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The Federal government can regulate broadband providers, just not as telecommunications providers (subject to common carrier requirements) under the Telecommuni

The Federal government can regulate broadband providers, just not as telecommunications providers (subject to common carrier requirements) under the Telecommunications Act of 1996. Congress could update the law if it wanted to. If the court had held otherwise, the Federal common carrier requirements would have preempted any common carrier duties imposed by California and New York. Since today the 6th Circuit says the FCC does not have that power (because broadband providers offer information services and not telecommunications services), California and New York are welcome to impose those duties within their state boundaries (as long as they don't step on any other areas of Federal preemption).

vel0city 2y ago
> because broadband providers offer information services and not telecommunications services This is where I highly disagree with the opinions of this court decision. My ISP is absolutely providing me telecommunications services, not information service. For practically all the "information" I receive, my ISP is not "generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications". That maybe sometimes I might land on some webpage hosted by my ISP is inconsequential to the services I am paying for, that's not the service I'm paying for. In the end I'm paying for them to give me the ability to telecommunicate with a server hosted by someone else which then generates, processes, retrives, that information. My ISP is not the information service which lets me post here. Hacker News is an information service acquiring, storing, transforming, processing, and retrieving the data I request. My ISP is only used for me to talk to the Hacker News webserver. https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.pdf https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.p... I truly don't understand how anyone who can even vaguely understand how ISPs work and reads this law could say ISPs aren't telecommunications providers and are instead information service providers. Other than maybe big bags of cash that makes people's reading comprehension a little loose.
- granzymes 2y ago
  >We now turn to the merits, which the parties have argued here in exemplary fashion. But the key flaw in the FCC’s arguments throughout is that the FCC elides the phrase “offering of a capability” as used in § 153(24). That phrase makes plain that a provider need not itself generate, process, retrieve, or otherwise manipulate information in order to provide an “information service” as defined in § 153(24). Instead, a provider need only offer the “capability” of manipulating information (in the ways recited in that subsection) to offer an “information service” under § 153(24). Even under the FCC’s narrower interpretation of “capability,” Broadband Internet Access Providers allow users, at minimum, to “retrieve information stored elsewhere. And we think it equally plain, for the reasons recited below, that Broadband Internet Service Providers offer at least that capability.
  - tptacek 2y ago
    As I said elsewhere on this thread, I read this as the court saying that something to the effect of "the underlying links that comprise the Internet backbone are probably telecommunications, but the provision of global Internet service on top of them constitutes information services". Which sounds crazy in 2024, but I'm not sure that's a crazy reading of the world circa 1996, which is the interpretation that controls here --- the Telecommunication Act appears to refer to the Internet primarily as something that runs on top of telecommunication links.
    - wtallis 2y ago
      > the Telecommunication Act appears to refer to the Internet primarily as something that runs on top of telecommunication links. It most certainly does; the statutory definition is that there can be no information service without an underlying telecommunication service. So how could any court rule that ISPs who own the wires coming into my house are providing purely an information service and no part of their business can be regulated as a telecommunication service?
      - tptacek 2y ago
        I think you have this backwards, if I'm reading your thrust properly. The whole deal here is: if the Internet backbone is itself a telecommunications service, then maybe (but: probably not) the FCC can make up new rules about Internet service. If the Telecommunications Act of 1996 sees Internet service as something built on top of raw telecom circuits --- which I think it kind of clearly does? --- the FCC has no such power.
- kevin_thibedeau 2y ago
  ISPs used to have in house e-mail, Usenet, and FTP services. They realized they didn't need them to keep up the charade of being a telecom provider.
  - vel0city 2y ago
    Yeah and back in those times where you hopped on your phone line to dial to your ISPs modem to access the services they host I'd completely agree they were information services providers which happened to maybe offer this new fangled "web" thing you might have heard of on the news. People signed up for those ISPs because of the information services the ISPs provided. Now people sign up for their ISPs because they offered the better price/throughput/stability math, or often they were the only one reasonably available. Practically nobody signs up because one provider has better email or better newsgroups.
  - ab5tract 2y ago
    What are you even saying? These were not signifiers of “telecom providers”. They were elements of competition amongst ISPs. In what world was Usenet and web hosting part of historical telecom offerings?
  - autoexec 2y ago
    They also provided shell accounts and webhosting. It had nothing to do with being a telecom provider. They stopped providing those services because third party services grew more popular and ISPs were happy to pocket the money they were spending to provide and support those services (our bills only went up even as ISPs offered less and less)
- mch82 2y ago
  Your point seems spot on to me. We’ve fallen into the trap of differentiating legislation by implementation (technology) instead of job-to-be-done (societal OKRs). Email is just mail is just a way of exchanging letters. Digital packets and analog signals are just ways of sending data over a wire.

vel0city 2y ago

> because broadband providers offer information services and not telecommunications services This is where I highly disagree with the opinions of this court decision. My ISP is absolutely providing me telecommunications services, not information service. For practically all the "information" I receive, my ISP is not "generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications". That maybe sometimes I might land on some webpage hosted by my ISP is inconsequential to the services I am paying for, that's not the service I'm paying for. In the end I'm paying for them to give me the ability to telecommunicate with a server hosted by someone else which then generates, processes, retrives, that information. My ISP is not the information service which lets me post here. Hacker News is an information service acquiring, storing, transforming, processing, and retrieving the data I request. My ISP is only used for me to talk to the Hacker News webserver. https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.pdf https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.p... I truly don't understand how anyone who can even vaguely understand how ISPs work and reads this law could say ISPs aren't telecommunications providers and are instead information service providers. Other than maybe big bags of cash that makes people's reading comprehension a little loose.

granzymes 2y ago
>We now turn to the merits, which the parties have argued here in exemplary fashion. But the key flaw in the FCC’s arguments throughout is that the FCC elides the phrase “offering of a capability” as used in § 153(24). That phrase makes plain that a provider need not itself generate, process, retrieve, or otherwise manipulate information in order to provide an “information service” as defined in § 153(24). Instead, a provider need only offer the “capability” of manipulating information (in the ways recited in that subsection) to offer an “information service” under § 153(24). Even under the FCC’s narrower interpretation of “capability,” Broadband Internet Access Providers allow users, at minimum, to “retrieve information stored elsewhere. And we think it equally plain, for the reasons recited below, that Broadband Internet Service Providers offer at least that capability.
- tptacek 2y ago
  As I said elsewhere on this thread, I read this as the court saying that something to the effect of "the underlying links that comprise the Internet backbone are probably telecommunications, but the provision of global Internet service on top of them constitutes information services". Which sounds crazy in 2024, but I'm not sure that's a crazy reading of the world circa 1996, which is the interpretation that controls here --- the Telecommunication Act appears to refer to the Internet primarily as something that runs on top of telecommunication links.
  - wtallis 2y ago
    > the Telecommunication Act appears to refer to the Internet primarily as something that runs on top of telecommunication links. It most certainly does; the statutory definition is that there can be no information service without an underlying telecommunication service. So how could any court rule that ISPs who own the wires coming into my house are providing purely an information service and no part of their business can be regulated as a telecommunication service?
    - tptacek 2y ago
      I think you have this backwards, if I'm reading your thrust properly. The whole deal here is: if the Internet backbone is itself a telecommunications service, then maybe (but: probably not) the FCC can make up new rules about Internet service. If the Telecommunications Act of 1996 sees Internet service as something built on top of raw telecom circuits --- which I think it kind of clearly does? --- the FCC has no such power.
kevin_thibedeau 2y ago
ISPs used to have in house e-mail, Usenet, and FTP services. They realized they didn't need them to keep up the charade of being a telecom provider.
- vel0city 2y ago
  Yeah and back in those times where you hopped on your phone line to dial to your ISPs modem to access the services they host I'd completely agree they were information services providers which happened to maybe offer this new fangled "web" thing you might have heard of on the news. People signed up for those ISPs because of the information services the ISPs provided. Now people sign up for their ISPs because they offered the better price/throughput/stability math, or often they were the only one reasonably available. Practically nobody signs up because one provider has better email or better newsgroups.
- ab5tract 2y ago
  What are you even saying? These were not signifiers of “telecom providers”. They were elements of competition amongst ISPs. In what world was Usenet and web hosting part of historical telecom offerings?
- autoexec 2y ago
  They also provided shell accounts and webhosting. It had nothing to do with being a telecom provider. They stopped providing those services because third party services grew more popular and ISPs were happy to pocket the money they were spending to provide and support those services (our bills only went up even as ISPs offered less and less)
mch82 2y ago
Your point seems spot on to me. We’ve fallen into the trap of differentiating legislation by implementation (technology) instead of job-to-be-done (societal OKRs). Email is just mail is just a way of exchanging letters. Digital packets and analog signals are just ways of sending data over a wire.