FCC Wants to Know if Ernestine Rules the Internet

The FCC released the official Notice of Proposed Rulemaking Monday, asking dozens of questions about the agency’s 2015 Open Internet Order. In general, the NPRM signals the agency’s intent to unwind the 2015 rulemaking that placed Internet Service under Title II of the Communications Act. The 2015 order also forbore from the “vast majority of rules adopted under Title II,” including “30 statutory provisions”, rendering “over 700 codified rules inapplicable.”

It’s always been my opinion that the 2015 Order had more to do with saving face and reaching out to the Netroots voting bloc than with protecting the Internet from harm. For that reason, I filed an amicus brief in the court challenge by US Telecom to the order. The link will take you to a post and a podcast on the brief.

The court ignored my brief because it dealt with matters of technology rather than law, but I think the technology side is more important than the legal considerations. In this case, there is considerable history of courts and the FCC making analytical errors in determining the nature of the service offered by ISPs. Relying exclusively on precedent simply sweeps these errors under the rug and keeps the issue alive.

The Internet and the Communications Act Have Similar Structures

The Communications Act is structured in terms of three transmission networks – Title II telephone, Title VI cable, and Title III wireless – and an overarching Title I information service. The Title I service utilizes one or more transmission networks, but is not itself a transmission technology as the term is defined in the Act.

The Internet consists of multiple transmission networks – the last mile networks operated by 30,000 plus ISPs and other companies around the world – as well as a software overlay interconnecting the transmission networks. Hence, the Internet and the Act’s Title I services utilize transmission networks but offer something more.

The additional feature is access to information, services, and processing capability at remote locations on other networks. So Netflix, the Amazon cloud, and Facebook are Information Services despite the fact that each consists of a large transmission network. In fact, the location-independence of the cloud is inconceivable without the extensive transmission capacity that cloud services companies maintain.

Where Title II Does Not Apply

Amazon’s transmission network is not regulated under Title II – even by the 2015 Order – because the company does not offer pure transmission for sale. Amazon simply maintains a network in order to provide cloud computing.

Webex is also not regulated by Title II even though it offers nothing more than high-quality transmission. This is mysterious in light of the logic of the 2015 order, but that may have something to do with the fact that Webex qualifies as a “non-BIAS data service” in the order’s terms.

That’s because Webex does not offer connectivity to most Internet end points. With Webex, you can enjoy conferencing with other Webex users, but you can’t access Google or Facebook. So Amazon and Webex are exempt from Title II because they support computation and conferencing over private networks that interconnect with the Internet transmission networks in limited ways. But there’s more to the story.

Where Title II Applies but Shouldn’t

In the dial-up era, ISPs were considered information services. They offered a service that required consumers to pay other companies – the telcos – for transmission so there was a clear boundary. The Stevens Commission report from the FCC to Congress in 1998 makes this very clear:

73. We find that Internet access services are appropriately classed as information, rather than telecommunications, services. Internet access providers do not offer a pure transmission path; they combine computer processing, information provision, and other computer-mediated offerings with data transport.

The advent of broadband ISPs that offered both transmission and information services caused an intellectual meltdown at the FCC. It was no longer possible for the FCC to maintain the separation of information and transmission in the context of a marketplace that combined the two into a single bill.

To complicate matters further, the firms that built broadband networks also used them to provide additional services such as telephone and video services. So broadband networks have always been distinct from the services they support and the services have always been independent of the transmission capabilities of the various  Title II, III, and VI networks they utilize.

One and Only One Title Applies to a Given Service

If dial-up Internet Service is a creature of Title I, it stands to reason that broadband Internet Service is entitled to the same regulatory treatment. The FCC has consistently argued that a service offered to the public can be regulated under any Title of the Act, but it can’t be regulated under multiple titles at the same time.

The current NPRM raises this point in paragraph 40:

40. The Commission has previously concluded that Congress formally codified information services and telecommunications services as two, mutually exclusive types of service in the Telecommunications Act. The Title II Order did not appear to disagree with this analysis, finding that broadband Internet access service was a telecommunications service and not an information service. We believe this conclusion regarding mutual exclusivity is correct based on the text and history of the Act. We seek comment on this analysis.

If we accept this analysis – as every FCC has done since 1996 – then the analysis of the proper classification of Internet Service becomes quite simple. In essence, if an offering features any aspect of information service, it is an information service in its totality. This is how Amazon and Webex really escape the jaws of Title II.

Internet Service is More Than Transmission

The fact that a transmission service is used to support information services does not reduce information service to transmission. The Act acknowledges this in its definition of Information Service:

The term ”information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications…

Both the Communications Act and real-life facts say that information services subsume transmission: “via telecommunications.” The only wiggle room is the following clause on network management:

…and 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.

DC Circuit Got Internet Service Wrong

Hence, advocates of Title II regulation of broadband ISPs have been eager to characterize the information processing components of Internet Service examples of “network management.”  This strategy reached its zenith in the DC Circuit’s declaration that DNS is an information service when provided by Google but is network management when provided by Comcast [page 40]:

Once a carrier uses a service that would ordinarily be an information service—such as DNS or caching—to manage a telecommunications service, that service no longer qualifies as an information service under the Communications Act. The same service, though, when unconnected to a telecommunications service, remains an information service.

The court’s reasoning is utterly ridiculous. The character of DNS is not dependent on who provides it, and DNS is not a tool for network management in any case.  In oral arguments, one of the judges confused DNS with the routing protocols that direct traffic between and through transmission networks.

In fact, the transmission element that supports Internet Service also supports non-Internet services: telephone and TV. DNS doesn’t “manage” this transmission network.

The Road to Reason

So the path to rational regulations on both ISPs and the rest of the Internet is littered with errors of analysis, confusing (to lawyers, anyhow) terminology, and a poor conceptual grasp on how the Internet works.  For the next few months, we’re going to do our best to unpack these errors one by one.

In the meantime, the Pai FCC appears to follow Bob Dylan’s dictum from Blowin’ in the Wind: You can’t regulate what you don’t understand. Internet Service contains information service elements that are unconnected from the actual task of network management and that’s all we need to know about it.

This means that broadband ISPs are in the same game as dial-up ISPs: providing customers the ability to access and share information. Hence, Lily Tomlin’s telephone operator Ernestine is not really part of the picture any more. She was a great lady, but like Manu Ginobili of the San Antonio Spurs, she’s retired.