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We can read the brief from the petitioners starting on p 32 of https://storage.courtlistener.com/recap/gov.uscourts.ca6.151470/gov.uscourts.ca6.151470.54.0.pdf

by abduhl 2y ago

We can read the brief from the petitioners starting on p 32 of https://storage.courtlistener.com/recap/gov.uscourts.ca6.151470/gov.uscourts.ca6.151470.54.0.pdf https://storage.courtlistener.com/recap/gov.uscourts.ca6.151... Looking at p 36, two information services offered are caching and DNS.

vel0city 2y ago
How many people do you know pick their ISP because they prefer their DNS services? Phone companies are information services because they mailed you a shitty phone book! What an absolute bullshit argument. Back when the law was written, people actually used the services offered by their ISP and they were differentiating services for their subscribers. CompuServ newsgroups, Prodigy message boards, people generally used their ISP provided email services as their primary email, many services offered their own portals for their customers which were quite popular (remember AOL keywords?). None of that is true anymore. Nobody gives a shit about some landing page portal the ISP makes anymore, if they even bother reskinning Yahoo.
- tptacek 2y ago
  ISPs are information services because in the context of the Telecommunications Act of 1996 that's what the Internet was, an information service built on top of telecommunication services. If you passed a Telecommunications Act of 2025, it would be different, but that act has not in fact passed, and what the court is fixated on is what Congress actually authorized.
  - wtallis 2y ago
    > ISPs are information services because in the context of the Telecommunications Act of 1996 that's what the Internet was, an information service built on top of telecommunication services. The Telecommunications Act of 1996 did not define what ISPs are. It defined "information services" and "telecommunication services". Then and now, those definitions are what matter, and companies today need to be classified under those definitions with no legal weight given to whether people today or in 1996 would call any given company an ISP based on a vague colloquial notion of what ISP means—because whether or not something is "an ISP" doesn't answer the question of whether it meets the definitions of an "information service" or a "telecommunication service".
    - tptacek 2y ago
      I'm sorry, I've read this multiple times and I still don't understand how you're reaching the conclusion that lawmakers in 1996 would have intended ISPs to be considered basic telecommunication service providers as opposed to "information services" given the Telecommunications Act rubric. But I also think everyone on this thread has laid out their cases in enough detail that we're mostly moving in circles now.
      - wtallis 2y ago
        I think maybe you're just ignoring half of what I'm saying. I think today's ISPs are offering telecommunications services (by virtue of owning the last-mile physical infrastructure), usually with some information services on top. I simply refuse to pretend that putting both under the same price tag makes the telecommunications service stop existing in the eyes of the law. You wish I was making a wrong determination of mutually-exclusive A vs B, when I'm arguing for A+B over B with magically disappearing A.
        tptacek 2y ago
        I understand what you're saying. I even agree with it: I think, in 2025, that is clearly a more sensible target for legislation†; that's what I'd expect a court to say those words meant, if they were written today. But they weren't written today. They were written in 1996, in the context of a bill deregulating local POTS phone service, and the 1996 context is the one the statute will be read in --- especially since the statute doesn't explicitly authorize any of what the FCC purported to do here! One reason I'm pretty confident with my argument here is that I'm simply restating what the appeals court decision actually says; as passionately as you might want to argue to the contrary, the FCC's interpretation of the statute has been overturned. The Supreme Court seems extremely unlikely to pick this up, not least since the court already ruled in this direction in Brand X. † Not that I think that would be good legislation! I think all of this is a bit silly.
        vel0city 2y ago
        > that is clearly a more sensible target for legislation†; that's what I'd expect a court to say those words meant, if they were written today. You're acting like because ISPs of 1996 fit the definition of an information service in 1996 every org claiming to be an ISP should always be classified as an information service even if their roles in society radically changed. If a law targets people aged 21 and up, and several years passed, you don't then say "well back when this law was written you weren't 21 so you somehow aren't in this definition", no, you look at the language of the law and see how it applies to the people today. In that same vein we should look at what an ISP does today, look at the words in the law as written, and decide which bucket they belong in: information service or telecommunications service. And they really don't do a damn thing like what an ISP did as an information service did in 1996. And they're also now largely those RBOCs that were targeted as telecommunications services and have the same market complications as they did back then. > In short, an “information service” manipulates data, while a “telecommunications service” does not. In 1996 I'd agree that people subscribed to a particular ISP because of how they manipulated data. These days nobody uses any of the information services provided by an ISP, they're entirely vestigial and ignored. Nobody cares about the ISPs portal or their email services or whatever and they shut down their newsgroups and what not ages ago. All they use their ISP for is to telecommunicate, not to manipulate their data.
wtallis 2y ago
DNS would seem to fall squarely under the "use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service" exclusion. The brief seems to have invented a requirement that the exclusion only apply to inward-facing controls and not user-facing features. But I can't see how the brief's reasoning doesn't also apply to the service of mapping a phone number down to the real call routing necessary to connect a long-distance call; is that now an information service that renders POTS not a telecommunications system? Dialing an outgoing call is clearly "managing, controlling, and operating" the phone system, but is not purely internal or inward-facing, and usually involves making stuff happen on the equipment of at least two phone companies (while the brief insists "No ISP would allow unsupervised third parties to “manage[], control, or operat[e]” its system", as part of inventing another requirement that the management/controlling/operating capabilities be used by ISPs rather than by end users). The caching to which the brief refers is operating CDN nodes. This is obviously something many ISPs don't do at all, and thus is obviously not a key part of being an ISP. It's a complementary service, where ISPs are in competition with other colocation providers. It's also extremely bad public policy to enshrine CDN services as a core part of an ISP's job, because shenanigans with CDNs are one of the major motivating factors for having net neutrality regulations in the first place. And allowing ISPs to escape regulation of their packet-transit services by tying them with value-add services is horrible; that behavior needs to be discouraged using antitrust regulation, not incentivized by the courts. We went through over a decade where bundling internet service with email service gave ISPs unfair leverage to lock-in their customers (by retaining control over their online identities) before third-party email services like Hotmail and GMail were able to erode that power and give consumers more freedom to leave their ISP. Did the court actually specifically rule on either of these two arguments?
- vel0city 2y ago
  It's like arguing DTMF is a user facing feature so phone services aren't telecommunications.
- abduhl 2y ago
  No, the court never reaches these because the court holds that “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)” and “Even under the FCC's narrower interpretation of ‘capability,’ Broadband Internet Access Providers allow users, at minimum, to ‘retrieve’ information stored elsewhere.” So even allowing users the capability of retrieving information is sufficient because the definition of an information service is “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, 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.”

by abduhl 2y ago

vel0city 2y ago

How many people do you know pick their ISP because they prefer their DNS services? Phone companies are information services because they mailed you a shitty phone book! What an absolute bullshit argument. Back when the law was written, people actually used the services offered by their ISP and they were differentiating services for their subscribers. CompuServ newsgroups, Prodigy message boards, people generally used their ISP provided email services as their primary email, many services offered their own portals for their customers which were quite popular (remember AOL keywords?). None of that is true anymore. Nobody gives a shit about some landing page portal the ISP makes anymore, if they even bother reskinning Yahoo.

tptacek 2y ago
ISPs are information services because in the context of the Telecommunications Act of 1996 that's what the Internet was, an information service built on top of telecommunication services. If you passed a Telecommunications Act of 2025, it would be different, but that act has not in fact passed, and what the court is fixated on is what Congress actually authorized.
- wtallis 2y ago
  > ISPs are information services because in the context of the Telecommunications Act of 1996 that's what the Internet was, an information service built on top of telecommunication services. The Telecommunications Act of 1996 did not define what ISPs are. It defined "information services" and "telecommunication services". Then and now, those definitions are what matter, and companies today need to be classified under those definitions with no legal weight given to whether people today or in 1996 would call any given company an ISP based on a vague colloquial notion of what ISP means—because whether or not something is "an ISP" doesn't answer the question of whether it meets the definitions of an "information service" or a "telecommunication service".
  - tptacek 2y ago
    I'm sorry, I've read this multiple times and I still don't understand how you're reaching the conclusion that lawmakers in 1996 would have intended ISPs to be considered basic telecommunication service providers as opposed to "information services" given the Telecommunications Act rubric. But I also think everyone on this thread has laid out their cases in enough detail that we're mostly moving in circles now.
    - wtallis 2y ago
      I think maybe you're just ignoring half of what I'm saying. I think today's ISPs are offering telecommunications services (by virtue of owning the last-mile physical infrastructure), usually with some information services on top. I simply refuse to pretend that putting both under the same price tag makes the telecommunications service stop existing in the eyes of the law. You wish I was making a wrong determination of mutually-exclusive A vs B, when I'm arguing for A+B over B with magically disappearing A.
      - tptacek 2y ago
        I understand what you're saying. I even agree with it: I think, in 2025, that is clearly a more sensible target for legislation†; that's what I'd expect a court to say those words meant, if they were written today. But they weren't written today. They were written in 1996, in the context of a bill deregulating local POTS phone service, and the 1996 context is the one the statute will be read in --- especially since the statute doesn't explicitly authorize any of what the FCC purported to do here! One reason I'm pretty confident with my argument here is that I'm simply restating what the appeals court decision actually says; as passionately as you might want to argue to the contrary, the FCC's interpretation of the statute has been overturned. The Supreme Court seems extremely unlikely to pick this up, not least since the court already ruled in this direction in Brand X. † Not that I think that would be good legislation! I think all of this is a bit silly.
        vel0city 2y ago
        > that is clearly a more sensible target for legislation†; that's what I'd expect a court to say those words meant, if they were written today. You're acting like because ISPs of 1996 fit the definition of an information service in 1996 every org claiming to be an ISP should always be classified as an information service even if their roles in society radically changed. If a law targets people aged 21 and up, and several years passed, you don't then say "well back when this law was written you weren't 21 so you somehow aren't in this definition", no, you look at the language of the law and see how it applies to the people today. In that same vein we should look at what an ISP does today, look at the words in the law as written, and decide which bucket they belong in: information service or telecommunications service. And they really don't do a damn thing like what an ISP did as an information service did in 1996. And they're also now largely those RBOCs that were targeted as telecommunications services and have the same market complications as they did back then. > In short, an “information service” manipulates data, while a “telecommunications service” does not. In 1996 I'd agree that people subscribed to a particular ISP because of how they manipulated data. These days nobody uses any of the information services provided by an ISP, they're entirely vestigial and ignored. Nobody cares about the ISPs portal or their email services or whatever and they shut down their newsgroups and what not ages ago. All they use their ISP for is to telecommunicate, not to manipulate their data.

wtallis 2y ago

DNS would seem to fall squarely under the "use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service" exclusion. The brief seems to have invented a requirement that the exclusion only apply to inward-facing controls and not user-facing features. But I can't see how the brief's reasoning doesn't also apply to the service of mapping a phone number down to the real call routing necessary to connect a long-distance call; is that now an information service that renders POTS not a telecommunications system? Dialing an outgoing call is clearly "managing, controlling, and operating" the phone system, but is not purely internal or inward-facing, and usually involves making stuff happen on the equipment of at least two phone companies (while the brief insists "No ISP would allow unsupervised third parties to “manage[], control, or operat[e]” its system", as part of inventing another requirement that the management/controlling/operating capabilities be used by ISPs rather than by end users). The caching to which the brief refers is operating CDN nodes. This is obviously something many ISPs don't do at all, and thus is obviously not a key part of being an ISP. It's a complementary service, where ISPs are in competition with other colocation providers. It's also extremely bad public policy to enshrine CDN services as a core part of an ISP's job, because shenanigans with CDNs are one of the major motivating factors for having net neutrality regulations in the first place. And allowing ISPs to escape regulation of their packet-transit services by tying them with value-add services is horrible; that behavior needs to be discouraged using antitrust regulation, not incentivized by the courts. We went through over a decade where bundling internet service with email service gave ISPs unfair leverage to lock-in their customers (by retaining control over their online identities) before third-party email services like Hotmail and GMail were able to erode that power and give consumers more freedom to leave their ISP. Did the court actually specifically rule on either of these two arguments?

vel0city 2y ago
It's like arguing DTMF is a user facing feature so phone services aren't telecommunications.
abduhl 2y ago
No, the court never reaches these because the court holds that “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)” and “Even under the FCC's narrower interpretation of ‘capability,’ Broadband Internet Access Providers allow users, at minimum, to ‘retrieve’ information stored elsewhere.” So even allowing users the capability of retrieving information is sufficient because the definition of an information service is “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, 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.”