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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

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.”
- vel0city 2y ago
  But an ISP, as it's core offering, doesn't offer me the capability to retrieve information. It gives me the ability to send some packets and maybe get a response. It is the information services like Hacker News that actually gives me the capability to post a comment and read replies. One might as well argue the power company is an information service, since they offer me the capability to run the modem and power my computer.
  - tptacek 2y ago
    It really sounds like what you disagree with most of all is Loper Bright Enterprises vs. Raimondo. Fair enough! But: your side lost that case.
    - wtallis 2y ago
      Loper Bright is only relevant here as the case that opened the door for the appeals court to more easily overturn the FCC. The case itself was not related to the FCC and isn't the source of any of the absurdity in this appeals court ruling.
      - 2y ago
tptacek 2y ago
The reasoning you're using here doesn't make much sense, to me, in light of the statute. The Telecommunications Act of 1996 had as its primary purpose the deregulation of the RBOCs and the provision of local (last-mile) POTS service. To the Telecommunications Act, the Internet is firmly something you would build on top of a telecommunications service; the entire Internet is an information service. That doesn't make any sense to you today because you're ~30 years removed from the time of Prodigy, CompuServe, and AOL, but that's the context of the statute. The statute, I'll remind you, doesn't exist to establish whether ISPs can prefer one streamer over another. "Streamers" are a concept that wasn't legible to the authors of the Telecommunications Act. The reason this definition matters is that it's the hinge point on which the FCC claimed authority to regulate --- to make up its own laws, based on the opinions of its own executive appointees, with no Congressional consensus behind it --- ISPs. In the era of Chevron Deference, court precedent was that in the face of ambiguity, the courts were to trust the unelected administrative agencies in their interpretation of statutes. That was struck down, so courts now actually get to look at the context of the Telecommunications Act and see: no, this was not an act that had "net neutrality" in mind.
- wtallis 2y ago
  > the Internet is firmly something you would build on top of a telecommunications service; the entire Internet is an information service. I think the key assumption you're making here is that anything layered on top of a telecommunications service must be an information service, so if "telecommunications service" can be defined narrowly enough, then maybe the entire Internet (endpoints and transit) can be construed as "information service". But that's not how the two legal definitions are related. Information services must have an underlying telecommunications service, but I don't see where the law prohibits a telecommunications service from being layered atop another telecommunications service (which POTS as an amalgamation of numerous providers seems to be, especially in the case of MVNOs, or undersea cable operators selling a slice of their bandwidth to phone companies). I also don't see where the definitions require that the line between telecommunications services and information services must be drawn at a low enough layer that IP transit exists solely above the line. And certainly a company who operates the lowest physical layer must be operating at least partially on the "telecommunications" side of the line.

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.”

vel0city 2y ago
But an ISP, as it's core offering, doesn't offer me the capability to retrieve information. It gives me the ability to send some packets and maybe get a response. It is the information services like Hacker News that actually gives me the capability to post a comment and read replies. One might as well argue the power company is an information service, since they offer me the capability to run the modem and power my computer.
- tptacek 2y ago
  It really sounds like what you disagree with most of all is Loper Bright Enterprises vs. Raimondo. Fair enough! But: your side lost that case.
  - wtallis 2y ago
    Loper Bright is only relevant here as the case that opened the door for the appeals court to more easily overturn the FCC. The case itself was not related to the FCC and isn't the source of any of the absurdity in this appeals court ruling.
    - 2y ago

tptacek 2y ago

The reasoning you're using here doesn't make much sense, to me, in light of the statute. The Telecommunications Act of 1996 had as its primary purpose the deregulation of the RBOCs and the provision of local (last-mile) POTS service. To the Telecommunications Act, the Internet is firmly something you would build on top of a telecommunications service; the entire Internet is an information service. That doesn't make any sense to you today because you're ~30 years removed from the time of Prodigy, CompuServe, and AOL, but that's the context of the statute. The statute, I'll remind you, doesn't exist to establish whether ISPs can prefer one streamer over another. "Streamers" are a concept that wasn't legible to the authors of the Telecommunications Act. The reason this definition matters is that it's the hinge point on which the FCC claimed authority to regulate --- to make up its own laws, based on the opinions of its own executive appointees, with no Congressional consensus behind it --- ISPs. In the era of Chevron Deference, court precedent was that in the face of ambiguity, the courts were to trust the unelected administrative agencies in their interpretation of statutes. That was struck down, so courts now actually get to look at the context of the Telecommunications Act and see: no, this was not an act that had "net neutrality" in mind.

wtallis 2y ago
> the Internet is firmly something you would build on top of a telecommunications service; the entire Internet is an information service. I think the key assumption you're making here is that anything layered on top of a telecommunications service must be an information service, so if "telecommunications service" can be defined narrowly enough, then maybe the entire Internet (endpoints and transit) can be construed as "information service". But that's not how the two legal definitions are related. Information services must have an underlying telecommunications service, but I don't see where the law prohibits a telecommunications service from being layered atop another telecommunications service (which POTS as an amalgamation of numerous providers seems to be, especially in the case of MVNOs, or undersea cable operators selling a slice of their bandwidth to phone companies). I also don't see where the definitions require that the line between telecommunications services and information services must be drawn at a low enough layer that IP transit exists solely above the line. And certainly a company who operates the lowest physical layer must be operating at least partially on the "telecommunications" side of the line.