The Federal Communications Commission’s plan to gut net neutrality rules and deregulate the Internet service market may hinge on the definition of the word “broadband.”
In February 2015, the FCC’s then-Democratic leadership led by Chairman Tom Wheeler classified broadband as “telecommunications,” superseding the previous treatment of broadband as a less heavily regulated “information service.” This was crucial in the rulemaking process because telecommunications providers are regulated as common carriers under Title II of the Communications Act, the authority used by the FCC to impose bans on blocking, throttling, and paid prioritization.
Thus, when the FCC’s new Republican majority voted on May 18 to start the process of eliminating the current net neutrality rules, the commission’s Notice of Proposed Rulemaking (NPRM) also proposed redefining broadband as an information service once again.
To make sure the net neutrality rollback survives court challenges, newly appointed FCC Chairman Ajit Pai must justify his decision to redefine broadband less than three years after the previous change. He argues that broadband isn’t telecommunications because it isn’t just a simple pipe to the Internet. Broadband is an information service because ISPs give customers the ability to visit social media websites, post blogs, read newspaper websites, and use search engines to find information, the FCC’s new proposal states. Even if the ISPs don’t host any of those websites themselves, broadband is still an information service under Pai’s definition because Internet access allows consumers to reach those websites.
FCC gets benefit of the doubt
Telecommunications, as defined by Congress in the Communications Act, transmits information of the user’s choosing to and from endpoints specified by the user, without making any changes to the user’s information.
Pai’s claim that broadband isn’t telecommunications might not make sense to consumers, who generally use their Internet connections to access websites and online services offered by companies other than their ISPs, as a TechCrunch article recently argued. But courts have granted the FCC wide latitude on how it defines broadband over the years, essentially ruling that the FCC can classify Internet service however it wants.
Yes, there are plenty of instances in which courts have overturned FCC decisions, including a 2014 case that vacated an earlier attempt to impose neutrality rules. But when it comes to defining broadband as either an information service or telecommunications, judges have allowed FCC decisions to stand as long as the commission does a reasonably good job of justifying itself. That 2014 decision didn’t dispute the FCC’s authority to impose net neutrality rules or reclassify ISPs—rather, judges said the FCC could impose strict versions of net neutrality rules as long as it changed its classification of broadband.
Wheeler relied on the court system’s deference to FCC decisions on this matter when he successfully fought off a lawsuit filed by ISPs, and Pai is hoping that judges will grant the same courtesy after the FCC changes its mind.
Why Pai says broadband isn’t telecommunications
The Communications Act specifically defines telecommunications 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.” A telecommunications service is “the offering of telecommunications for a fee directly to the public.”
The 2015 FCC order that turned ISPs into common carriers and imposed net neutrality rules said that the statutory definition of telecommunications applies to broadband, as evidenced by how ISPs market their services to consumers, consumers’ expectations from broadband providers, and the way the networks operate.
ISPs might also offer information services such as e-mail and online storage, just like any other company that offers services over the Internet. But the FCC in 2015 said that ISPs’ information services are separate offerings from broadband. As a result, the Internet plan you buy from an ISP is a regulated common carrier service even though those same providers offer some services that aren’t strictly telecommunications.
Pai’s argument that broadband isn’t telecommunications doesn’t hinge on ISPs’ offering their own e-mail and online storage services. Instead, he says the core broadband offering itself isn’t telecommunications.
Landline and mobile voice service are both considered telecommunications by the FCC. But broadband isn’t telecommunications because “broadband Internet users do not typically specify the ‘points’ between and among which information is sent online,” Pai’s NPRM argues. It continues:
Instead, routing decisions are based on the architecture of the network, not on consumers’ instructions, and consumers are often unaware of where online content is stored. Domain names must be translated into IP addresses (and there is no one-to-one correspondence between the two). Even IP addresses may not specify where information is transmitted to or from because caching servers store and serve popular information to reduce network loads. In short, broadband Internet users are paying for the access to information “with no knowledge of the physical location of the server where that information resides.” We believe that consumers want and pay for these functionalities that go beyond mere transmission—and that they have come to expect them as part and parcel of broadband Internet access service.
Under this interpretation, the fact that consumers specify which websites they want to visit isn’t the same thing as specifying the “points” they want to reach. Broadband users would have to specify the IP addresses and caching servers they want to connect to in order for broadband providers to become the dumb pipe described in the definition of telecommunications.
Using search engines makes broadband an “information service”
An information service, by contrast, is defined in the Communications Act as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” The information service definition “includes electronic publishing, 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.”
The “capability” part of the definition is key, according to the FCC’s new argument, because broadband offers the capability to provide the functions described in the definition of information service. Pai’s NPRM thus argues that today’s broadband services meet the statute’s definition of an information service:
We believe that Internet service providers offer the “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online. Whether reading a newspaper’s website or browsing the results from a search engine, a broadband Internet user is able to acquire and retrieve information online. Whether it’s an address book or a grocery list, a broadband Internet user is able to store and utilize information online. Whether uploading filtered photographs or translating text into a foreign language, a broadband Internet user is able to transform and process information online. In short, broadband Internet access service appears to offer its users the “capability” to perform each and every one of the functions listed in the definition—and accordingly appears to be an information service by definition.
This article and images was originally posted on [Ars Technica] June 1, 2017 at 06:23AM
by JON BRODKIN