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Thanks to Loper Bright, we finally have certainty as to what the Telecommunications Act of 1996 actually means. By way of background, the Obama administration

Thanks to Loper Bright, we finally have certainty as to what the Telecommunications Act of 1996 actually means. By way of background, the Obama administration first classified broadband providers as telecommunications services subject to common-carrier regulation under Title II in 2015. The FCC reversed itself under Trump, and then during the Biden administration changed its mind yet again. The law never changed. Each time, the courts deferred to the agency's interpretation as "reasonable", despite the fact that the interpretations were completely inconsistent. There is a single right answer: either the law classifies broadband carriers as offering telecommunications services or information services. Today, for the first time, a court has actually read the law[0] and concluded that broadband carriers offer information services, not telecommunications services. If that's not the policy result Congress wanted, then Congress can change the law instead of letting the President change his mind every 4 years. [0] https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0002p-06.pdf https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0002p-06.pd...

vel0city 2y ago
Even this court opinion makes the same stupid mistake of misunderstanding what an ISP does in their attempt to further define what an information service is. > In short, an “information service” manipulates data, while a “telecommunications service” does not. Hacker News manipulates the data you put into the text box to post that comment into the list of comments it serves to me. My ISP absolutely did not in any way manipulate a single bit of that data Hacker News sent as a reply to me when I requested to Hacker News, not my ISP for that comment data. So even with this opinion's simplified standard of what an information service is, ISPs absolutely fail to meet this standard. Its astounding to me people can actually think an ISP is an "information service" under the 1996 definition. And before you suggest "well the ISP probably did some other weird stuff inside their networks to actually transit those packets to you", the 1996 definition carves out that just doing the things needed to be a telecommunications provider does not make you an information service provider. > 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. https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.pdf https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.p...
- tptacek 2y ago
  For what it's worth, you're making a common parlance argument against statutory interpretation. Every word in the statute counts, and here it appears to have turned on the definition of an information service as something that offers a capability, whether or not its core function involves using that capability, as well as usage of the term "information service" elsewhere in federal law that clearly included ISPs.
  - vel0city 2y ago
    > you're making a common parlance argument against statutory interpretation No, I included the actual text of the law of what an information service provider is in another comment and I'm using the test this opinion came up with. I'm not making up my own definition. Please tell me how my ISP does this, as this is what an "information service" is under the '96 law. "generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications" They don't generate it, they don't really acquire it (they don't know what my query is, its encrypted), they don't store it, they don't transform it (it's encrypted), they don't process it (it's encrypted), they don't actually retrieve it (it's not on their servers or their drives or whatever), they don't utilize it (it's encrypted), and they're not the one making it available or not. What part of what an ISP does involve any of that?! Please tell me how my ISP is manipulating the data we're posting and accessing through this comment section. Please tell me how that becomes an information service. > as well as usage of the term "information service" elsewhere in federal law that clearly included ISPs It doesn't unless you're severely corrupt, incompetent, or unable to read English at least from the few times I read the '96 act.
    - tptacek 2y ago
      Starting on page 12 of the decision you're citing, and in very tedious detail, the appeals court rebuts you. I'm not even saying you're wrong, I'm saying that the plain English meanings of sentences do not always control in statutory analysis. I just helped take a case to the Illinois Supreme Court, and lost there, over a similar issue. My definition is better! But I respect the legal process that produced a conflicting, controlling definition.
mmooss 2y ago
I don't see how the court's interpretation provides more certainty than the executive branch's (via the FCC); it's one interpretation or another. Also, the executive branch has domain experts who understand telecommunications and long experience develping and implementing policy; the court is an outsider trying to figure it out. I'd rather have the experts doing the work. The courts have been especially unpredictable recently, widely perceived to act on politics rather than the law. The Supreme Court seems to fabricate law on a regular basis. In this case, the executive has virtually unlimited power - beyond legal restraint or criminal sanction - in its 'core functions', but regulating powerful GOP constituents is a step too far.
- tptacek 2y ago
  I think you get more certainty from the court interpretation because it's final. The executive branch can't simply overrule it and say "well, we disagree, the FCC rules stand".
  - mmooss 2y ago
    Good point. When you put it that way, perhaps the reduced democratic power over the situation is a drawback. Also, to clarify (and as I'm sure you know), the executive can't arbitrarily change regulatory rules. A whole process is required and non-arbitrariness is a rule (of courts or the law).
    - tptacek 2y ago
      This is strictly increased democratic power over the situation.
      - mmooss 2y ago
        What do you mean? The judicial branch is much less democratic than the executive branch. If you refer to the 'regulation is by unelected bureaucrats' argument, it's certainly widely stated but it's BS: With only ~540 elected people in Washington, almost every decision and act by people who weren't elected. Government would immediately cease to function if those 540 had to do everything, and democracy would be impossible. Democracy is people delegated specific powers by elected officials, and that includes regulators. The democratic credentials of courts and executive branch regulators are an interesting comparison: Both have their members appointed by the executive and confirmed by the legislature. Elected officials insulate both from the elected officials' own interference. The main difference is how thick that insulation is: Executive branch regulators are intended to change authority with each president and to generally follow the president's preferences to some degree, within the law and in service to the American people (that is, they serve the people and not the president). The regulators are insulated by laws which theoretically could change any day, but generally don't. Judicial branch appointees, the judges, are for life, are expected to act completely independently of the president who appointed them, and they are insulated by the Constitution, which is much harder to change.

vel0city 2y ago

Even this court opinion makes the same stupid mistake of misunderstanding what an ISP does in their attempt to further define what an information service is. > In short, an “information service” manipulates data, while a “telecommunications service” does not. Hacker News manipulates the data you put into the text box to post that comment into the list of comments it serves to me. My ISP absolutely did not in any way manipulate a single bit of that data Hacker News sent as a reply to me when I requested to Hacker News, not my ISP for that comment data. So even with this opinion's simplified standard of what an information service is, ISPs absolutely fail to meet this standard. Its astounding to me people can actually think an ISP is an "information service" under the 1996 definition. And before you suggest "well the ISP probably did some other weird stuff inside their networks to actually transit those packets to you", the 1996 definition carves out that just doing the things needed to be a telecommunications provider does not make you an information service provider. > 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. https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.pdf https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.p...

tptacek 2y ago
For what it's worth, you're making a common parlance argument against statutory interpretation. Every word in the statute counts, and here it appears to have turned on the definition of an information service as something that offers a capability, whether or not its core function involves using that capability, as well as usage of the term "information service" elsewhere in federal law that clearly included ISPs.
- vel0city 2y ago
  > you're making a common parlance argument against statutory interpretation No, I included the actual text of the law of what an information service provider is in another comment and I'm using the test this opinion came up with. I'm not making up my own definition. Please tell me how my ISP does this, as this is what an "information service" is under the '96 law. "generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications" They don't generate it, they don't really acquire it (they don't know what my query is, its encrypted), they don't store it, they don't transform it (it's encrypted), they don't process it (it's encrypted), they don't actually retrieve it (it's not on their servers or their drives or whatever), they don't utilize it (it's encrypted), and they're not the one making it available or not. What part of what an ISP does involve any of that?! Please tell me how my ISP is manipulating the data we're posting and accessing through this comment section. Please tell me how that becomes an information service. > as well as usage of the term "information service" elsewhere in federal law that clearly included ISPs It doesn't unless you're severely corrupt, incompetent, or unable to read English at least from the few times I read the '96 act.
  - tptacek 2y ago
    Starting on page 12 of the decision you're citing, and in very tedious detail, the appeals court rebuts you. I'm not even saying you're wrong, I'm saying that the plain English meanings of sentences do not always control in statutory analysis. I just helped take a case to the Illinois Supreme Court, and lost there, over a similar issue. My definition is better! But I respect the legal process that produced a conflicting, controlling definition.

mmooss 2y ago

I don't see how the court's interpretation provides more certainty than the executive branch's (via the FCC); it's one interpretation or another. Also, the executive branch has domain experts who understand telecommunications and long experience develping and implementing policy; the court is an outsider trying to figure it out. I'd rather have the experts doing the work. The courts have been especially unpredictable recently, widely perceived to act on politics rather than the law. The Supreme Court seems to fabricate law on a regular basis. In this case, the executive has virtually unlimited power - beyond legal restraint or criminal sanction - in its 'core functions', but regulating powerful GOP constituents is a step too far.

tptacek 2y ago
I think you get more certainty from the court interpretation because it's final. The executive branch can't simply overrule it and say "well, we disagree, the FCC rules stand".
- mmooss 2y ago
  Good point. When you put it that way, perhaps the reduced democratic power over the situation is a drawback. Also, to clarify (and as I'm sure you know), the executive can't arbitrarily change regulatory rules. A whole process is required and non-arbitrariness is a rule (of courts or the law).
  - tptacek 2y ago
    This is strictly increased democratic power over the situation.
    - mmooss 2y ago
      What do you mean? The judicial branch is much less democratic than the executive branch. If you refer to the 'regulation is by unelected bureaucrats' argument, it's certainly widely stated but it's BS: With only ~540 elected people in Washington, almost every decision and act by people who weren't elected. Government would immediately cease to function if those 540 had to do everything, and democracy would be impossible. Democracy is people delegated specific powers by elected officials, and that includes regulators. The democratic credentials of courts and executive branch regulators are an interesting comparison: Both have their members appointed by the executive and confirmed by the legislature. Elected officials insulate both from the elected officials' own interference. The main difference is how thick that insulation is: Executive branch regulators are intended to change authority with each president and to generally follow the president's preferences to some degree, within the law and in service to the American people (that is, they serve the people and not the president). The regulators are insulated by laws which theoretically could change any day, but generally don't. Judicial branch appointees, the judges, are for life, are expected to act completely independently of the president who appointed them, and they are insulated by the Constitution, which is much harder to change.