FCC boss: I get knocked down, but I get up again. You're never gonna keep net neutrality down

Re: I remember that Yes song

I knew that - but the Yes song was so much better.

Re: I haven't read the court's decision

Skip the decision, and ignore the court decision. Go back to the 1934 and 1996 Acts. Amazingly they are pretty clear for politi-speak. The court made no such invitation because the Acts do not authorize any such action.

Re: Appealing.

@Tom 13 - "Congress has explicitly decided ISP =/= common carrier."

Please read my more detailed post below but so far as I understand it, that is exactly the opposite - congress (through the Act) has not made an explicit ruling. That, when coupled with the Chevron doctrine applied by the courts, gives the FCC the power to make just such a decision (to classify ISPs as common carriers).

So, while you are correct to say that the FCC does not have the authority change the legislation, they do have the authority to interpret it and (as the supreme court put it) "fill the statutory gap":

The Commission has historically not subjected non-facilities-based information-service providers to common carrier regulation. That history suggests, in turn, that the Act does not unambiguously classify nonfacilities based ISPs as “offerors” of telecommunications. If the Act does not unambiguously classify such providers as “offering telecommunications,” it also does not unambiguously so classify facilities-based information-service providers such as cable companies; the relevant definitions do not distinguish the two types of carriers. The Act’s silence suggests, instead, that the Commission has the discretion to fill the statutory gap.

Reading through the Act, we see (p7):

• Telecommunications service = the offering of telecommunications, for a fee, to the public.
• Telecommunications carrier = provider of telecommunication services.
• Telecommunications carriers are subject to common carrier regulations.

Obviously, then, this all hinges on the definition of 'telecommunications', which is given as:

The term "telecommunications" means 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.

Quite simply, if cable broadband suppliers are ruled to be offering "telecommunications", then that will be subject to common carrier regulations.

It seems that the FCC approached the original decision (of how to classify cable broadband providers) from the desired end result, which was to promote growth and competition by not making the providers subject to common carrier regulations and, thus, they had to decide that such providers did not "[offer] telecommunications".

Personally, I think a fairly strong case can be made for classifying Internet traffic as 'telecommunications' but the fact, as noted by the Supreme Court, is that the Act does not do so explicitly and unambiguously and so that responsibility rests with the FCC.

The ruling by the Supreme Court in Brand X implies that if the FCC were to classify broadband providers as 'Telecommunications Carriers', that would also be a 'permissible' interpretation of the Act. This is seen most clearly in 1b, where they discuss the ruling made by the Court of Appeals for the Ninth Circuit, which found that classifiying a 'cable modem service' as a 'telecommunications service' was the best reading of the statute. This says that both readings are 'permissible' and thus, pass the test of Chevron.

To clarify, it is important to note that the Supreme Court did NOT rule that classifying ISPs as 'telecommunications carriers' was an un-permissible reading under the Chevron framework, but that, as more than one permissible reading exists, the FCC are free to choose whichever they deem suitable.

Granted, the nature of the case might make it hard to re-classify cable broadband providers, but it's not correct to imply that the FCC doesn't have the authority to do this.

Re: so do the telephone networks

The rules for the telephone networks were written in light of the fact that from 1934 to the 1990s the government granted AT&T a monopoly in the telephone market. Sprint challenged it in court and won. The 1996 law was written to take into account the changing environment and to try to re-balance the mess the government made through its bad and unconstitutional legislation in the first place. Quite frankly, at some point the common carrier rules will need to be re-written as well.

Re: Pissing the night away.

RE:Last I checked, so do the telephone networks. Just because a resource is private doesn't meant the owner gets carte blanche, especially when the resource is providing a service rather than is directly a good.

But, they shoud have carrte blanche. It is their network; their hardware; often it was their inventions. What we did in the past was just as inexcusable as what we are doing today. Your need is not a claim check on anyone else's blood, sweat and tears.

Re: Doesn't it depend what you mean *by* "net neutrality" ?

But that introduces a slippery slope. If you prioritize ANY type of packet (a VoIP packet, like you say), what's to stop de-prioritizing a different type of packet (like a BitTorrent packet)? Furthermore, what if the ISP faces an encrypted or otherwise-obfuscated stream where identifying the purpose is difficult?

Re: The question has been is broadband ... "common carrier"

Hi Tom,

I got back to you in the last FCC thread but I don't know if you saw it (it was, like this post, a bit delayed - sorry!).

To repeat what I said there, thanks for you clarification but it doesn't actually conform to what I have read.

Summary

The Telecommunications Act (1996) did define what a 'Common Carrier' (CC) is and what an 'Information Service' (IS) is, however it did not explicitly assign cable broadband providers as one or the other. In the absence of a clear ruling from congress, the FCC has the power to decide which category to put cable broadband providers (and other communications services) into.

So, while the FCC cannot change the definitions provided by the Act, they can decide which of those definition cable broadband comes under.

Boring part

For this, I look to National Cable and Telecommunications Association (NCTA) V. Brand X Internet Services. The summary of this and the relevant background is:

• In 2002, the FCC decided to classify cable broadband providers as ISs, not CCs.
• In 2005, the ISP Brand X wanted to use the existing coax owned by other providers to deliver its services.
• Under CC regulations, the other providers would be obliged to rent their coax to Brand X, however under IS regulations, they wouldn't.
• The FCC confirmed it's stance that cable providers were ISs and not CCs.
• Brand X took this to court, arguing that cable providers should be CCs. They lost.

The important part, however, is the reason why they lost and the FCC's classification was upheld.

The central question of the case was whether the FCC's classification of ISPs as ISs rather than CCs was a valid interpretation of the Communications Act. Brand X argued that it was not not; the NCTA/FCC argued that it was.

The court, however, ruled that the Act was "ambiguous" and, as per the Chevron doctrine, the FCC - as the agency tasked with upholding the Act - should be deferred to and thus their interpretation should be accepted, where it is deemed permissible* and reasonable.

In other words, the FCC has the legal authority to rule whether ISPs are classified as Common Carriers or Informations Services because Congress (through the Act) has not made an explicit, unambiguous ruling.

* - In their ruling, the court made particular note that, under Chevron, the agency's interpretation must be a "permissible" reading of the statute, but it does not have to be the best reading. Even if the court believes there is a better reading, so long as the statute is ambiguous and the agency's interpretation permissible, the court will defer to the agency.