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Court Says FCC Can't Stop States From Protecting Net Neutrality

from the ill-communication dept

Today a federal appeals court delivered a decidedly mixed decision in the FCC's ongoing quest to kill net neutrality and telecom sector oversight. On the one hand, the new 2-1 ruling by the US Court of Appeals for the District of Columbia Circuit backs much of the FCC's Orwellian-named "Restoring Internet Freedom" order, which not only repealed the FCC's 2015 net neutrality rules, but gutted much of the agency's authority over broadband providers. That decision shoveled any remaining telecom oversight to an FTC that experts say lacks the authority or resources to actually police giants like AT&T, Verizon, and Comcast (the whole point).

But the ruling wasn't without a few notable catches. The court was quick to kick several aspects of the agency's order back to the FCC for revision. The court noted the FCC failed completely to explore how the repeal would harm public safety and efforts like the FCC's Lifeline program, which doles out a modest $9 monthly subsidy to low-income users to be used on wireless, phone, or broadband service (they have to choose one). Pai's been trying to undermine this Reagan-era program for several years, so the fact his FCC didn't think about the impact gutting FCC authority would have isn't surprising.

The biggest part of the court's ruling is that it shot down the FCC's attempt to stop states from protecting net neutrality. In the wake of the FCC's repeal, 29 states have proposed their own state-level net neutrality rules, one of the biggest reasons ISPs haven't been pushing their luck. Some of these efforts, like California's SB822, actually go further than the FCC's 2015 rules did in policing things like zero rating (ISPs using usage caps as an anti-competitive weapon, something they're already doing).

But the court found that if the FCC is going to void its authority over ISPs, it can't then turn around and try to pre-empt states from protecting consumers themselves:

"We uphold the 2018 Order, with two exceptions. First, the Court concludes that the Commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission “repealed or decided to refrain from imposing” in the Order or that is “more stringent” than the Order. 2018 Order ¶ 195. The Court accordingly vacates that portion of the Order. Second, we remand the Order to the agency on three discrete issues: (1) The Order failed to examine the implications of its decisions for public safety; (2) the Order does not sufficiently explain what reclassification will mean for regulation of pole attachments; and (3) the agency did not adequately address Petitioners’ concerns about the effects of broadband reclassification on the Lifeline Program.

ISPs have, and will continue to, whine incessantly about the perils of having to adhere to dozens of state-level net neutrality laws, but that's a problem of their own making. While large ISPs (and the Pai FCC) have tried to frame the FCC's 2015 rules as hugely draconian and restrictive, in reality they were fairly modest by international standards. And while the Trump DOJ (now not coincidentally run by former Verizon General Counsel Bill Barr) sued California for trying to protect consumers, this new ruling will likely complicate those efforts.

The court ruling supporting the majority of the FCC's repeal remains a bit surprising. Under the Administrative Procedure Act, a regulator has to base major policy decisions on solid justifications and hard data. But the FCC not only failed utterly to show that industry changes warranted such a reversal, its primary justification for repeal (that net neutrality rules stifled industry investment) has been repeatedly proven false. In reality the FCC effectively neutered itself at the behest of largely predatory telecom monopolies, at times using outright fraud to accomplish the goal. And so far, our courts are cool with it, apparently feeling constrained by previous Brand X court declarations (something made clear by Judge Patricia Millett):

"I join the Court's opinion in full, but not without substantial reservation. The Supreme Court's decision in [the Supreme Court's Brand X decision] compels us to affirm as a reasonable option the agency's reclassification of broadband as an information service based on its provision of Domain Name System ("DNS") and caching. But I am deeply concerned that the result is unhinged from the realities of modern broadband service."

No shit. A good chunk of the ruling goes well out of its way to support the FCC's reasoning, especially as it relates to the FCC contention that the broadband sector is competitive (if you're new to US telecom, it's not):

So yeah. As usual, what the courts declare to be valid, and what's actually intellectually and ethically valid are entirely different things. While you'll see a lot of bickering over the legalese in this decision, don't forget what really happened here: telecom lobbyists convinced the FCC to effectively neuter itself, using bogus data, massaged economic analysis, and fraud to accomplish it against the will of the the bipartisan majority of the public. And again, the United States legal system, at least up to this point, is largely cool with that.

While the appeals court ruling could still make its way to the Supreme Court (a major reason ISPs backed Kavanaugh), there are still several other paths for net neutrality supporters here. One, the state laws should work to help rein in some of the industry's worst impulses. But the ruling could also foster support for the three page Save The Internet Act, which would fully restore the 2015 FCC rules as an act of Congress. That bill passed the House last year but was blocked by McConnell in the Senate, one of a million considerations up for voter contemplation during the looming elections.

Filed Under: ajit pai, dc circuit, deference, fcc, ftc, lifeline, net neutrality, pre-emption, public safety, states


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  • identicon
    Anonymous Coward, 1 Oct 2019 @ 12:05pm

    A very mixed ruling indeed.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Oct 2019 @ 12:14pm

    authority

    "the Court concludes that the Commission has not shown legal authority..."

    very slippery slope if courts start demanding that FCC prove its legal authority here.
    Ultimately there is no Constitutional authority for FCC to even exist, but fortunately few people and no courts notice such trivia.
    and what's all this sudden interest in States' Rights?

    reply to this | link to this | view in chronology ]

    • identicon
      A Guy, 1 Oct 2019 @ 1:18pm

      Re: authority

      It's Constitutional because of the Interstate Commerce Clause

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Oct 2019 @ 2:19pm

      Re: authority

      "and what's all this sudden interest in States' Rights?"

      States rights - no longer just for bigots.

      When the federal government abdicates their sworn duties it is then up to the states to provide a governing body.

      reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 1 Oct 2019 @ 12:18pm

    Ultimately there is no Constitutional authority for FCC to even exist

    LOL.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 1 Oct 2019 @ 12:32pm

    An option, but not a reasonable one

    The Supreme Court's decision in [the Supreme Court's Brand X decision] compels us to affirm as a reasonable option the agency's reclassification of broadband as an information service based on its provision of Domain Name System ("DNS") and caching.

    Under the Administrative Procedure Act, a regulator has to base major policy decisions on solid justifications and hard data.

    That they can do something isn't the issue, the problem is they did so based upon nothing but smoke and lies, and as such this time around it very much was not a 'reasonable' option, not to mention in violation of the law that requires that major changes(and reclassifying broadband most certainly counts, otherwise the debacle during Wheeler's time would have been much quicker) be based upon fact and evidence, none of which Pai presented.

    Just because a particular act may be reasonable under certain circumstances does not mean it's reasonable under all circumstances.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Oct 2019 @ 1:05pm

    We note that the 2018 Order alluded to several “information processing functionalities inextricably intertwined with the underlying service” besides DNS and caching, such as “email, speed test servers, backup and support services, geolocation-based advertising, data storage, parental controls, unique programming content, spam protection, popup blockers, instant messaging services, on-the-go access to Wi-Fi hotspots, and various widgets, toolbars, and applications.”

    Um, what? None of those things are "inextricably intertwined" with broadband. For example, I can still have email on dialup, and broadband would still exist even if email didn't.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Oct 2019 @ 2:12pm

      Re:

      And it would be easy to say "OK, net neutrality only applies to the broadband part and ISPs can run the provided DNS and email 'information services' how they like". Wasn't there recently an ISP trying to claim something similar to escape regulation, like "we provide one federally regulated service, so states can't complain about our unregulated services"?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Oct 2019 @ 4:52am

      Re:

      And DNS isn't an information service, it's a phonebook. Beyond that, DNS would still exist if the major ISPs all disappeared tomorrow. Anyone can run a resolver. The argument is a load of crap.

      reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 1 Oct 2019 @ 1:17pm

    Tears of shame

    And yet everyone that is opposed to Net Neutrality (really a free and open internet) because it is "Government Control" wants MORE government control via copyright. Hilarious.

    Maybe we wouldn't need net neutrality laws if we had real broadband competition. But we don't have any competition, and our ISP's have a free hand to screw with our browsing, services and data.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Oct 2019 @ 2:35pm

    and things are only set to get worse....

    So bend over, grab your ankles, and brace yourself.

    Broadband prices will double in the next year, while speeds remain flat or actually decrease as companies stop maintenance activities.

    Additional fees (data cap fees, privacy protection fees, grab your ankle fees, you name it the big 3 will make up a fee and gladly charge you extra for the same thing you had last year) will skyrocket as the corps work to force the rest of the workforce into indentured servitude (following Amazon's "only hire part time employees and fire them if they miss time while attending a funeral" approach that's making the billions for the Bezos).

    Next will come automation of routine jobs, further pushing the actual workers into more part time situations (we only need employees to work from 1pm to 3pm and 6pm to 8pm, to clean up after the automated workforce is charging for the next shift).

    The 1% will get 1%ier while the rest of the population will move closer and closer to indentured servitude (aka slavery).

    This is before the Employee wars break out, and employees have to start defending themselves and fighting off potential takeovers (of their individual job, not the company) where the corporations throw 2 people in the positions and say, sorry only 1 of you will get the job at the end of the day, you figure it out (they will be taping and making a reality TV show out of the brawls that will erupt as groups of co-workers fight to keep their favorite co-workers employed, but I'm sure there would be NO VIOLENCE, the clubs, bats, and tazers are just for show, how did we know that the employees would use them on each other? We can't be held liable, we are a corporation, not a person...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Oct 2019 @ 4:29pm

    This should serve as a prime example of why we shouldn't allow regulatory or executive actions to serve as the basis for massive policy shifts.

    They're too easy to change at a later date.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Oct 2019 @ 5:09pm

    worst possible outcome for isp/ajit pai

    Instead of zero or just one set of net neutrality rules,
    the ISPs are now staring at the possibility of tens to hundreds of net neutrality rules. All thanks to the lead architect of this fiasco, Ajit Pai.
    No revolving door for you, Ajit Pai.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 2 Oct 2019 @ 12:23pm

      Re: worst possible outcome for isp/ajit pai

      No revolving door for you, Ajit Pai.

      If only, if he isn't employed in some manner or another by one of the telecom companies within a month(if not a week) of leaving office I will be extremely surprised.

      That this particular move seems to have backfired on him/them doesn't mean he hasn't been very good for them while in office to date.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 1 Oct 2019 @ 5:36pm

    Sucks to be you, Richard Bennett!

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      icon
      Richard Bennett (profile), 4 Oct 2019 @ 10:21am

      Read page 30 of the opinion

      From the opinion:

      "But if DNS is “extraneous” to operating the network,
      it is at least debatable whether DNS is used in “the
      management, control, or operation of a telecommunications
      system or the management of a telecommunications service.”
      Amici for the Commission make related points, observing that
      “[a]n app’s DNS translation transaction ends before the BIAS
      transmission begins,” “DNS transactions do not provide the
      BIAS provider with information about the best path to the
      destination,” and they “do not have the power to either
      optimize or impair the BIAS provider network.” Bennett et al.,
      Amicus Br. 13. Thus it is at least reasonable not to view DNS
      as a network management tool. Id. at 13–14. Granted, Jordan
      and Peha remark that running DNS helps an ISP “reduce[] the
      volume of DNS queries passing through its network.”
      Jordan/Peha Amicus Br. 18. But in the deferential posture of
      Chevron the points quoted above by Jordan/Peha seem in part
      to support the Commission’s reading of the record (consistent
      with Bennett et al.) as showing that, whereas “little or nothing
      in the DNS look-up process is designed to help an ISP
      ‘manage’ its network,” 2018 Order ¶ 36, DNS is “essential to
      providing Internet access for the ordinary consumer,” id., for
      whom “DNS is a must,” id. ¶ 34 (quoting Brand X, 545 U.S. at
      999)."

      It's good to be cited approvingly by the court.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Oct 2019 @ 10:25am

        Re:

        That doesn't mean you are correct or right.

        Try again Richard.

        reply to this | link to this | view in chronology ]

        • icon
          Richard Bennett (profile), 5 Oct 2019 @ 10:46am

          Read Page 29 of the opinion too

          The court says who's right and who's wrong in the portion immediately preceding what I've already quoted; it starts on page 29.

          "Finally, an argument made by amici on behalf of
          Petitioners as to DNS arguably aligns with claims made by the
          Commission’s amici and so may work in the agency’s favor.
          Petitioners’ amici assert in the context of functional integration
          (an issue to which we turn in Part I.C.4) that broadband Internet
          access is not functionally integrated with DNS because
          broadband access works perfectly well without DNS. “Internet
          architects deliberately created DNS to be entirely independent
          from the IP packet transfer function,” Jordan/Peha Amicus Br.
          17, and “a BIAS provider’s DNS is an extraneous capability

              • not required for the core service,” id. at 17–18 (emphasis
                added)."

          The court is saying that Peha/Jordan (both former chief technologists for pro-NN FCCs) characterize DNS the same way I do; the court takes the consistency of our views as evidence of their correctness.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 6 Oct 2019 @ 10:53am

            Re:

            And I say again, that still does not make you (or the court) correct or right. Yes, the internet could more less function without DNS. That doesn't make their overall ruling correct. And it is quite apparent that the only reason they ruled in the FCC's favor was prior precedent of the scope of the agency's authority. NOT on the physics or technical merits of the argument.

            I dare you to answer me this: if broadband internet service is an information service (which includes the OSI stack), then what is the telecommunications service over which it is provided?

            Try again Richard.

            reply to this | link to this | view in chronology ]

            • icon
              Richard Bennett (profile), 6 Oct 2019 @ 11:57am

              The OSI stack?

              My, what an intriguing comment/question you construct, dear Coward. Amici for both sides of the question agree that DNS is fundamentally independent of the transmission component of broadband Internet service, yet you disagree. What is your authority and what is your reasoning?

              Internet service doesn't use OSI protocols, it uses the IETF stack: IP, TCP, UDP, BGP, HTTP, and DNS. This is explained in excruciating detail in amici for the petitioners and for the respondents. The transmission component of the Internet - and of the broadband Internet service offered by ISPs - is provided at the Data Link layer by systems such as fiber and copper Ethernet, DSL, DOCSIS, Wi-Fi, LTE, and xPON.

              The order explains that the deciding issue in the definition of telecommunications service is the role played by the transmission component. ISPs offer a service to the public that includes a transmission component as well as an information service component. The legal definition of an Information Service is “generating, acquiring, storing, transforming, processing,
              retrieving, utilizing, or making available information”; ISPs offer transmission only to process information and make it available.

              Internet Protocol itself is simply a routing function; IP depends on actual transmission technologies to move information from point A to point B because it cannot perform transmission on its own.

              Does this help?

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 7 Oct 2019 @ 7:39am

                Re: The OSI stack?

                Elizabeth Pierce says hi, Dick.

                reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 7 Oct 2019 @ 8:35am

                Re:

                My, what an intriguing comment/question you construct, dear Coward. Amici for both sides of the question agree that DNS is fundamentally independent of the transmission component of broadband Internet service, yet you disagree. What is your authority and what is your reasoning?

                Reading comprehension and intellectual honesty. You lack it. From my comment:

                Yes, the internet could more less function without DNS.

                Nowhere did I imply otherwise. You even fail at lying and twisting words.

                Internet service doesn't use OSI protocols, it uses the IETF stack: IP, TCP, UDP, BGP, HTTP, and DNS.

                Now who is saying that broadband requires DNS, hm?

                The transmission component of the Internet - and of the broadband Internet service offered by ISPs - is provided at the Data Link layer by systems such as fiber and copper Ethernet, DSL, DOCSIS, Wi-Fi, LTE, and xPON.

                Which is part of the OSI stack and requires the physical layer below it to even exist and does NOT include any of the protocols you mentioned. Those are included in the Transport Layer, 2 layers above the Data Link Layer.

                Regardless of that, yes, internet service does use the OSI STACK, not just protocols. For the uninformed and intellectually dishonest, this includes the following:

                Layer 1: Physical. (Copper/fiber cables, voltage, signal timing, wireless frequency, etc...)
                Layer 2: Data Link Layer (IEEE 802 standards, MAC, etc...)
                Layer 3: Network (means of actually sending along packets, routers, switches, etc...)
                Layer 4: Transport (this is the layer where TCP/IP and other protocols, such as DNS, come into play)
                Layer 5: Session (basically the conversation between two computers)
                Layer 6: Presentaion (does conversion between raw network data and something useable by applications)
                Layer 7: Application (The part that the user actively sees and interacts with; web browsers, Outlook, etc...)

                The order explains that the deciding issue in the definition of telecommunications service is the role played by the transmission component. ISPs offer a service to the public that includes a transmission component as well as an information service component. The legal definition of an Information Service is “generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information”;

                None of which an ISP does. When I make a request out to the internet my ISP does not generate the content, it doesn't acquire the content (my computer does that), it doesn't store the content (the web host does that), it damn well better not transform the content, it doesn't process the content (I and my computer do that), it doesn't retrieve the content (my web browser does that), it doesn't utilize the content (at least not in any respect that would affect my ability to use the internet), and it does NOT make the information available.

                So explain why they should be considered an information service again?

                Internet Protocol itself is simply a routing function; IP depends on actual transmission technologies to move information from point A to point B because it cannot perform transmission on its own.

                Very good, you can actually tell the truth for once. But that has jack all to do with an ISP being considered an information service, since in order to even make use of IP, you have to have physical connections, which is what my ISP provides. And routing is not considered an information service, otherwise every landline POTS phone provider would be considered an information service.

                Does this help?

                Nope.

                Try again Richard.

                reply to this | link to this | view in chronology ]

                • icon
                  Richard Bennett (profile), 7 Oct 2019 @ 10:05am

                  How cute!

                  Since you're struggling to understand network architecture and have got a number of wrong ideas about it (the OSI model doesn't have a layer for wires, of course), let me recommend a good book for you: John Day, Patterns in Network Architecture: A Return to Fundamentals, 2008.

                  It's the single most definitive text on the subject ever written. Professor Day is a co-author of my Amicus brief (the one that you don't understand).

                  Does this help?

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 7 Oct 2019 @ 10:30am

                    Re:

                    Since you're struggling to understand network architecture and have got a number of wrong ideas about it

                    Name one.

                    (the OSI model doesn't have a layer for wires, of course)

                    ..........................wut?

                    You

                    are

                    literally

                    wrong.

                    It's the single most definitive text on the subject ever written.

                    Considering you don't even know what the OSI model encompasses, you'll excuse me if I don't take your word for it.

                    Does this help?

                    That's an even bigger nope than before.

                    Try again Richard.

                    reply to this | link to this | view in chronology ]

                    • icon
                      Richard Bennett (profile), 7 Oct 2019 @ 11:05am

                      Re: Re:

                      Layer 1 of the OSI model encompasses bit encoding.

                      Get back with me after you've done your reading.

                      reply to this | link to this | view in chronology ]

                      • identicon
                        Anonymous Coward, 7 Oct 2019 @ 11:13am

                        Re: Re: Re:

                        I have done my reading and provided links to a small sample of said reading. I can provide more. Can you provide any link where it says Layer 1 does not encompass the physical connections?

                        From just one of the links I provided:

                        The physical layer consists of the electronic circuit transmission technologies of a network. It is a fundamental layer underlying the higher level functions in a network, and can be implemented through a great number of different hardware technologies with widely varying characteristics.

                        Try again Richard.

                        reply to this | link to this | view in chronology ]

              • icon
                Richard Bennett (profile), 7 Oct 2019 @ 1:00pm

                Information Service

                It occurs to me that the definition of Information Service I cited here is incomplete. Here's the whole sentence from the DC Circuit's opinion: "The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications * * * but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service." Thank you, drive through.

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 7 Oct 2019 @ 1:16pm

                  Re:

                  Which only reinforces the fact that broadband internet should be classified as a telecommunications service.

                  Try again Richard.

                  reply to this | link to this | view in chronology ]

                  • icon
                    Richard Bennett (profile), 7 Oct 2019 @ 5:08pm

                    Re: Re:

                    LOL!

                    reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 7 Oct 2019 @ 5:38pm

                      Re: Re: Re:

                      I see you've moved onto the "bargaining" phase of Shiva's failure-grief...

                      reply to this | link to this | view in chronology ]

                      • identicon
                        Anonymous Coward, 8 Oct 2019 @ 7:43am

                        Re: Re: Re: Re:

                        Nah.

                        He has just realized that he tried and failed to pull a fast one on an internet rando, gambling that they didn't know even the most basic of basics of network architecture. Then the internet rando schooled him on it.

                        Now he's got nothing left, but he can't admit defeat because that would undermine the narrative he is being paid to push by big ISPs. So all he can do is just laugh nervously and slink away as he always does when he gets owned.

                        reply to this | link to this | view in chronology ]

                        • icon
                          Richard Bennett (profile), 8 Oct 2019 @ 10:00am

                          Re: Re: Re: Re: Re:

                          Oh yeah, that's totally what happened here.

                          reply to this | link to this | view in chronology ]

                          • identicon
                            Anonymous Coward, 8 Oct 2019 @ 10:55am

                            Re: Re: Re: Re: Re: Re:

                            Yep, totally is Mr. "internet service doesn't use the OSI model and the OSI model doesn't have a layer for wires".

                            By the by, you still haven't answered my original question:
                            "If broadband internet service is an information service (which includes the OSI stack), then what is the telecommunications service over which it is provided?"

                            Try again Richard.

                            reply to this | link to this | view in chronology ]

                            • icon
                              Richard Bennett (profile), 8 Oct 2019 @ 11:37am

                              Re: Re: Re: Re: Re: Re: Re:

                              LOL, this is such a clueless question I don't even know where to start answering it. Ever since America's first consumer-facing ISP (The World) opened its doors in 1989, ISPs have been classified as enhanced facilities/information services exempt from telecommunications regulation. This was the case when the 1996 Telecom Act was written, and the only references it makes to ISPs acknowledges this well-understood status.

                              When DSL was introduced, it was simply a transmission service that did not include any ISP functionality. It was actually created for VoD, a market that failed to materialize as it was conceived in the 1990s. Cable modem was different because it was conceived as the transmission layer for an ISP service.

                              While telcos offered DSL as a pure transmission service connecting the customer premise to the telco CO, cable modem service was never offered that way. Broadband Internet Service is a unitary offering that includes the DOCSIS transmission component, but it is more than DOCSIS because it interconnects with the Internet, provides DNS, caching, anti-virus, PC tech support, and other bells and whistles.

                              This is elementary history that is easily verified.

                              It's also well understood that the IETF model of protocol layering doesn't follow a 7 layer model like OSI just as it's understood that a cable connector is not a telephone pole.

                              LOL.

                              reply to this | link to this | view in chronology ]

                              • identicon
                                Anonymous Coward, 8 Oct 2019 @ 2:09pm

                                Re: Re: Re: Re: Re: Re: Re: Re:

                                This is the part where we throw our heads back and laugh. Ready?

                                BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!!!!

                                Alright settle in boys and girls because class is once again in session!

                                this is such a clueless question I don't even know where to start answering it

                                I would pose that it's not because it's a clueless question (because it isn't and I'll get to why in a bit) but because you can't answer it honestly without admitting you are lying.

                                Ever since America's first consumer-facing ISP (The World) opened its doors in 1989,

                                Actually, Telenet, started in 1974, is considered to be the first ever "consumer-facing ISP". "The World" is the second. Now granted the network being accessed by the two changed a bit but still, Telenet is widely considered the first ISP.

                                ISPs have been classified as enhanced facilities/information services exempt from telecommunications regulation. This was the case when the 1996 Telecom Act was written, and the only references it makes to ISPs acknowledges this well-understood status.

                                This is demonstrably false. Original ISPs provided their service as dial-up over existing POTS telephone lines. POTS telephone lines were and are classified under Title II and when dial-up was first introduced, Title II was defacto applied to it as well. Same goes for DSL. It wasn't until 2005 that the FCC re-classified DSL as an information service (2002 for cable). You can check the FCC public records if you don't believe me.

                                When DSL was introduced, it was simply a transmission service that did not include any ISP functionality.

                                I'm curious to know what you deem to be "ISP functionality". ISP stands for "Internet Service Provider" and DSL "provides internet service", or in layman's terms "access to the internet". Seems to me that any company that serves DSL is an ISP and provides ISP functionality such as IP addressing your modem. They also provide DNS in case you aren't savvy or don't care enough to specify your own.

                                It was actually created for VoD, a market that failed to materialize as it was conceived in the 1990s.

                                Irrelevant.

                                Cable modem was different because it was conceived as the transmission layer for an ISP service.

                                I'm sorry, what? Cable and DSL do the exact same things. They give end users access to the internet, via modem that gets assigned an IP address on the broader network. The physical medium may be different (phone lines vs coax) but it's doing the exact same thing.

                                While telcos offered DSL as a pure transmission service connecting the customer premise to the telco CO, cable modem service was never offered that way.

                                Irrelevant and partially false. DSL did originally offer DNS after all. So if you're going to say that DNS is what makes it an information service, then your argument flies apart.

                                Broadband Internet Service is a unitary offering that includes the DOCSIS transmission component

                                That's not true at all. DOCSIS only applies to cable internet, and according to the FCC, broadband internet includes DSL, cable, fiber, and satellite, among others And again, DSL includes DNS.

                                it is more than DOCSIS because it interconnects with the Internet

                                Yeah, so does dial-up and DSL. That's kind of the whole point of "internet service/access".

                                provides DNS

                                So does every single other internet providing service.

                                caching

                                Which they can only do with non-encrypted content. Since most of the web is now encrypted, the only way they can do caching is if the content provider sets it up for them.

                                anti-virus, PC tech support, and other bells and whistles.

                                .....BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!!!!

                                Anti-virus and PC tech support from ISPs has and will likely continue to be a joke. Very few people actually use them unless they either A) really don't know anything about computers or B) have no other option. Seriously, I think I only know 1 or 2 people that actually have AV from their ISP and nobody that I know uses their tech support for anything other than "the internet access you provide to me is not working, fix it".

                                Regardless of all that, all those "extra services" are just that. Extra. They are completely and totally separate from the internet access you get from your ISP. They could strip them all out and probably 99% of people wouldn't even notice.

                                This is elementary history that is easily verified.

                                You're right. It is. So why are you lying about literally all of it? Bad look there.

                                It's also well understood that the IETF model of protocol layering doesn't follow a 7 layer model like OSI

                                You are misleading and trying to redirect the conversation. I'm not talking about IETF, I'm talking about the OSI model. And just in case you're getting hung up on the never used OSI Protocol Stack, no I'm not talking about that. I'm talking about the OSI reference model that every network administrator is taught in Networking 101 as a way of understanding how everything works. The IETF model (properly TCP/IP because IETF is just an acronym for the Internet Engineering Task Force) takes place at layers above the physical hardware layers and is more akin to software or a programming language.

                                So now, understanding that internet access REQUIRES physical cabling and other hardware, not just the TCP/IP protocol stack, explain to me what the telecommunications service is over which it is provided. And the reason why I ask this is because the law defines an information service as something that is provided via a telecommunications service. In other words, you can have a telecommunications service without an information service, but you can't have an information service without a telecommunications service.

                                Therefore, if broadband internet is properly an information service, what is the telecommunications service it is transmitted by? Hm?

                                LOL.

                                And you still got nothing.

                                Class dismissed.

                                Try again Richard.

                                reply to this | link to this | view in chronology ]

                                • icon
                                  Richard Bennett (profile), 8 Oct 2019 @ 2:45pm

                                  The laughs keep on coming...

                                  So Telenet was a consumer facing ISP in 1974 BEFORE THE FUCKING INTERNET WAS EVEN INVENTED? Wow, that's a level of stupid unsurpassed in human history.

                                  Telenet was a packet-switched data network that provided a business service, chiefly for computer time-sharing. In the 1990s, it was used by the so-called dial-up ISPs to bypass telco long distance service. AOL customers dialed a local number owned by Telenet; it carried data to Reston, VA, where the AOL servers were locating.

                                  DSL is simply a layer 2 data link, equivalent to DOCSIS. Both can be used as part of an Internet service, but they have other uses as well. DOCSIS, for example, also carries phone calls and data for security services offered by the cable companies.

                                  The Internet architecture has three layers: the IP layer, the TCP/UDP transport layer, and the telnet/ftp/email/http layer. That's it. Three is not seven.

                                  Come on, give me some more laughs!

                                  LOL.

                                  reply to this | link to this | view in chronology ]

                                  • identicon
                                    Anonymous Coward, 8 Oct 2019 @ 3:15pm

                                    Re:

                                    So Telenet was a consumer facing ISP in 1974 BEFORE THE FUCKING INTERNET WAS EVEN INVENTED? Wow, that's a level of stupid unsurpassed in human history.

                                    Note I said:

                                    Now granted the network being accessed by the two changed a bit but still, Telenet is widely considered the first ISP.

                                    You're free to be delusional, but hey, whatever floats your boat.

                                    Telenet was a packet-switched data network that provided a business service, chiefly for computer time-sharing. In the 1990s, it was used by the so-called dial-up ISPs to bypass telco long distance service. AOL customers dialed a local number owned by Telenet; it carried data to Reston, VA, where the AOL servers were locating.

                                    So much irrelevance in one statement.

                                    DSL is simply a layer 2 data link, equivalent to DOCSIS.

                                    Tsk tsk, Richard, Richard, Richard. You should know better than to try that sort of a trap with me. DSL (as a transmission method, not the overall service) is, indeed, similar in function to DOCSIS. However the term is also used to generally apply to a specific type of internet access. If you don't like it, then I suggest you take it up with the FCC.

                                    The Internet architecture has three layers: the IP layer, the TCP/UDP transport layer, and the telnet/ftp/email/http layer. That's it. Three is not seven.

                                    We aren't talking about the internet. We are talking about internet ACCESS. Though, if the internet ONLY has those three layers, then it should work fine if we removed all the modems, routers, switches, cables, servers, and other computer hardware from the world, right?

                                    Oh and by the by, what happened to the internet working off the TCP/IP model? I believe, if I'm not too much mistaken, that the TCP/IP model has no less than FOUR layers (link, internet, transport, application). Not three. And the OSI reference model does have 7 layers. You can look it up. But by all means, do continue with your insistence that the internet can work perfectly fine without any underlying hardware. I'll continue to chuckle in your general direction.

                                    Come on, give me some more laughs!

                                    A panda walks into a bar and orders some food. Once it finishes eating, it stands up, pulls a gun and shoots the man next to him. Then it leaves the bar. Another customer starts freaking out about a panda shooting a guy. The bartender shrugs and tells him to look up the definition of a panda in the dictionary. The customer does so and finds this entry: "Panda. Large black-and-white bear-like mammal, native to China. Eats, shoots and leaves."

                                    LOL.

                                    And still nothing.

                                    Try again Richard.

                                    reply to this | link to this | view in chronology ]

                                    • icon
                                      Richard Bennett (profile), 8 Oct 2019 @ 3:43pm

                                      Re: Re:

                                      LOL, look up The World in Wikipedia, the authority on conventional wisdom. Telenet never connected consumers to the Internet, it connected them to service providers.

                                      DSL (as a transmission method, not the overall service) is, indeed, similar in function to DOCSIS. However the term is also used to generally apply to a specific type of internet access.

                                      This thread is about a court case. In law, as in engineering, words are used according to their precise and actual meanings. In reality, AT&T offered a DSL service to its customers before it offered any kind of Internet service.

                                      LOL!

                                      reply to this | link to this | view in chronology ]

                                      • identicon
                                        Anonymous Coward, 8 Oct 2019 @ 4:46pm

                                        Re: Re: Re:

                                        look up The World in Wikipedia, the authority on conventional wisdom.

                                        Obviously you failed to read the entry. From the first paragraph:

                                        It was the second commercial ISP

                                        Still working on that reading ability I see.

                                        This thread is about a court case.

                                        Yes, and?

                                        In law, as in engineering, words are used according to their precise and actual meanings.

                                        And DSL is a method of internet access similar to cable, fiber, and satellite. This is well established by the FCC and the rest of world, excluding yourself. Referring to DSL as a method of internet access is consistent with it's precise and actual meaning, of which there are two.

                                        In reality, AT&T offered a DSL service to its customers before it offered any kind of Internet service.

                                        Irrelevant but also [Citation needed].

                                        LOL!

                                        Twice nothing is still nothing.

                                        And you still have not answered my question:
                                        "If broadband internet service is an information service (which includes the OSI stack), then what is the telecommunications service over which it is provided?"

                                        Try again Richard.

                                        reply to this | link to this | view in chronology ]

                                        • icon
                                          Richard Bennett (profile), 8 Oct 2019 @ 5:44pm

                                          Re: Re: Re: Re:

                                          I find it useful to read entire sentences before drawing conclusions. I said The World was the first consumer-facing ISP in the US. Wikipedia says The World was the second commercial ISP *in the world" after some outfit in Australia. Wikipedia does not say Telenet was the first; only you hallucinate that.

                                          And no, DSL doesn't reach "the Internet"; it reaches an ISP who reaches the Internet via its own lines. Thus has it ever been. But if you want to redefine DSL to mean "swiss cheese" not only does it become part of a ham sandwich, it resembles your thought process.

                                          LOL!

                                          reply to this | link to this | view in chronology ]

                                          • identicon
                                            Anonymous Coward, 8 Oct 2019 @ 6:11pm

                                            Re: Re: Re: Re: Re:

                                            I find it useful to read entire sentences before drawing conclusions.

                                            So do I. You should try it sometime.

                                            I said The World was the first consumer-facing ISP in the US. Wikipedia says The World was the second commercial ISP in the world"*

                                            The two are not mutually exclusive and Telenet did predate The World in providing publicly available access to a packet switched network.

                                            Now, that said, I am willing to give you that The World was the first ISP of the internet in its current and more modern incarnation. However Telenet was the first "ISP" for the commercially available version of ARPANET, which predated the internet as we know it. I'd say we're both right, depending on what criteria you want to use.

                                            Wikipedia does not say Telenet was the first; only you hallucinate that.

                                            I never said Wikipedia did say it, though you can read about what it does say about it here where it does say it was the first to provide public access to a packet switched network. Yes, that's not the same as our current internet but not too far off. Also there is this and that does come up as the authoritative answer when doing a google search.

                                            Again, I'm willing to give you that The World is the first ISP of our modern internet as we know it. But if that's all you've got...eh. The rest of my assertions still stand.

                                            And no, DSL doesn't reach "the Internet";

                                            So all the people who have DSL as their link to the internet are accessing what then? This is a disingenuous statement.

                                            it reaches an ISP who reaches the Internet via its own lines.

                                            So just like cable, fiber, satellite, etc.... Unless you run your own ISP from your own home and have your own backbone, you never skip going through an ISP's own network to get to the internet.

                                            But if you want to redefine DSL to mean "swiss cheese" not only does it become part of a ham sandwich, it resembles your thought process.

                                            That's an interesting position to take. Considering the FCC defines DSL as a broadband internet provider, exactly the same as cable, fiber, and satellite. Tell me, are you saying that the FCC is, dare I say it, wrong?

                                            LOL!

                                            Thrice nothing....yadda yadda.

                                            And you still have not answered my question:
                                            "If broadband internet service is an information service (which includes the OSI stack), then what is the telecommunications service over which it is provided?"

                                            Try again Richard.

                                            reply to this | link to this | view in chronology ]

                                            • icon
                                              Richard Bennett (profile), 8 Oct 2019 @ 7:29pm

                                              Re: Re: Re: Re: Re: Re:

                                              That's a lot of words to avoid admitting you misread my statement about The World being the first consumer-facing Internet service in the US.

                                              Just as you misrepresented my claim about The World, you've misread the legal definition of Information. So let's go back to the original statement before it was transformed into swiss cheese:

                                              The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications ...but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

                                              This does not say Information Service must be provided over a telecommunications "Service" with the trappings thereof, such as its own SKU and price tag. In the real world, Internet service is provided over a number of distinct and different telecommunications/transmission facilities (DSL, Ethernet, Wi-Fi, LTE, et al.) None of these facilities define the Internet Service, but they all help make it available. The Title II lobby wants the transmission facility to swallow all the bits that move over it. That's certainly one reading of the law, but the DC Circuit, the Supreme Court, and the FCC have said there's another reading that's at least as good.

                                              So there you have it, you've proved you can't read, that you lack manners, and that you have too much time on your hands. Good luck finding work, and you have now have the last word.

                                              LOL!

                                              reply to this | link to this | view in chronology ]

                                              • identicon
                                                Anonymous Coward, 8 Oct 2019 @ 9:00pm

                                                Re: Re: Re: Re: Re: Re: Re:

                                                That's a lot of words to avoid admitting you misread my statement about The World being the first consumer-facing Internet service in the US.

                                                I did not admit such a thing because that is not what I did. I read your statement perfectly well the first time. Note I didn't even address the US/world distinction in your original statement. I addressed an entirely different matter.

                                                Just as you misrepresented my claim about The World, you've misread the legal definition of Information.

                                                I have done no such thing.

                                                This does not say Information Service must be provided over a telecommunications "Service" with the trappings thereof

                                                Actually, it does. I believe it is you who is "misreading" and/or misrepresenting the law here. The important part you are quite blatantly ignoring is this: "via telecommunications". It's right there in the text you quoted. Here let me simplify it for you:

                                                The term “information service” means the offering of a capability for [things] via telecommunications

                                                But by all means, please do continue to insist that information services can be provided and consumed over/via nothing.

                                                In the real world, Internet service is provided over a number of distinct and different telecommunications/transmission facilities (DSL, Ethernet, Wi-Fi, LTE, et al.)

                                                Is this your answer to my question? In that case then it would seem to me to be no different to how telephone service is provided over a number of distinct and different telecommunications/transmission facilities. Such as VoIP, POTS, SIP, PRI, etc... I guess we should reclassify telephone service as an information service as well then. You have Pai's ear, get him on that.

                                                Internet service alone gives me absolutely nothing else except a gateway to the rest of the network. It doesn't do anything that an information service is described as doing. It's no different than the water or electric company hooking my house up to the city water lines or power grid. And it's definitely no different than the telephone company giving me telephone service so that I can call whoever I want, whenever I want.

                                                Based on that response then, it would seem that anyone who buys an ethernet cable from BestBuy is a telecommunications service provider. No actual service or connection required.

                                                None of these facilities define the Internet Service, but they all help make it available.

                                                No more than VoIP, SIP, POTS, and PRI define telephone service but just help to make it available.

                                                The Title II lobby wants the transmission facility to swallow all the bits that move over it.

                                                No, they don't. And no one is suggesting such a thing. Stop putting words in people's mouths. No one is saying Title II should encompass the bits/data that traverses the network, just the connection service. Just like telephone, water, and electric service.

                                                That's certainly one reading of the law, but the DC Circuit, the Supreme Court, and the FCC have said there's another reading that's at least as good.

                                                No, actually the DC Circuit and the Supreme Court have merely affirmed the FCC's authority to classify internet service how they wish. They made ZERO determination as to whether it is actually an information service or telecommunication service. As I have explained previously and as stated in the ruling and this article. And two of the three judges made it quite clear they disagree as such. Pai is quite wrong in his determination of what kind of service it is.

                                                So there you have it, you've proved you can't read

                                                Well actually that would be you considering you did not, in fact, properly read what I wrote (or deliberately twisted it).

                                                that you lack manners

                                                Really? I thought I was being very polite throughout this whole conversation. I can, however, be impolite if that would make you feel better.

                                                and that you have too much time on your hands.

                                                Potentially true. Yet it is my time and I do with it as I please. And I please to point out your lies.

                                                Good luck finding work

                                                I am actually very gainfully employed as a network administrator.

                                                and you have now have the last word.

                                                I always do, Richard, I always do. (Also, check your grammar.)

                                                Try again Richard.

                                                reply to this | link to this | view in chronology ]

                        • identicon
                          Anonymous Coward, 8 Oct 2019 @ 6:19pm

                          Re: Re: Re: Re: Re:

                          Why can't it be both? The old thread shows that Bennett was quite vehemently declaring that Techdirt somehow lost the suit... just like the other trolls, John Smith and out_of_the_blue.

                          reply to this | link to this | view in chronology ]

                          • identicon
                            Anonymous Coward, 8 Oct 2019 @ 6:29pm

                            Re: Re: Re: Re: Re: Re:

                            I suppose that is possible. Mine is more fun though. :P

                            reply to this | link to this | view in chronology ]

                            • identicon
                              Anonymous Coward, 10 Oct 2019 @ 12:57am

                              Re: Re: Re: Re: Re: Re: Re:

                              Hard to rank against Masnick's experiences with Bennett in-person.

                              Bennett plays like a protagonist from Yandere Simulator...

                              reply to this | link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 7 Oct 2019 @ 10:07pm

                      Re: Re: Re:

                      Still got nothing I see.

                      Try again Richard.

                      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Oct 2019 @ 8:28am

    like trees

    federally illegal
    locally legal
    Pick a side already. I bet stuff like this (dual laws) happens for case study and statistics purposes...e.g.'Since pot was made legal in several states several years ago, the crime rates in those states has skyrocketed. Thus, the DOJ has appealed to the Supreme Court to make marijuana illegal both Federally and Locally in all 50 states.'

    reply to this | link to this | view in chronology ]

  • identicon
    Robert Beckman, 2 Oct 2019 @ 1:11pm

    The wrong problem

    This annoys me - both the FCC, and the states trying to limit markets, because both of them are fighting the wrong problem.

    The problem is monopolistic control of internet endpoints which leads to monopoly abuse.

    But the reason there are local monopolies is because of local regulation itself, both local cable companies (with hard legislative monopolies) and through structural regulatory monopolies, like pole attachment.

    What the FCC should have done was preempt all of those regulations as infringements on interstate commerce (which is easily within the federal power), rather than the open internet orders which left all of the structural monopolies in place but told them they couldn’t do certain kinds of abuses while leaving open other abuses.

    But the states aren’t any better, because they could preempt their own anti-competitive monopoly regulations themselves, rather than trying to enforce the FCCs mis-aimed solution.

    reply to this | link to this | view in chronology ]

    • icon
      Richard Bennett (profile), 4 Oct 2019 @ 11:22am

      Re: The wrong problem

      Net neutrality fans argue that competition alone doesn't solve their problem, which is cosmetic practices of ISPs that they don't understand. Europe has robust retail competition for Internet service thanks to DSL unbundling, but ISPs have a history of doing things NN fans don't like. So they pressured the EC to adopt market-wide regulations banning fast lanes, etc. These regulations haven't helped Europe become a player in the global market for Internet-based services, of course.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Oct 2019 @ 12:50am

        Re: Re: The wrong problem

        Fuck over any emergency services today, Bennett?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Oct 2019 @ 8:45am

        Re: Re:

        Net neutrality fans argue that competition alone doesn't solve their problem, which is cosmetic practices of ISPs that they don't understand.

        Ha. Lol. This from the guy who says the internet does not use the OSI stack at all. Who is it that doesn't understand what they are talking about?

        Europe has robust retail competition for Internet service thanks to DSL unbundling

        No, they have it thanks to local-loop unbundling which includes cable and fiber, not just DSL. But thanks for playing.

        but ISPs have a history of doing things NN fans don't like.

        No, they have a history of doing things NOBODY likes. Like secretly putting super cookies on your device so they can track you on any site that you can't delete. Or throttling your video streaming. Or blocking your entire application from working online. Or stuffing your bill with nonsense charges (granted that last one isn't really an NN thing).

        So they pressured the EC to adopt market-wide regulations banning fast lanes, etc.

        Because fast lanes are dumb, don't make sense, and are just a greedy money grab and nobody wants to pay MORE just to line somebody else's pocket, just to get the same level of service they were getting before.

        These regulations haven't helped Europe become a player in the global market for Internet-based services, of course.

        Not for internet-based services (at least not as big as Google), but they have damn faster and cheaper internet service than the US. Which is the point, not whatever point you are trying to shoehorn into the conversation.

        Try again Richard.

        reply to this | link to this | view in chronology ]

        • icon
          Richard Bennett (profile), 7 Oct 2019 @ 10:11am

          Error!

          In general, only DSL is unbundled across Europe. Shared access to cable modem is technical infeasible and exclusive access to FTTH is commonly offered as an inducement for ISPs to invest.

          You should read my paper, G7 broadband dynamics: How policy affects broadband quality in powerhouse nations, 2014. It documents the effects of policy choices in the US, Canada, Japan, Germany, UK, France, and Italy.

          Does this help?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 7 Oct 2019 @ 10:59am

            Re:

            In general, only DSL is unbundled across Europe.

            I've heard differently. Got sauce to back it up?

            But even if that is true, unbundling DSL has resulted in faster and cheaper internet speeds in the EU compared to the US. Even if you are right on this one technical detail, my overall point still stands.

            Shared access to cable modem is technical infeasible

            [Citation very much needed.]

            exclusive access to FTTH is commonly offered as an inducement for ISPs to invest.

            Who said anything about exclusive access?

            You should read my paper

            Until you can get your facts straight and stop lying every other word, I'll take a hard pass.

            Does this help?

            Still nope.

            Try again Richard.

            reply to this | link to this | view in chronology ]


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