
FCC struggles to convince judge that broadband isn’t “telecommunications” - ColinWright
https://arstechnica.com/tech-policy/2019/02/throttling-of-firefighters-hurts-fcc-case-as-it-defends-net-neutrality-repeal/
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jcranmer
I'm spoiled by SCOTUSblog's case analysis in terms of legal tea leaf reading,
which ArsTechnica is most definitely not, but I'll try to do it anyways. If I
understand the case properly, there's a few different moving pieces going on
here.

On the first, whether or not broadband can be classified as information
service... I expect the ruling to be that it can be. The fact is that the FCC
had classified it as such in the past, and only very recently changed that
classification. We can sit here and laugh about how minimal the support is
(the only information service that the FCC can find to cite is DNS, after
all), but this amounts to (from a legal perspective) challenging the technical
definition of the agency providing said technical definition, which is
generally destined to fail (see Chevron).

There is a wrinkle, of course, that the FCC's _process_ for making this
determination is flawed, so it's possible that the court could rule that,
while the decision per se isn't wrong, the process is wrong, so the FCC would
have to go back and redo that. This article doesn't give much of a clue as to
how the court would rule here.

The last question is if the rules here preempt local rules. I've always
thought this argument had a tough time, because the argument of the FCC is (in
effect) that it doesn't have the authority to regulate broadband as an
information service but its non-authority to regulate them preempts states'
authority to regulate them. For federal deregulation to preempt potential
state regulation, it has to be fairly explicit in law, not just an agency
decision. It looks like there is some pushback here in that the judges think
that the FCC's deregulatory claims here are too broadly scoped.

Given Ars's editorial slant, I'm assuming that we're getting most of the pro-
net-neutrality segments of the argument cherry picked, which would lead me to
conclude that this is not going to be a ruling that net neutrality advocates
are hoping for.

~~~
joveian
They leave the problems for the very end, where they note that the supreme
court has already said that classifying a cable modem as an information
service is an allowed reading of the law.

My overall impression reading the definions is what salawat said, that
something about the ordinary use of language isn't happening. But even with
those definitions my question would be if broadband isn't a telecommunication
service then what is the telecommunication service it is over?

Unfortunately, "the supreme court was just plain wrong last time" is not
really allowed in legal decisions. It sounds like at least one of the judges
wants to argue that since ISP email is no longer generally used things have
changed.

~~~
jcranmer
I haven't read the decision in question carefully, but I did skim some of the
briefs in this case. My understanding is that the decision basically said
"broadband is providing both telecommunication and information services, so
it's acceptable to classify is information service." Mozilla et al. is arguing
that the information services broadband--e.g., Usenet, personal website
hosting--used to provide are no longer being provided, so that broadband
companies are no longer providing the information services needed to let them
be classified as information services.

~~~
naasking
> My understanding is that the decision basically said "broadband is providing
> both telecommunication and information services, so it's acceptable to
> classify is information service"

I don't see why these are mutually exclusive. If they are both, shouldn't they
be subject to both sets of rules? Or perhaps they should be required to
separate them.

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xtiansimon
"[FCC General Counsel Thomas Johnson] said broadband is an information service
because Internet providers offer DNS (Domain Name System) services and caching
as part of the broadband package."

"For broadband itself to be an information service, ISPs have to offer
something more than a pure transmission service."

DNS is integral to the utility of the web as an "information system"\--not
really a user friendly service to have to enter the IP address to order on
Grubhub. Yet, DNS can be provided by a third party. It's the sort of thing you
add to your service to make it easier for users to adopt. But if you take it
away, then don't we just have a telecommunication service?

~~~
nathanaldensr
Not only that, but websites don't have TLS certificates securing their IP-
address-form hostnames. The user's browser probably wouldn't even allow the
site to load, if the web server even accepted the IP address as a hostname to
begin with. The modern web is virtually useless without DNS.

~~~
salawat
The poor decisions of developers in relying on the crutch of DNS does not
somehow magically elevate IP routing away from being a telecommunications
service.

I _can_ establish a completely IP based network infrastructure that provides
valuable service to customers at broadband speeds. It wouldn't be fun, but it
would work. That's inarguably telecom, based on their argument, because it
wouldn't involve DNS.

If you try to argue against broadband being telecom because it has an
automated yellow pages, I don't know what to tell you except you're outright
lying about the science, and attempting to perpetuate a maliciously narrow
tooled definition in bad faith.

Now that we bring up the topic, what the heck is an information service other
than a service that serves information _over a telecommunication line_ thereby
rendering it a _telecommunication service_?

I feel like I live in a different universe from these people. Like there's
fundamental rules or mechanisms I've learned about using language to render a
shared experience/common worldview with others that are just absent in these
types of proceedings.

It has gotten to the point that when I read or listen to these types of
things, what people _aren 't_ saying sticks out more to me than what they
_are_ saying. It's infuriating.

~~~
topspin
"I feel like I live in a different universe from these people."

It's the same universe. Remember that it is difficult to get a person to
understand something when their salary depends upon not understanding it.

The real paymasters behind the leadership of the FCC expect the FCC to
continue drawing the distinctions that serve their interest. Any understanding
of the matter that is contrary to "the FCC can't regulate broadband" is,
therefore, incomprehensible.

It is simple, bald-faced regulatory capture.

------
unityByFreedom
This is all politics. There's nothing reasonable about it.

