United States Telecom Ass'n v. Federal Communications Commission

Opinion concurring in part and dissenting in part filed by Senior Circuit Judge WILLIAMS.

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-*690240, 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 telecommuni*691cations 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 *692Wireline 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 *693FCC 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 *694rule 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 *695detrimental 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 *696“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 ... *697is 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