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> 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 assum

> 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.

tptacek 2y ago
I think you have reached a level of abstraction where the courts, post-Chevron, were not going to take the FCC's word for it. I also think, putting my brain back into 1996-Thomas mode (still eating frozen pizzas, still enjoying the music of Front Line Assembly) that fetching a web page is, by the logic of the Act, fundamentally the same thing as making a request of Prodigy or AOL. And I'm telling you this as someone (again) who ran an ISP in 1996. I can't say enough how much the Telecommunications Act was not about this issue. This does not feel like a sufficiently load-bearing piece of legislative intent to hang such an intrusive regulatory framework on! Based solely on this definition, in a statute that pretty clearly saw the Internet as a use case for telecommunications, the FCC gets to regulate all Internet providers? What did you think was going to happen?
- wtallis 2y ago
  > that fetching a web page is, by the logic of the Act, fundamentally the same thing as making a request of Prodigy or AOL. That's not actually in dispute. I fully agree with you on this point. You're just being silly by pretending that the fact that AOL was called an ISP back then means that everything called an ISP now must be regulated the same way, when "ISP" isn't even the legally-relevant terminology. > in a statute that pretty clearly saw the Internet as a use case for telecommunications To the extent that "the Internet" can be seen as a "use case" in itself and not just an enabler of other use cases, it must be considered to be the packet network plus services atop it like email, WWW, etc.
  - tptacek 2y ago
    I'm not saying AOL was considered an ISP back in 1996; I don't really think it was. I'm saying the Internet as a concept was not considered a raw telecommunications service. The Internet was something the Act wanted to force telecommunications providers to allow; its concern was much more that MCI and AT&T might try to suppress the Internet in favor of some MCI- or AT&T-specific information services. For as much tsuris as this issue has caused on this thread, I don't think there's much dispute about this, legally; the issue made it all the way to the Supreme Court, which ruled on it; only a particularly reach-y application of Chevron made the interpretation you want viable. Chevron is dead now, and so, too, mechanically, is administratively-enforced "net neutrality".
    - vel0city 2y ago
      > Internet as a concept was not considered a raw telecommunications service You're making a common parlance argument against statutory interpretation. Go with what the law actually says an information service is versus a telecommunications service. > its concern was much more that MCI and AT&T might try to suppress the Internet in favor of some MCI- or AT&T-specific information services. This is exactly the concern that NN proponents have today. It's the same RBOCs of yore wearing a mask and arguing they're something they aren't. And That by controlling the pipes (many of which have no viable or slim competition) the ISPs can (and have tried) to push certain information services they own and operate or have financial deals with over others with unequal billing and network management policies.
      - tptacek 2y ago
        What you're making is an argument that Congress should pass a law regulating the ISPs as if they were RBOCs†. The Telecommunications Act of 1996 refers specifically to the "Bell Operating Companies", and does so because of the antitrust-enforced divestment of those very specific companies from AT&T. They're not an abstract concept in the law, and the FCC can't just say "it would make sense if the law was extended to ISPs too". That's Congress's job. † or something; the 1996 Act actually de-regulates the RBOCs.

tptacek 2y ago

I think you have reached a level of abstraction where the courts, post-Chevron, were not going to take the FCC's word for it. I also think, putting my brain back into 1996-Thomas mode (still eating frozen pizzas, still enjoying the music of Front Line Assembly) that fetching a web page is, by the logic of the Act, fundamentally the same thing as making a request of Prodigy or AOL. And I'm telling you this as someone (again) who ran an ISP in 1996. I can't say enough how much the Telecommunications Act was not about this issue. This does not feel like a sufficiently load-bearing piece of legislative intent to hang such an intrusive regulatory framework on! Based solely on this definition, in a statute that pretty clearly saw the Internet as a use case for telecommunications, the FCC gets to regulate all Internet providers? What did you think was going to happen?

wtallis 2y ago
> that fetching a web page is, by the logic of the Act, fundamentally the same thing as making a request of Prodigy or AOL. That's not actually in dispute. I fully agree with you on this point. You're just being silly by pretending that the fact that AOL was called an ISP back then means that everything called an ISP now must be regulated the same way, when "ISP" isn't even the legally-relevant terminology. > in a statute that pretty clearly saw the Internet as a use case for telecommunications To the extent that "the Internet" can be seen as a "use case" in itself and not just an enabler of other use cases, it must be considered to be the packet network plus services atop it like email, WWW, etc.
- tptacek 2y ago
  I'm not saying AOL was considered an ISP back in 1996; I don't really think it was. I'm saying the Internet as a concept was not considered a raw telecommunications service. The Internet was something the Act wanted to force telecommunications providers to allow; its concern was much more that MCI and AT&T might try to suppress the Internet in favor of some MCI- or AT&T-specific information services. For as much tsuris as this issue has caused on this thread, I don't think there's much dispute about this, legally; the issue made it all the way to the Supreme Court, which ruled on it; only a particularly reach-y application of Chevron made the interpretation you want viable. Chevron is dead now, and so, too, mechanically, is administratively-enforced "net neutrality".
  - vel0city 2y ago
    > Internet as a concept was not considered a raw telecommunications service You're making a common parlance argument against statutory interpretation. Go with what the law actually says an information service is versus a telecommunications service. > its concern was much more that MCI and AT&T might try to suppress the Internet in favor of some MCI- or AT&T-specific information services. This is exactly the concern that NN proponents have today. It's the same RBOCs of yore wearing a mask and arguing they're something they aren't. And That by controlling the pipes (many of which have no viable or slim competition) the ISPs can (and have tried) to push certain information services they own and operate or have financial deals with over others with unequal billing and network management policies.
    - tptacek 2y ago
      What you're making is an argument that Congress should pass a law regulating the ISPs as if they were RBOCs†. The Telecommunications Act of 1996 refers specifically to the "Bell Operating Companies", and does so because of the antitrust-enforced divestment of those very specific companies from AT&T. They're not an abstract concept in the law, and the FCC can't just say "it would make sense if the law was extended to ISPs too". That's Congress's job. † or something; the 1996 Act actually de-regulates the RBOCs.