[IP] Re FCC tells court it has no “legal authority” to impose net neutrality rules

Dave Farber

2018-10-15 05:04:26 UTC

Date: October 15, 2018 13:26:39 JST
Subject: Re: [IP] Re FCC tells court it has no âlegal authorityâ to impose net neutrality rules
Hi, Dave,
IANAL, but I do know strawman arguments when I see them.

Date: October 15, 2018 at 3:40:47 AM GMT+9
Subject: Re: [IP] Fwre FCC tells court it has no âlegal authorityâ to impose net neutrality rules
The Big Irony that strikes me in this debate is that people who maintained for 40 years that the Internet was a major, game-changing, revolutionary advance in networking are now saying: âNever mind, I was wrong, the Internet is just another telephone network. Regulate your hearts out, appointed federal bureaucrats!â

Iâve only maintained my small corner of that space for a much smaller period of time, but my position on this has been consistent.

Letâs think through the implications of the claim that DNS is just like 411 and therefore should be regulated under Title II.

Not what I said. I said that the FCCâs logic that claims that âthe DNS is a service and itâs provided with Internet connectivity, thus the latter is a service not merely communicationsâ could as easily be applied to 411 and it would result in the FCC not being able to regulate telephony either.

DNS is provided by Google, Cloudflare, and IBM.

a)- the DNS resolution (forward and reverse) of IP addresses assigned as part of receiving Internet connectivity
b)- DNS resolution of public services
DNS provide by transit providers is (a), and an important part of their transit.
DNS provided by non-transit providers is (b).

Should these firms be regulated under Title II as well?

a) is like 411, and (IMO) like 411 can and should be regulated as part of telecommunications
b) is more like the commercial versions of the yellow pages, which many different parties can (and have) published, regulated in different ways (i.e., not as part of telecommunications)

That would be problematic since Title II includes a lot of baggage in terms of price controls and privacy. Specifically, it disallows the use of information collected in the course of operating the telecommunications service for other purposes - such as ad targeting - without affirmative consent. Putting Google (and why not Facebook while weâre at it, since they operate and extensive network?) under Title II means the end of ad-supported web indexing.

If this was supposed to make be think âoh, the horror, we canât accept that baggageâ, then you did it wrong.
I donât think my *transit provider* has any business trying to monetize my access with ads without my consent. Itâs (to me) exactly like opening my mail or tapping my phone to track what to sell me next.
Note that this is distinct from content providers, which (like brick and mortar businesses) can track customers and target ads.

The FCC has regulated so-called dial-up ISPs as information services since the 1996 Telecommunications Act, and as enhanced services before. Are we to believe that dial-up ISPs do some information processing magic that broadband ISPs donât do? If so, what would that be exactly?

Historically, these dial-up services started as content providers (Prodigy, AOL, etc.), so that made sense.
As dialup and broadband transitioned to transit, its regulation should have transited too (IMO).

While many bloggers regurgitate the advocacy claim that the FCCâs 2017 Restoring Internet Freedom order disavowed any and all authority to regulate ISPs (they usually say âbroadbandâ but the issue is really "Internet service over broadbandâ), a careful reading of the Order and the response to the challenge by Mozilla and other Silicon Valley-friendly players shows that the FCCâs claim is much more narrow and specific.

FWIW, I was responding to the text in the cited article...

It says Section 706 of the Act doesnât give the FCC authority to run around enforcing rules that havenât actually been written down. The Obama era Title II order, you see, includes a âgeneral conduct standardâ that allows the FCC to sanction practices that it deems objectionable even if they donât violate the bans on blocking, throttling, and Quality of Service for a fee specified in the order.
If you want some irony, read the RIF order or the FCCâs response alongside Section 706 and youâll see that the FCCâs preemption authority comes from Section 706. Youâre not going to see that spelled out in the blogs.
Law, like technology, can be complicated, so sometimes you need to consult primary sources.

There are useful details here and we can indeed debate the way in which the orders were implemented and executed. Regardless, we need to start with an opening position on whether we consider Internet access to be a common carrier service (transit of information) or a content service - that determines what sections of the code apply.
Although I appreciate many have hesitated to call the Internet âtransitâ rather than âcontentâ â because of exactly the baggage you mention earlier â IMO, that baggage might be the best way to handle things *exactly* because Internet access *is* transit IMO. If we donât like the baggage, then letâs deal with that â but I donât think the logical contortions required to claim otherwise are an effective way to avoid that issue.
Joe

Date: October 13, 2018 at 11:44:44 PM GMT+9
Subject: FCC tells court it has no âlegal authorityâ to impose net neutrality rules
- if DNS makes broadband ânot telecommunicationsâ, why doesnât 411 directory service do the same for telephony?
- if the FCC has no jurisdiction on federal broadband, why does it think *it* can block states (such as CA) from passing their own broadband regulations (which CA just did)?
Irony impaired indeed.
Joe
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https://arstechnica.com/tech-policy/2018/10/ajit-pais-fcc-tells-court-that-net-neutrality-rules-were-illegal/
FCC tells court it has no âlegal authorityâ to impose net neutrality rules
FCC defends repeal in court, claims broadband isn't "telecommunications."
JON BRODKIN - 10/12/2018, 10:22 AM
The Federal Communications Commission opened its defense of its net neutrality repeal yesterday, telling a court that it has no authority to keep the net neutrality rules in place.
Chairman Ajit Pai's FCC argued that broadband is not a "telecommunications service" as defined in federal law, and therefore it must be classified as an information service instead. As an information service, broadband cannot be subject to common carrier regulations such as net neutrality rules, Pai's FCC said. The FCC is only allowed to impose common carrier regulations on telecommunications services.

â
Richard Bennett
High Tech Forum Founder
Ethernet & Wi-Fi standards co-creator
Internet Policy Consultant

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