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Summary:

The Federal Communications Commission may soon abandon its plan to reclassify high-speed Internet access as a transport service subject to its regulation. As a result the agency’s plans on issues from network neutrality and universal service fund reform could face legal challenges.

The Federal Communications Commission may soon abandon its plan to reclassify high-speed Internet access as a transport service subject to its regulation, according to sources in Washington. Which means everything from the agency’s ability to regulate network neutrality to its planned reform of the universal service fund could end up mired in legal challenges, and may never be completed.

The reclassification debate became an issue in April after an appeals court overturned a 2008 ruling against Comcast for blocking P2P files . I wrote then that most people believed the FCC would have no choice but to classify broadband as a transport service (GigaOM Pro, sub req’d) subject to its authority rather than as an information service that requires more legal justification in order for the agency to get involved.

But I recently heard from two sources that the FCC was considering allowing its recent court defeat over its ability to regulate broadband stand without attempting to reclassify broadband, and today Cecilia Kang of The Washington Post writes that she’s heard — from sources inside the Commission — the same thing being attributed to Chairman Julius Genachowski. However, Jen Howard, the spokeswoman for Chairman Genachowski’s office, said that “no decision has been made.”

That may be true, but the issue here is so large and politically charged that it’s possible we’re seeing multiple sides fight this issue out in the press. The pendulum has perhaps swung the other way, either because of a concerted lobbying effort by the large communications companies that don’t want the FCC to get any more power over their broadband business, or possibly because the legal arguments the FCC needs to make in order to change the way it ruled on cable, DSL and wireless broadband back in 2002, 2005 and 2007 are too complex or politically unfeasible.

The FCC took a beating over its authority to implement net neutrality in the most recent round of comments related to its proposed net neutrality rules. In general, large ISPs attacked the FCC’s authority to implement net neutrality, while promising to self-regulate on the issue (and simultaneously arguing that it’s not even a problem in the first place). Organizations representing the wireless industry did the same.

Reclassification is important to any business that plans to offer services via the web, as it would essentially give the FCC clear regulatory powers over high-speed Internet access and the transfer of bits over the ISP’s pipes. Right now, that authority has been questioned, which means businesses offering services over the web have to rely on the ISPs to act as an impartial delivery service, something they’ve been reluctant to do in the past.

  1. Stacey, I’m not sure where you got the notion that “most people believed” the FCC would reclassify broadband Internet access. Your prior article simply says you talked to some folks in DC and believed a consensus was forming. If you listened to Public Knowledge and Free Press, you might have gotten that idea, but if you listened to others, it would have been clear that there was no consensus at all.

    Moreover, none of the pro-reclassification folks have explained how the FCC could find broadband sufficiently noncompetitive to require reclassification, while at the same time finding it so competitive that the FCC could forbear from applying full Title II regulation. Nor have they addressed the fact that making ISPs common carriers would take away the FTC’s jurisdiction over them.

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    1. Michael Chaney Monday, May 3, 2010

      Market competitiveness isn’t necessarily required for a reclassification move, just a Declaratory Ruling or a Report and Order providing a reasoned factual and legal basis for changing the classification and regulatory treatment for Internet services. The FCC just has to demonstrate that the move is not arbitrary and capricious.

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      1. The catch is the “arbitrary and capricious” test. In order to pass it, the FCC has to show that the facts have changed since their last classification, and more significantly, that they’re not throwing a tantrum about being slapped-down by the DC Circuit. The lawyers tell me this is a non-starter.

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      2. Michael Chaney Monday, May 3, 2010

        But the facts have changed. Internet access provided by ISPs today is far different from the AOL, Compuserve and Prodigy days. ISPs today may offer email service or a portal landing page, but the ISP today is, for the most part, not the originator of the information that their customers access. Therefore, their standing as an information service is not as applicable today. Today they act as the telecommunications service of our time. They provide end-to-end communication connections for two parties, usually unaffiliated with the ISP. Any portion of the service provided by the ISP that can be considered an “information service”, such as email or web hosting, can be considered under Title I while the physical network layer service is treated under Title II. Far from being a non-starter, Irrespective of any market competition debate, I believe there is a solid case for reclassification merely based on the merits of how Internet access service has changed over the past 10 years.

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      3. The relevant standard isn’t dialup ISPs, it’s the cable and DSL-based Internet services on sale when the current rules took effect in 2002 and 2005. These services work pretty much the same way today that they did when cable Internet was initially classified by the FCC under Title I in 2002. There is no separable telecommunications service component unless the cable operator offers one for sale, and they don’t.

        Similarly, these systems don’t include an end-to-end connection, because that’s supplied by TCP on the end-user’s computer, not by the network. The operator sells a bundle of services consisting at a minimum of routing, transit, DNS, spam mitigation, and DDoS mitigation; some add on access to premium content such as ESPN 360.

        These are the relevant facts as far as the law is concerned.

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      4. Michael Chaney Monday, May 3, 2010

        I agree that the relevant standard isn’t dialup ISPs, but the service model that those companies were based on was used as the foundational argument for Title I classification in 2002 and 2005, the argument that ISPs are the originator of the information.

        The TCP/IP network access services (routing, transit, DNS, spam mitigation, and DDoS mitigation) that ISPs sell today can indeed be completely separable from the content services (ESPN360, email, web hosting) they provide. These differing layers of service should be treated under separate regulatory structures, because each are in completely different markets with different competitive structures. This is what I feel is the essence of open access and unbundling. It allows for the separation of the content and access markets which all too often get lumped together and incorrectly conflated with each other.

        Just as with the Carterfone decision, ISPs should not have the right to tell you what devices or applications you can lawfully connect to or use over their network so long as no harm to the network (not just congestion) is caused by the device or application. Nor should they be able to discriminate against a connection based on the communicating parties. Network access to the Internet is the telecommunications network of our time, and needs to be treated as such.

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      5. Richard Bennett Monday, May 3, 2010

        The issue isn’t whether some abstract model of networking says “physical is at a different layer from logical,” it’s whether the ISP sells a telecom service without any information processing components, and they don’t.

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      6. Michael Chaney Monday, May 3, 2010

        I posit that all telecommunication services, including plain old telephone, include some form of information processing, and that network administration and routing processing of Internet data is equal to or on par with dial tone detection or frequency processing that occurs with plain old analog telephone service. The question isn’t whether information is processed, it’s whether the essence of the message in the information is fundamentally changed by or originated from the ISP as a fundamental component of the service being purchased by the consumer. I say no, it isn’t.

        The consumer believes they are purchasing the means of communicating to an end party with no discrimination by the ISP based on content, application or device, or destination. The consumer believes this, but it is not the current regulatory structure we are under today, and it should be.

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      7. Richard Bennett Monday, May 3, 2010

        That’s complete nonsense, Michael. The processing required to make a packet-switching network operate is several orders of magnitude greater than the processing in a circuit-switched network. The telephone network was designed to operate with human operators plugging cables into a switchboard, after all.

        And who knows what the “consumer belief” is? Internet users probably believe the network of networks is essentially magic.

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      8. Michael Chaney Monday, May 3, 2010

        The amount or power of the required processing is irrelevant to my analogy. It’s the nature of the processing. Is the processing performed to get essence of the message, unchanged and unimpeded, from one party to another, or is it to alter the message or inspect the message or destination for discriminatory purposes, e.g. DPI and packet forgery? That’s my question.

        You ask how I know what consumer belief is? I know because I am a consumer. I know because I have friends and family who are consumers. I know because I have spoken with and listened to other consumers who are surprised and shocked when they hear what ISPs are legally allowed to do under the current (non)regulatory system.

        As an engineer myself, I understand how complex the technical details are, and I understand the benefits of unconstrained technical innovation. But I can’t leave out the human element in this. The Internet is more than the sum of it’s parts. It is now a way of life and the future of our country’s…no the world’s economic and social growth. I’m a firm believer that we must institute a communications policy that puts fairness, access equality, and consumer protection first. Even if that must come at the expense of slightly reducing ISP’s enormous profit margins, or slowing network innovation to accommodate a vetting process.

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      9. Richard Bennett Tuesday, May 4, 2010

        Michael, surely you understand, being an engineer, that the role of information processing in the Internet isn’t limited to “discrimination,” however you define it. DNSSEC is an information processing system that prevents spoofing, the DNS itself is a massive distributed database, BGP is a sprawling pattern-matching system that processes routes and updates millions of times a second, and MPLS is a semi-circuit system that makes the high-speed interior links stable. Unlike the telephone network, the Internet lives and dies by dynamic allocation of bandwidth and other resources. The more a network operator knows about the traffic it hauls, the better it can allocate resources to maximize user satisfaction. That’s what makes people happy, not slavish obedience to some half-baked mythology.

        So who’s to do your vetting process, customers who vote by switching operators, as 30% do each year, or some unelected bureaucrats who have a well-established history of exceeding their authority and being slapped-down by the court?

        Save the Internet .. from the uninformed do gooders.

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      10. Michael Chaney Tuesday, May 4, 2010

        The problem is simple transparency isn’t enough. I, as an engineer, have the ability to look at the processing and routing components you listed and see that they are impartial processes with the end goal of making fair-use, end-to-end communication more efficient and robust. However, if my mom were to read on Comcast’s website that they employ DNSSEC, that would mean nothing to her, but she still believes her ISP connects her to the Internet and to ebay and Amazon without caring who or where she is, or who or where her websites are.

        There is one body that employs engineers with the ability to understand the intentions and consequences to consumers of network technology, and that body is the FCC. It’s regulatory transparency and the ability to sanction bad behavior that keeps ISPs honest. Look, the FCC has been doing this for almost a century with telegraph, telephone, radio, broadcast TV, and cable TV. They have or can have the technical expertise to not be the uninformed do-gooders you fear.

        I completely agree that allowing bureaucrats, without any technical expertise backing them, to pass punitive and reactionary regulation would be harmful, but let’s not throw baby out with the bathwater. MSOs who also operate cable TV plants and who own cable TV (and soon broadcast) content have vested interests in traffic shaping techniques that go beyond fair-use network management. We need an informed and technically savvy “cop on the beat” that can ensure consumer protection in this increasingly intelligent infrastructure. In addition to saving the Internet from uninformed, reactionary do-gooders, we need to have a regulatory body that has the expertise and legal foundation to prevent ISPs from hiding anti-consumer practices in technical detail and to sanction them if they do.

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      11. Here’s your problem, Michael, and this is my last word on the subject. You say: “We need an informed and technically savvy “cop on the beat” that can ensure consumer protection in this increasingly intelligent infrastructure.”

        The FCC is not that creature where the Internet is concerned. It may wish to be, and it may aspire to be, but the FCC does not currently possess Internet expertise.

        And moreover, the Congress has never instructed the FCC to go off and regulate the Internet, so even if they had the ability, they don’t have the authority.

        The Internet works because of mutual cooperation, and it works well because of competition. The various regulatory agencies serve and important role vis a vis disclosure and ant-trust, but they have no business fussing about prioritization of one packet over another. The fact that they think they do is all the reason any sensible Internet engineer needs to know that they should stay far, far away from these questions.

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      12. Michael Chaney Tuesday, May 4, 2010

        “For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communications, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is created a commission to be known as the “Federal Communications Commission”, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.”

        Nothing in the FCC’s original charter limits the definition of “communication” to voice. In fact, a major component of the creation of the FCC was to regulate interstate commerce in matters involving communications. I don’t think anyone could argue that the Internet isn’t today a key component of interstate commerce.

        I believe the FCC absolutely has the authority to include Internet service as a Title II communications service, and I have yet to hear a convincing argument for why is shouldn’t be. We can debate the state of market competition ad nauseam, but fact still remains that the Internet is a public good and it needs to be protected as such. Who better to do that than the FCC? AT&T? Comcast? My wallet which can only choose between the two? The all-regulation-is-bad argument just doesn’t hold up in all situations, and protecting our communication infrastructures from market abuse is a prime example.

        http://www.law.cornell.edu/uscode/47/usc_sec_47_00000151—-000-.html

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      13. Michael said: “Nothing in the FCC’s original charter limits the definition of “communication” to voice.” Absolutely right. The debate isn’t about whether communication is involved; it definitely is. The question is whether broadband Internet access is a “telecommunications service” (which is a common carrier service subject to Title II) or an “information service” that isn’t subject to Title II (or even something else).

        Whether something is a telecommunications or information service doesn’t turn on whether it’s voice or data. There are voice information services (audiotex, sports score numbers, etc.) and there are data telecommunications services (telephone companies offer DS-1, DS-3, and OC-1 lines, and any number of other broadband data services as common carrier services). There are also a wide variety of voice and data telecommunications offerings that are not “telecommunications services” — i.e., not common carrier Title II services.

        The difference between a telecommunications offering (which is a Title II telecommunications service if offered to the public for hire indifferently) and an information service is that telecommunications, or telecommunications service is simple transport of voice or bits between points of the customer’s choosing, while an information service is an integrated offering that includes more than just transport — it gives the customer the ability to interact by storing, retrieving, generating, or manipulating information.

        For example, if I want to hook my home up to my office’s computer network, I can do it at least two ways:

        (1) I can lease a dedicated private line (known as “special access”) between my home and my office, and have my IT department hook up the termination of that line to the network. That’s simply pure transport, regardless of the technology employed by the telephone company to deliver it — coax, open wire, fiber, microwave, frame-relay, IP-based or not. That is just a plain old pipe, so it’s telecommunications, and if offered in accordance with the criteria for “telecommunications service” (which echo the traditional common law definition of common carrier), it’s subject to Title II to one or another degree. If it’s offered on an individually negotiated basis, without obligation, it’s “private carrier” telecommunications not subject to title II.

        (2) I can subscribe to broadband Internet access, either business-grade (subject to a service level agreement) or consumer-grade (best efforts, but no guarantees) at any speed offered by a local provider, and use that as a vehicle for a software- or hardware-based VPN to my office’s network. The broadband Internet access isn’t a pipe to my office; it’s an opening to the whole Internet (via telecommunications, namely the wires or fibers from my home to the ISP), and I (and my software) choose how to use it to interact with information repositories such as my office network or google.cn. That’s an “information service,” not a mere telecommunications pipe.

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      14. To further respond to Michael –

        He quotes Section 1 of the Communications Act, 47 USC 151, which explains why the Congress created the FCC. However, the courts have made clear that the language in that section does not define the FCC’s substantive authority. The FCC is not empowered to do whatever it sees fit as long as it advances one of those objectives. The Comcast v. FCC decision, along with previous decisions of the courts, makes clear that the FCC’s authority to act with respect to something involving communications is limited to those things Congress specifically told it to do (e.g., license radio stations, ensure common carriers don’t unreasonably discriminate), or things the FCC reasonably finds necessary to accomplish the duties that Congress gave it. The latter is known as “ancillary authority” and was the subject of the Comcast decision. The FCC was unable to articulate what statutory responsibility it was safeguarding when it sought to regulate an ISP’s treatment of BitTorrent packets on its network.

        You can believe all you want about whether the FCC can require ISPs to operate under Title II, just as one can believe in the tooth fairy. It’s not a matter of belief; it’s a matter of whether the FCC has been given responsibilities by Congress that require regulating ISPs as Title II common carriers. Bear in mind that many providers of plain old telecommunications pipes, including fiber and satellite, operate as private carriers not subject to Title II.

        Congress provided definitions of telecommunications service and information service in 1996 that essentially corresponded to the FCC’s definition in the 1980s Computer II decision of “basic” common carrier service and “enhanced” service, which added value to the basic service’s pipe. If a given service had some characteristics of both, Computer II said it would be an enhanced (unregulated) service. The FCC in its Stevens Report in 1998 came to the same conclusion about telecommunications services and information services — if it seems to have characteristics of both, it’s an information service; the two are mutually exclusive. The Cable Modem upheld in NCTA v. Brand X, as well as subsequent decisions involving other Internet access technologies have drawn on decades of precedent — validated by the Telecom Act — for the proposition that a service is either a basic service because it is no more than a transport “pipe” (and thus a telecommunications service) or else an enhanced service (and thus an information service).

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      15. Michael Chaney Wednesday, May 5, 2010

        “There are voice information services (audiotex, sports score numbers, etc.) and there are data telecommunications services (telephone companies offer DS-1, DS-3, and OC-1 lines, and any number of other broadband data services as common carrier services). There are also a wide variety of voice and data telecommunications offerings that are not “telecommunications services” — i.e., not common carrier Title II services.”

        You’re pretty much making my point for me. Are we really supposed to believe that broadband Internet access today is more akin to audiotex, sports score numbers, etc. than to DS-3 or OC-1 lines? Here’s the test. I can use any ISP to access ESPN.com or Gigaom.com and I am accessing the same source of the content. The transport access service is transparent. The same also holds true if I were to VPN to my work network over AT&T, Verizon, or Comcast. I get to the same destination regardless of who’s providing the access. My ISP is not the one offering me an information service, my destination is. My ISP is offering me what should be a common-carrier telecommunications service, just like DS-3 or OC-1.

        Scalia had it right. Anyone selling broadband access to the Internet is offering telecommunications.

        http://www.law.cornell.edu/supct/html/04-277.ZD.html

        The Supreme Court Cable Modem decision left the door open for the FCC to revisit its reclassification of Internet access under Title I, and it needs to do so.

        Here’s a great article giving a brief history of events for those reading along.

        http://arstechnica.com/tech-policy/news/2010/05/end-days-for-net-neutrality-at-the-fcc.ars

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      16. Michael Chaney Wednesday, May 5, 2010

        To finish this conversation off, I’d like to quote a few paragraphs from Justice Scalia’s dissent of the Cable Modem decision. He hit the nail right on the head, and his words ring more true today than they did 5 years ago.

        “The focus on the term “offer” appropriately derives from the statutory definitions at issue in these cases. Under the Telecommunications Act of 1996, 110 Stat. 56, “ ‘information service’ ” involves the capacity to generate, store, interact with, or otherwise manipulate “information via telecommunications.” 47 U.S.C. § 153(20). In turn, “ ‘telecommunications’ ” is defined 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.” §153(43). Finally, “ ‘telecommunications service’ ” is defined as “the offering of telecommunications for a fee directly to the public … regardless of the facilities used.” §153(46). The question here is whether cable-modem-service providers “offe[r] … telecommunications for a fee directly to the public.” If so, they are subject to Title II regulation as common carriers, like their chief competitors who provide Internet access through other technologies.

        The Court concludes that the word “offer” is ambiguous in the sense that it has “ ‘alternative dictionary definitions’ ” that might be relevant. Ante, at 18 (quoting National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U.S. 407, 418 (1992)). It seems to me, however, that the analytic problem pertains not really to the meaning of “offer,” but to the identity of what is offered. The relevant question is whether the individual components in a package being offered still possess sufficient identity to be described as separate objects of the offer, or whether they have been so changed by their combination with the other components that it is no longer reasonable to describe them in that way.
        
        Thus, I agree (to adapt the Court’s example, ante, at 18) that it would be odd to say that a car dealer is in the business of selling steel or carpets because the cars he sells include both steel frames and carpeting. Nor does the water company sell hydrogen, nor the pet store water (though dogs and cats are largely water at the molecular level). But what is sometimes true is not, as the Court seems to assume, always true. There are instances in which it is ridiculous to deny that one part of a joint offering is being offered merely because it is not offered on a “ ‘stand-alone’ ” basis, ante, at 17.
        
        If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common “usage,” ante, at 18, would prevent them from answering: “No, we do not offer delivery–but if you order a pizza from us, we’ll bake it for you and then bring it to your house.” The logical response to this would be something on the order of, “so, you do offer delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to your house, we are not actually ‘offering’ you delivery, because the delivery that we provide to our end users is ‘part and parcel’ of our pizzeria-pizza-at-home service and is ‘integral to its other capabilities.’ ”  Cf. Declaratory Ruling 4823, ¶39; ante, at 16, 26.1 Any reasonable customer would conclude at that point that his interlocutor was either crazy or following some too-clever-by-half legal advice.
        
        In short, for the inputs of a finished service to qualify as the objects of an “offer” (as that term is reasonably understood), it is perhaps a sufficient, but surely not a necessary, condition that the seller offer separately “each discrete input that is necessary to providing … a finished service,” ante, at 19. The pet store may have a policy of selling puppies only with leashes, but any customer will say that it does offer puppies–because a leashed puppy is still a puppy, even though it is not offered on a “stand-alone” basis.
        
        Despite the Court’s mighty labors to prove otherwise, ante, at 17—29, the telecommunications component of cable-modem service retains such ample independent identity that it must be regarded as being on offer–especially when seen from the perspective of the consumer or the end user, which the Court purports to find determinative, ante, at 18, 22, 27, 28. The Commission’s ruling began by noting that cable-modem service provides both “high-speed access to the Internet” and other “applications and functions,” Declaratory Ruling 4799, ¶1, because that is exactly how any reasonable consumer would perceive it: as consisting of two separate things."
        

        “The Court also puts great stock in its conclusion that cable-modem subscribers cannot avoid using information services provided by the cable company in its ISP capacity, even when they only click-through to other ISPs. Ante, at 27—29. For, even if a cable-modem subscriber uses e-mail from another ISP, designates some page not provided by the cable company as his home page, and takes advantage of none of the other standard applications and functions provided by the cable company, he will still be using the cable company’s Domain Name System (DNS) server and, when he goes to popular Web pages, perhaps versions of them that are stored in the cable company’s cache. This argument suffers from at least two problems. First, in the context of telephone services, the Court recognizes a de minimis exception to contamination of a telecommunications service by an information service. Ante, at 26—27. A similar exception would seem to apply to the functions in question here. DNS, in particular, is scarcely more than routing information, which is expressly excluded from the definition of “information service.” 47 U.S.C. § 153(20).6 Second, it is apparently possible to sell a telecommunications service separately from, although in conjunction with, ISP-like services; that is precisely what happens in the DSL context, and the Commission does not contest that it could be done in the context of cable. The only impediment appears to be the Commission’s failure to require from cable companies the unbundling that it required of facilities-based providers under its Computer Inquiry.

        Finally, I must note that, notwithstanding the Commission’s self-congratulatory paean to its deregulatory largesse, e.g., Brief for Federal Petitioners 29—32, it concluded the Declaratory Ruling by asking, as the Court paraphrases, “whether under its Title I jurisdiction [the Commission] should require cable companies to offer other ISPs access to their facilities on common-carrier terms.”    Ante, at 7; see also Reply Brief for Federal Petitioners 9; Tr. of Oral Arg. 17. In other words, what the Commission hath given, the Commission may well take away–unless it doesn’t. This is a wonderful illustration of how an experienced agency can (with some assistance from credulous courts) turn statutory constraints into bureaucratic discretions. The main source of the Commission’s regulatory authority over common carriers is Title II, but the Commission has rendered that inapplicable in this instance by concluding that the definition of “telecommunications service” is ambiguous and does not (in its current view) apply to cable-modem service. It contemplates, however, altering that (unnecessary) outcome, not by changing the law (i.e., its construction of the Title II definitions), but by reserving the right to change the facts.   Under its undefined and sparingly used “ancillary” powers, the Commission might conclude that it can order cable companies to “unbundle” the telecommunications component of cable-modem service.7  And presto, Title II will then apply to them, because they will finally be “offering” telecommunications service! Of course, the Commission will still have the statutory power to forbear from regulating them under §160 (which it has already tentatively concluded it would do, Declaratory Ruling 4847—4848, ¶¶94—95). Such Möbius-strip reasoning mocks the principle that the statute constrains the agency in any meaningful way.
        
        After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is “offering” telecommunications. For that simple reason set forth in the statute, I would affirm the Court of Appeals."
        

        http://www.law.cornell.edu/supct/html/04-277.ZD.html

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  2. “Reclassification is important to any business that plans to offer services via the web…”

    Wow, there should be a flashing, spinning, and dancing “just my opinion” sign on this post.

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  3. Michael Chaney Tuesday, May 4, 2010

    The problem is simple transparency isn’t enough. I, as an engineer, have the ability to look at the processing and routing components you listed and see that they are impartial processes with the end goal of making fair-use, end-to-end communication more efficient and robust. However, if my mom were to read on Comcast’s website that they employ DNSSEC, that would mean nothing to her, but she still believes her ISP connects her to the Internet and to ebay and Amazon without caring who or where she is, or who or where her websites are.

    There is one body that employs engineers with the ability to understand the intentions and consequences to consumers of network technology, and that body is the FCC. It’s regulatory transparency and the ability to sanction bad behavior that keeps ISPs honest. Look, the FCC has been doing this for almost a century with telegraph, telephone, radio, broadcast TV, and cable TV. They have or can have the technical expertise to not be the uninformed do-gooders you fear.

    I completely agree that allowing bureaucrats, without any technical expertise backing them, to pass punitive and reactionary regulation would be harmful, but let’s not throw baby out with the bathwater. MSOs who also operate cable TV plants and who own cable TV (and soon broadcast) content have vested interests in traffic shaping techniques that go beyond fair-use network management. We need an informed and technically savvy “cop on the beat” that can ensure consumer protection in this increasingly intelligent infrastructure. In addition to saving the Internet from uninformed, reactionary do-gooders, we need to have a regulatory body that has the expertise and legal foundation to prevent ISPs from hiding anti-consumer practices in technical detail and to sanction them if they do.

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    1. Michael Chaney Tuesday, May 4, 2010

      Sorry…meant to post a follow-up reply, not start a new comment. Stacey, can you delete this duplicate comment?

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