public.” 47 U.S.C. § 153(53). In accordance with Brand X, the Commission arrived at this conclusion by examining consumer perception of what broadband providers offer. 2015 Open Internet Order, 30 FCC Red. at 5750 ¶ 342. In Brand X, the Supreme Court held that it was “consistent with the statute’s terms” for the Commission to take into account “the end user’s perspective” in classifying a service as “information” or “telecommunications.” 545 U.S. at 993, 125 S.Ct. 2688. Specifically, the Court held that the Commission had reasonably concluded that a provider supplies a telecommunications service when it makes a “ ‘stand-alone’ offering of telecommunications, i.e., an offered service that, from the user’s perspective, transmits messages unadulterated by computer processing.” Id. at 989, 125 S.Ct. 2688. In the Order, the Commission concluded that consumers perceive broadband service both as a standalone offering and as providing telecommunications. See 2015 Open Internet Order, 30 FCC Red. at 5765 ¶ 365. These conclusions about consumer perception find extensive support in the record and together justify the Commission’s decision to reclassify broadband as a telecommunications service. With respect to its first conclusion — that consumers perceive broadband as a standalone offering — the Commission explained that broadband providers offer two separate types of services: “a broadband Internet access service,” id. at 5750 ¶ 341, which provides “the ability to transmit data to and from Internet endpoints,” id. at 5755 ¶ 350; and “ ‘add-on’ applications, content, and services that are generally information services,” id. at 5750 ¶ 341, such as email and cloud-based storage programs, id. at 5773 ¶ 376. It found that from the consumer’s perspective, “broadband Internet access service is today sufficiently independent of these information services that it is a separate offering.” Id. at 5757-58 ¶ 356. In support of its conclusion, the Commission pointed to record evidence demonstrating that consumers use broadband principally to access third-party content, not email and other add-on applications. “As more American households have gained access to broadband Internet access service,” the Commission explained, “the market for Internet-based services provided by parties other than broadband Internet access providers has flourished.” Id. at 5753 ¶ 347. Indeed, from 2003 to 2015, the number of websites increased from “approximately 36 million” to “an estimated 900 million.” Id. By one estimate, two edge providers, Netflix and YouTube, “account for 50 percent of peak Internet download traffic in North America.” Id. at 5754 ¶ 349. That consumers focus on transmission to the exclusion of add-on applications is hardly controversial. Even the most limited examination of contemporary broadband usage reveals that consumers rely on the service primarily to access third-party content. The “typical consumer” purchases broadband to use “third-party apps such as Facebook, Netflix, YouTube, Twitter, or MLB .tv, or ... to access any of thousands of websites.” Computer & Communications Industry Association Amicus Br. 7. As one amicus succinctly explains, consumers today “pay telecommunications providers for access to the Internet, and access is exactly what they get. For content, they turn to [the] creative efforts ... of others.” Auto-mattic Amicus Br. 1. Indeed, given the tremendous impact third-party internet content has had on our society, it would be hard to deny its dominance in the broadband experience. .Over the past two decades, this content has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie. The same assuredly cannot be said for broadband providers’ own add-on applications. The Commission found, moreover, that broadband consumers not only focus on the offering of transmission but often avoid using the broadband providers’ add-on services altogether, choosing instead “to use their high-speed Internet connections to take advantage of competing services offered by third parties.” 2015 Open Internet Order, 30 FCC Red. at 5753 ¶ 347. For instance, two third-party email services, Gmail and Yahoo! Mail, were “among the ten Internet sites most frequently visited during the week of January 17, 2015, with approximately 400 million and 350 million visits respectively.” Id. at 5753 ¶ 348. Some “even advise consumers specifically not to use a broadband provider-based email address[ ] because a consumer cannot take that email address with them if he or she switches providers.” Id. Amici Members of Congress in Support of Respondents provide many more examples of third-party content that consumers use in lieu of broadband provider content, examples that will be abundantly familiar to most internet users. “[M]any consumers,” they note, “have spurned the applications ... offered by their broadband Internet access service provider, in favor of services and applications offered by third' parties, such as ... news and related content on nytimes.com or washington-post.com or Google News; home pages on Microsoft’s MSN or Yahool’s ‘my.yahoo’; video content on Netflix or YouTube or Hulu; streaming music on Spotify or Pandora or Apple Music; and on-line shopping on Amazon.com or Target.com, as well as many others in each category.” Members of Congress for Resp’ts Amicus Br. 22. In support of its second conclusion — that from the user’s point of view, the standalone offering of broadband service provides telecommunications — the Commission explained that “[u]sers rely on broadband Internet access service to transmit ‘information- of the user’s choosing,’ ‘between or among points specified by the user,’ ” without changing the form or content of that information. 2015 Open Internet Order, 30 FCC Red. at 5761 ¶ 361 (quoting 47 U.S.C. § 153(50)); see also id. at 5762-63 ¶ 362. The Commission grounded that determination in record evidence that “broadband Internet access service is marketed today primarily as a conduit for the transmission of data across the Internet.” Id. at 5757 ¶ 354. Specifically, broadband providers focus their advertising on the speed of transmission. For example, the Commission quoted a Comcast ad offering “the consistently fast speeds you need, even during peak hours”; an RCN ad promising the ability “to upload and download in a flash”; and a Verizon ad claiming that “[wjhatever your life demands, there’s a Verizon FiOS plan with the perfect upload/download speed for you.” Id. at 5755 ¶ 351 (alteration in original) (internal quotation marks omitted). The Commission further observed that “fixed broadband providers use transmission speeds to classify tiers of service offerings and to distinguish their offerings from those of competitors.” Id. Those advertisements, moreover, “link higher transmission speeds and service reliability with enhanced access to the Internet at large — to any ‘points’ a user may wish to reach.” Id. at 5756 ¶ 352. For example, RCN brags that its service is “ideal for watching Netflix,” and Verizon touts its service as “work[ing] well for uploading and sharing videos on YouTube.” Id. Based on the providers’ emphasis on how useful their services are for accessing third-party content, the Commission found that end users view broadband service as a mechanism to transmit data of their own choosing to their desired destination — i.e., as a telecommunications service. In concluding that broadband qualifies as a telecommunications service, the Commission explained that although broadband often relies on certain information services to transmit content to end users, these services “do not turn broadband Internet access service into a functionally integrated information service” because “they fall within the telecommunications system management exception.” Id. at 5765 ¶ 365. The Commission focused on two such services. The first, DNS, routes end users who input the name of a website to its numerical IP address, allowing users to reach the website without having to remember its multidigit address. Id. at 5766 ¶ 366. The second, caching, refers to the process of storing copies of web content at network locations closer to users so that they can access it more quickly. Id. at 5770 ¶ 372. The Commission found that DNS and caching fit within the statute’s telecommunications management exception because both services are “simply used to facilitate the transmission of information so that users can access other services.” Id. Petitioners assert numerous challenges to the Commission’s decision to reclassify broadband. Finding that none has merit, we uphold the classification. Significantly, although our colleague believes that the Commission acted arbitrarily and capriciously when it reclassified broadband, he agrees that the Commission has statutory authority to classify broadband as a telecommunications service. Concurring & Dissenting Op. at 748. A. Before addressing petitioners’ substantive challenges to the Commission’s reclassification of broadband service, we must consider two procedural arguments, both offered by US Telecom. First, US Telecom asserts that the Commission violated section 553 of the Administrative Procedure Act, which requires that an NPRM “include ... either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3). According to US Telecom, the Commission violated this requirement because the NPRM proposed relying on section 706, not Title II; never explained that the Commission would justify reclassification based on consumer perception; and failed to signal that it would rely on the telecommunications management exception. Under the APA, an NPRM must “provide sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully.” Honeywell International, Inc. v. EPA, 372 F.3d 441, 445 (D.C. Cir. 2004) (internal quotation marks omitted). The final rule, however, “need not be the one proposed in the NPRM.” Agape Church, Inc. v. FCC, 738 F.3d 397, 411 (D.C. Cir. 2013). Instead, it “need only be a ‘logical outgrowth’ of its notice.” Covad Communications Co. v. FCC, 450 F.3d 528, 548 (D.C. Cir. 2006). An NPRM satisfies the logical outgrowth test if it “expressly ask[s] for comments oh a particular issue or otherwise ma[kes] clear that the agency [is] contemplating a particular change.” CSX Transportation, Inc. v. Surface Transportation Board, 584 F.3d 1076, 1081 (D.C. Cir. 2009). The Commission’s NPRM satisfied this standard. Although the NPRM did say that the Commission was considering relying on section 706, it also “expressly asked for comments” on whether the Commission should reclassify broadband: “[w]e seek comment on whether the Commission should rely on its authority under Title II of the Communications Act, including ... whether we should revisit the Commission’s classification of broadband Internet access service as an information service ....” NPRM, 29 FCC Red. at 5612 ¶ 148 (footnote omitted). US Telecom’s second complaint— that the NPRM failed to provide a meaningful opportunity to comment on the Commission’s reliance on consumer perception — is equally without merit. In Brand X, the Supreme Court explained that classification under the Communications Act turns on “what the consumer perceives to be the ... finished product.” 545 U.S. at 990, 125 S.Ct. 2688. Given this, and given that the NPRM expressly stated that the Commission was considering reclassifying broadband as a telecommunications service, interested parties could “comment meaningfully” on the possibility that the Commission would follow Brand X and look to consumer perception. Brand X also provides the answer to US Telecom’s complaint about the telecommunications management exception. In Brand X, the Court made clear that to reclassify broadband as a telecommunications service, the Commission would need to conclude that the telecommunications component of broadband was “functionally separate” from the information services component. Id. at 991, 125 S.Ct. 2688. Moreover, the dissent expressly noted that the Commission could reach this conclusion in part by determining that certain information services fit within the telecommunications management exception. “[The] exception,” the dissent explained, “would seem to apply to [DNS and caching], DNS, in particular, is scarcely more than routing information .... ” Id. at 1012-13, 125 S.Ct. 2688 (Scalia, J., dissenting). As they could with consumer perception, therefore, interested parties could “comment meaningfully” on the Commission’s use of the telecommunications management exception. US Telecom next argues that the Commission violated the Regulatory Flexibility Act by failing to conduct an adequate Final Regulatory Flexibility Analysis regarding the effects of reclassification on small businesses. See 5 U.S.C. § 604(a). We lack jurisdiction to entertain this argument. Under the Communications Act, for a party to challenge an order based “on questions of fact or law upon which the Commission ... has been afforded no opportunity to pass,” a party must “petition for reconsideration.” 47 U.S.C. § 405(a). Because the Commission included its Final Regulatory Flexibility Analysis in the Order, US Telecom had to file a petition for reconsideration if it wished to object to the analysis. US Telecom failed to do so. B. This brings us to petitioners’ substantive challenges to reclassification. Specifically, they argue that the Commission lacks statutory authority to reclassify broadband as a telecommunications service. They also argue that, even if it has such authority, the Commission failed to adequately explain why it reclassified broadband from an information service to a telecommunications service. Finally, they contend that the Commission had to determine that broadband providers were common carriers under this court’s NARTJC test in order to reclassify. 1. In addressing petitioners’ first argument, we follow the Supreme Court’s decision in Brand X and apply Chevron’s two-step analysis. Brand X, 545 U.S. at 981, 125 S.Ct. 2688 (“[W]e apply the Chevron framework to the Commission’s interpretation of the Communications Act.”). At Chevron step one, we ask “whether Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. Where “the intent of Congress is clear, that is the end of the matter; for [we], as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. But if “the statute is silent or ambiguous with respect to the specific issue,” we proceed to Chevron step two, where “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. As part of its challenge to the Commission’s reclassification, US Telecom argues that broadband is unambiguously an information service, which would bar the Commission from classifying it as a telecommunications service. The Commission maintains, however, that Brand X established that the Communications Act is ambiguous with respect to the proper classification of broadband. As the Commission points out, the Court explained that whether a carrier provides a “telecommunications service” depends on whether it makes an “offering” of telecommunications. Brand X, 545 U.S. at 989, 125 S.Ct. 2688; see also 47 U.S.C. § 153(53) (“The term ‘telecommunications service’ means the offering of telecommunications for a fee directly to the public .... ” (emphasis added)). The term “offering,” the Court held, is ambiguous. Brand X, 545 U.S. at 989, 125 S.Ct. 2688. Seeking to escape Brand X, US Telecom argues that the Court held only that the Commission could classify as a telecommunications service the “last mile” of transmission, which US Telecom defines as the span between the end user’s computer and the broadband provider’s computer. Here, however, the Commission classified “the entire broadband service from the end user all the way to edge providers” as a telecommunications service. US Telecom Pet’rs’ Br. 44. According to US Telecom, “[t]he ambiguity addressed in Brand X thus has no bearing here because the Order goes beyond the scope of whatever ambiguity [the statute] contains.” Id. (second alteration in original) (internal quotation marks omitted). We have no need to resolve this dispute because, even if the Brand X decision was only about the last mile, the Court focused on the nature of the functions broadband providers offered to end users, not the length of the transmission pathway, in holding that the “offering” was ambiguous. As discussed earlier, the Commission adopted that approach in the Order in concluding that the term was ambiguous as to the classification question presented here: whether the “offering” of broadband internet access service can be considered a telecommunications service. In doing so, the Commission acted in accordance with the Court’s instruction in Brand X that the proper classification of broadband turns “on the factual particulars of how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in the first instance.” 545 U.S. at 991, 125 S.Ct. 2688. US Telecom makes several arguments in support of its contrary position that broadband is unambiguously an information service. None persuades us. First, US Telecom contends that the statute’s text makes clear that broadband service “qualifies under each of the eight, independent parts of the [information service] definition,” US Telecom Pet’rs’ Br. 30— namely, that it “offer[s] ... a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications,” 47 U.S.C. § 153(24). Accordingly, US Telecom argues, broadband service “cannot fall within the mutually exclusive category of telecommunications service.” US Telecom Pet’rs’ Br. 30 (internal quotation marks and footnote omitted). But this argument ignores that under the statute’s definition of “information service,” such services are provided “via telecommunications.” 47 U.S.C. § 153(24). This, then, brings us back to the basic question: do broadband providers make a standalone offering of telecommunications? US Telecom’s argument fails to provide an unambiguous answer to that question. US Telecom next claims that 47 U.S.C. § 230, enacted as part of the Communications Decency Act of 1996, a portion of the Telecommunications Act, “confirms that Congress understood Internet access to be an information service.” US Telecom Pet’rs’ Br. 33. Section 230(b) states that “[i]t is the policy of the United States ... to promote the continued development of the Internet and other interactive computer services and other interactive media.” 47 U.S.C. § 230(b)(1). In turn, section 230(f) defines an “interactive computer service” “[a]s used in this section” as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet.” Id. § 230(f)(2). According to US Telecom, this definition of “interactive computer service” makes clear that an information service “includes an Internet access service.” US Telecom Pet’rs’ Br. 33. As the Commission pointed out in the Order, however, it is “unlikely that Congress would attempt to settle the regulatory status of broadband Internet access services in such an oblique and indirect manner, especially given the opportunity to do so when it adopted the Telecommunications Act of 1996.” 30 FCC Red. at 5777 ¶ 386; see Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (“Congress ... does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes.”). Finally, US Telecom argues that “[t]he statutory context and history confirm the plain meaning of the statutory text.” US Telecom Pet’rs’ Br. 33. According to US Telecom, while the Computer II regime was in effect, the Commission classified “gateway services allowing access to information stored by third parties” as enhanced services, and Congress incorporated that classification into the Communications Act when it enacted the Telecommunications Act’s information/telecommunications service dichotomy. Id. at 33-35. “Those ‘gateways,’ ” US Telecom insists, “involved the same ‘functions and services associated with Internet access.’ ” Id. at 34 (quoting In re Federal-State Joint Board on Universal Service, 13 FCC Red. 11,501 ¶ 75 (1998)). This argument suffers from a significant flaw: nothing in the Telecommunications Act suggests that Congress intended to freeze in place the Commission’s existing classifications of various services. Indeed, such a reading of the Telecommunications Act would conflict with the Supreme Court’s holding in Brand X that classification of broadband “turns ... on the factual particulars of how Internet technology works and how it is provided, questions Chevron leaves to the Commission to resolve in the first instance.” 545 U.S. at 991, 125 S.Ct. 2688. Amici Members of Congress in Support of Petitioners advance an additional argument that post-Telecommunications Act legislative history “demonstrates that Congress never delegated to the Commission” authority to regulate broadband service as a telecommunications service. Members of Congress for Pet’rs Amicus Br. 4. In support, they point out that Congress has repeatedly tried and failed to pnact open internet legislation, confirming, in their view, that the Commission lacks authority to issue open internet rules. But as the Supreme Court has made clear, courts do not regard Congress’s “attention” to a matter subsequently resolved by an agency pursuant to statutory authority as “legislative history demonstrating a congressional construction of the meaning of the statute.” American Trucking Ass’ns v. Atchison, Topeka, & Santa Fe Railway Co., 387 U.S. 397, 416-17, 87 S.Ct. 1608, 18 L.Ed.2d 847 (1967). Following this approach, we have rejected attempts to use legislative history to cabin an agency’s statutory authority in the manner amici propose. For example, in Advanced Micro Devices v. Civil Aeronautics Board, petitioners challenged the Civil Aeronautics Board’s rules adopting a more deferential approach to the regulation of international cargo rates. 742 F.2d 1520, 1527-28 (D.C. Cir. 1984). Petitioners asserted that the Board had no authority to promulgate the rules because “Congress deliberately eschewed the course now advanced by the [Board],” id. at 1541, when it tried and failed to enact legislation that would have put “limits on the Board’s ratemaking functions regarding international cargo,” id. at 1523. Rejecting petitioners’ argument, we explained that “Congress’s failure to enact legislation ... d[oes] not preclude analogous rulemaking.” Id. at 1542 (citing American Trucking Ass’ns, 387 U.S. at 416-18, 87 S.Ct. 1608). In that case, as here, the relevant question was whether the agency had statutory authority to promulgate its regulations, and, as we explained, “congressional inaction or congressional action short of the enactment of positive law ... is often entitled to no weight” in answering that question. Id. at 1541. Amici also argue that Congress’s grants to the Commission of “narrow authority over circumscribed aspects of the Internet” indicate that the Commission lacks “the authority it claims here.” Members of Congress for Pet’rs Amicus Br. 9. None of the statutes amici cite, however, have anything to do with the sort of common carrier regulations at issue here. Full Service Network also urges us to resolve this case at Chevron step one, though it takes the opposite position of US Telecom. According to Full Service Network, broadband is unambiguously a telecommunications service because it functions primarily as a transmission service. That argument clearly fails in light of Brand X, which held that classification of broadband as an information service was permissible. Brand X also requires that we reject intervenor TechFreedom’s argument that the reclassification issue is controlled by the Supreme Court’s decision in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). In that case, the Court held that “Congress ha[d] clearly precluded the FDA from asserting jurisdiction to regulate tobacco products.” Id. at 126, 120 S.Ct. 1291. The Court emphasized that the FDA had disclaimed any authority to regulate tobacco products for more than eighty years and that Congress had repeatedly legislated against this background. Id. at 143-59, 120 S.Ct. 1291. Furthermore, the Court observed, if the FDA did have authority to regulate the tobacco industry, given its statutory obligations and its factual findings regarding the harmful effects of tobacco, the FDA would have had to ban tobacco products, a result clearly contrary to congressional intent. See id. at 135-43, 120 S.Ct. 1291. If Congress sought to “delegate a decision of such economic and political significance” to the agency, the Court noted, it would have done so clearly. Id. at 160, 120 S.Ct. 1291. Relying on Brown & Williamson, TechFreedom urges us to exercise “judicial skepticism of the [Commission’s] power grab.” TechFreedom Intervenor Br. 18. TechFreedom ignores Brand X. As explained above, the Supreme Court expressly recognized that Congress, by leaving a statutory ambiguity, had delegated to the Commission the power to regulate broadband service. By contrast, in Brown & Williamson the Court held that Congress had “precluded” the FDA from regulating cigarettes. This brings us, then, to petitioners’ and intervenors’ Chevron step two challenges. First, US Telecom argues that the Commission’s classification is unreasonable because many broadband providers offer information services, such as email, alongside internet access. According to US Telecom, because broadband providers still offer such services, consumers must perceive that those providers offer an information service. For its part, the Commission agreed that broadband providers offer email and other services, but simply concluded that “broadband Internet access service is today sufficiently independent of these information services that it is a separate offering.” 2015 Open Internet Order, 30 FCC Red. at 5758 ¶ 356. US Telecom nowhere challenges that conclusion, and for good reason: the record contains extensive evidence that consumers perceive a standalone offering of transmission, separate from the offering of information services like email and cloud storage. See supra at 698-99. US Telecom next contends that the Commission’s reclassification of broadband was unreasonable because DNS and caching do not fall within the Communications Act’s telecommunications management exception. As noted above, that exception excludes from the definition of an information service “any [service] for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” 47 U.S.C. § 153(24). The Commission found that “[w]hen offered as part of a broadband Internet access service, caching [and] DNS [are] simply used to facilitate the transmission of information so that users can access other services.” 2015 Open Internet Order, 30 FCC Red. at 5770 ¶ 372. Challenging this interpretation, US Tele-com argues that DNS and caching fall outside the exception because neither “manage[s] a telecommunications system or service,” US Telecom Pet’rs’ Br. 39, but are instead examples of the “many core information-service functions associated with Internet access,” id. at 37. US Tele-com claims that the Commission’s use of the telecommunications management exception was also unreasonable because the Commission “contends that the same functions — DNS and caching — are used for telecommunications management when offered as part of Internet access, but are an information service when third-party content providers similarly offer them.” Id. at 40. We are unpersuaded. First, the Commission explained that the Communications Act’s telecommunications management exception encompasses those services that would have qualified as “adjunct-to-basic” under the Computer II regime. 2015 Open Internet Order, 30 FCC Red. at 5766-67 ¶ 367 (citing Non-Accounting Safeguards Order, 11 FCC Red. at 21,958 ¶ 107). To qualify as an adjunct-to-basic service, a service had to be “ ‘basic in purpo