The Federal Communications Commission (FCC) en - acted the order In re Preserving the Open Internet (the Open Internet Order), which requires Internet service providers to adhere to "net neutrality." This policy prohibits providers from transmitting certain content (such as high-definition movies, which require considerable bandwidth) at slower speeds or higher cost than other types of content. Absent such a rule, "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 [Microsoft's] Bing if a competitor like Google paid for prioritized access." The Open Internet Order included three basic provisions:

(1) transparency, meaning that fixed and mobile broadband providers must disclose network management practices, performance characteristics, and terms and conditions of their services; (2) antiblocking, meaning that fixed broadband providers (those providing residential broadband services and Internet access to end users at fixed points with stationary equipment) may not block lawful content, applications, services, or nonharmful devices, while mobile broadband providers (those providing service to mobile stations such as smart phones) may not block lawful websites or block applications competing with their voice or video telephony services; and (3) antidiscrimination, meaning that fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic. As authority, the FCC cited Section 706 of the Telecommunications Act of 1996, which directed the FCC to promote broadband services and thereby "preserve and facilitate the 'virtuous circle' of innovation that has driven the explosive growth of the Internet." Verizon challenged the order, arguing that (1) the FCC did not have the statutory authority to promulgate the rules, (2) the rules were arbitrary and capricious, and (3) the rules were contrary to statutory provisions that prohibited the FCC from treating broadband providers as common carriers. The 1996 Telecommunications Act defines "telecommunications carrier" as a provider of telecommunications services. It provides that a telecommunications carrier shall be treated as a common carrier to the extent that it is engaged in providing telecommunications services.104 In the communications arena, a common carrier service is one that "makes a public offering to provide [communications facilities]" such that all members of the public who want to use those facilities may do so.105 A carrier is not a common carrier if it makes "individualized decisions, in particular cases, whether and on what terms to deal."

In fact, the FCC had previously classified, in a decision that was still binding, broadband providers as providers of information services and not as providers of telecommunications services; as such, they were not subject to common carrier requirements. The FCC had also previously classified mobile broadband services as "private" mobile services and not commercial ones; statutory provisions required that they, too, not be treated as common carriers.

What facts should a court review to determine whether the rules were issued pursuant to the FCC's statutory grant of authority? What should be the standard of review? [Verizon v. Federal Communications Commission, 740 F.3d 623 (D.C. Cir. 2014).] Several commentators asserted that the rules were an "economic regulation that flies in the face of every proper tenet of wealth creation and expansion of consumer welfare," so vacating the rules would be good for competition. Others argued that vacating the rules would mean that larger online content providers (like Netflix and Amazon) would be able to pay for faster content delivery at the expense of smaller websites because the "Internet is zero-sum." With which position do you agree, and why?