IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
INCOMPAS,
Petitioner,
Case No. _____

v.
FEDERAL COMMUNICATIONS
COMMISSION
and UNITED STATES OF AMERICA,
Respondents.

PETITION FOR REVIEW
Pursuant to 5 U.S.C. § 706, 47 U.S.C. § 402(a), 28 U.S.C. §§ 2342 and 2344
and Federal Rule of Appellate Procedure 15(a), COMPTEL d/b/a INCOMPAS
(“INCOMPAS”), the internet and competitive networks association, hereby
petitions this Court for review of the final order of the Federal Communications
Commission (“FCC”) captioned in Restoring Internet Freedom, Declaratory
Ruling, Report and Order, and Order, 33 FCC Rcd. 311 (2018) (“Order”).
Petitioner is attaching an electronic copy of the Order with this petition. The new
regulations in the Order were published in the Federal Register on February 22,
2018. See 83 Fed. Reg. 7852.
Venue is proper in this Court pursuant to 28 U.S.C. § 2343.
In 2015, the FCC promulgated network neutrality rules which, among other
things, protected consumers, websites, apps, streaming services, internet

 companies, and content creators against broadband internet access service
providers’ “economic incentives and technical ability to engage in practices that
pose a threat to Internet openness,” including their “ability to use terms of
interconnection to disadvantage edge providers.” Protecting and Promoting the
Open Internet, Report and Order On Remand, Declaratory Ruling, and Order, 30
FCC Rcd. 5601, 5628 ¶ 78, 5694 ¶ 205 (2015), aff’d sub nom. United States
Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016). This Court held that the
FCC had properly exercised its authority to reclassify broadband internet access
service as a telecommunications service subject to Title II of the Communications
Act of 1934 and to promulgate rules to promote and protect internet openness.
In the Order on review here, the FCC reversed course and reclassified
broadband internet access service as an information service subject to Title I of the
Communications Act. It also departed from every previous network neutrality
order in addition to longstanding bipartisan FCC policy that the FCC has
jurisdiction to ensure that American consumers have access to an open internet and
by abandoning bright line rules protecting internet openness. These rules protected
consumers and internet (edge) companies by prohibiting an ISP from blocking
content, throttling content, or engaging in paid prioritization. The Commission
also departed from its prior findings that broadband internet access service
providers have the incentive and ability to block or degrade content and engage in

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 other behavior that harms an open internet. The Commission also, among other
things, denied INCOMPAS’s motion submitted in the proceeding below. Order,
33 FCC Rcd. at 496 ¶ 324.
Petitioner, which participated in the proceeding below filing detailed and
substantive comments and reply comments, is the leading national trade
association representing a wide array of competitive organizations in the internet
ecosystem, including streaming services, internet companies, internet backbone
providers and content delivery networks, wired ISPs, cloud and competitive
communications service providers, and their supplier partners. Petitioner and its
members would be aggrieved by the Order.
INCOMPAS’s motion, which was improperly denied in the Order, requested
that the FCC incorporate in the docket below highly probative documents,
analyses, and findings from previous merger investigations, where the Department
of Justice and the FCC found—contrary to ISP assertions—that broadband internet
access providers representing nearly 70% of residential broadband internet access
subscribers had the incentive and ability to engage in behavior that threatened an
open internet. See INCOMPAS, Motion to Modify Protective Orders, WC Docket
No. 17-108, at 1 (July 17, 2017) (“Motion”); see also Reply Comments of
INCOMPAS, WC Docket No. 17-108, at 19 (Aug. 30, 2017). Among other things,
INCOMPAS’s motion cited several instances in those proceedings where the

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 Commission had recognized the incentives that broadband providers have to harm
an open internet. Motion at 7-9.
Those determinations—resulting from lengthy investigative proceedings—
stand in stark contrast with the Order’s newly found determination that ISPs lack
such incentives and abilities. Compare Applications of AT&T, Inc. and
DIRECTV for Consent to Assign or Transfer Control of Licenses and
Authorizations, Memorandum Opinion and Order, 30 FCC Rcd. 9131, 9210 ¶ 210
(2015) (“We find that as the combined entity expands its online offerings, it will
have an increased incentive to limit subscriber demand for competitors’ online
video content . . . . Indeed, AT&T’s internal documents indicate that [BEGIN
HIGHLY CONF. INFO.] *** [END HIGHLY CONF. INFO.].”) and Applications
of Charter Communications, Inc., Time Warner Cable Inc., and
Advance/Newhouse Partnership for Consent to Assign or Transfer Control of
Licenses and Authorizations, Memorandum Opinion and Order, 31 FCC Rcd.
6327, 6344 ¶ 42 (2016) (“Many [internal] documents indicate that, despite some
instances of [BEGIN HIGHLY CONF. INFO.] *** [END HIGHLY CONF.
INFO.], New Charter would have an incentive to harm OVDs that could serve as
substitutes for some or all of its video products.”), with Order, 33 FCC Rcd. at 382
¶ 116 (“We do not believe hypothetical harms, unsupported by empirical data,

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 economic theory, or even recent anecdotes, provide a basis for public-utility
regulation of ISPs.”).
Petitioner seeks review of the Order, including among other things the order
specifically denying INCOMPAS’s motion, on the grounds that: it violates federal
law, including, but not limited to, the Communications Act of 1934, 47 U.S.C. §§
151 et seq., as amended, and the Telecommunications Act of 1996, and FCC
regulations promulgated thereunder; it abdicates the FCC’s statutory mandate; it is
arbitrary, capricious, and an abuse of discretion within the meaning of the
Administrative Procedure Act, 5 U.S.C. § 701 et seq.; and is otherwise contrary to
law.
Petitioner respectfully requests that this Court hold unlawful, vacate, enjoin,
and set aside the Order, and that it provide additional relief as may be just and
appropriate.

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 Respectfully submitted,

Angie Kronenberg
Karen Reidy
Chris Shipley
INCOMPAS
1200 G Street NW
Suite 350
Washington, DC 20005
(202) 296-6650

Markham C. Erickson
Georgios Leris
Steptoe & Johnson LLP
1330 Connecticut Avenue NW
Washington, DC 20036
(202) 429-3000
Counsel for Petitioner
INCOMPAS

Dated: April 23, 2018

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 CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1 and this Court’s Rule
26.1, COMPTEL d/b/a INCOMPAS (“INCOMPAS”) states that it is a not-forprofit corporation and has not issued shares or debt securities to the public.
INCOMPAS does not have any parent companies, subsidiaries, or affiliates that
have issued shares or debt securities to the public. INCOMPAS, the internet and
competitive networks association, is the leading national trade association
representing internet, streaming, fiber and competitive communications service
providers large and small and their supplier partners. INCOMPAS’s mission is to
advocate for laws and policies that promote competition, innovation and
economic development.

Respectfully submitted,

Angie Kronenberg
Karen Reidy
Chris Shipley
INCOMPAS
1200 G Street NW
Suite 350
Washington, DC 20005
(202) 296-6650
Dated: April 23, 2018

Markham C. Erickson
Georgios Leris
Steptoe & Johnson LLP
1330 Connecticut Avenue NW
Washington, DC 20036
(202) 429-3000
Counsel for Petitioner
INCOMPAS

 CERTIFICATE OF SERVICE
I, Georgios Leris, hereby certify that on April 23, 2018, I caused a copy of the
foregoing Petition for Review and Corporate Disclosure Statements to be served on
the following counsel by the manner indicated:

By First Class Mail and
Electronic Mail

By First Class Mail

Thomas M. Johnson, Jr.
General Counsel
Federal Communications Commission
Room 8-A741
445 12th St., SW
Washington, DC 20054
thomas.johnson@fcc.gov

Jefferson B. Sessions
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Georgios Leris