Since my post a few days ago on the modern history of the net neutrality debate, I’ve been poring over the latest step in that filing: the FCC’s Restoring Internet Freedom initiative. These people at the FCC write a lot. But I’ve finally made it through the new proposal.

In this document, the FCC’s main goal is to justify classifying broadband internet service as an “information service”, not a “telecommunications service” which it currently is. Like I explained in my last post, information service providers are only minimally regulated by the government, whereas telecommunications service providers, or common carriers, are strictly regulated by title II of the Communications Act — in particular, they can’t block or discriminate among the traffic they carry based on content.

The FCC’s reasoning breaks down into three areas:

1. How existing laws apply to the technical functionality of the internet
2. Precedent set by previous rulings of the FCC
3. How the deregulation of broadband internet service will affect consumers

Technical arguments

The first main content section of the proposal sets out to show that the way the internet works “under the hood” matches the legal definition of an information service, not of a telecommunications service. It starts (paragraph 26) by quoting some definitions from the Communications Act, which I’ll also do here:

• Information service: “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.”
• Telecommunications service: “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.”
• Telecommunications: “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”

Then they get into the individual points. Now, to be fair, I’m coming into these looking for ways to pick them apart, but it really doesn’t seem hard. Going paragraph by paragraph:

• Claim: The service offered by ISPs meets the definition of an “information service” because internet users are able to use that service to acquire and retrieve information (reading articles, watching videos), generate and make available information (blogs, social media), store and utilize information (web apps), transform and process information (translation services, photo filters). (paragraph 27)

  Response: As they apply it here, the definition of “information service” is excessively broad. You could make the same argument about telephones, e.g. calling into a radio show (look it up, kids) counts as making information available. And everybody agrees that landline phone companies are common carriers — that’s literally why this legislation was written. Simply because you’re using a service to convey information to another party (whether human or machine) which then does something with that information, that doesn’t mean the conveying service counts as an information service. Similarly with the internet.

• Claim: Broadband internet users often use services from third parties, but also use services provided by their ISP — where “services” can encompass DNS, email, web hosting, etc. (paragraph 28)

  Response: Yes, some people use these “supplemental internet services” (I’m calling them) provided by their ISP. Many other people avoid their ISP’s supplemental services like the plague, because competitors like Gmail and Outlook, Wordpress, OpenDNS, etc. are infinitely superior. There are rich competitive markets for these services, and just because an ISP decides to branch out from providing basic internet access and throw its hat in the ring of some of these markets, does that change the legal status of the internet access itself? I don’t think so. I mean, if ISPs only offered a basic internet connection and nothing else, it’d be pretty obvious that they are acting as common carriers. But for a lot of people (admittedly more on the tech-savvy end of the spectrum), that would be nearly indistinguishable from the current state of internet access.

• Claim: ISPs do not offer a telecommunications service, because consumers do not choose the points between which information is transmitted. (paragraph 29)

  Response: OK this is just silly. Sure, when you access a website or some online service, you don’t choose the physical location that your data comes from. But the same goes for other telecommunications services. With phones, you don’t choose, or even necessarily know, exactly where the phone on the other end of the call is located. In the olden days of wireless telegraphs, you could be exchanging messages with a ship at sea and have literally no idea where they are.

  It’s hardly new that you can use a telecommunications service without pinpointing the geographic location of your communicant. (Side note: “communicant” is a sweet word, time for it to make a comeback.) Remember, the definition of “telecommunications” says “points specified by the user”, but I contend that doesn’t necessarily mean they have to be specified by physical location. Every established telecommunications service has some particular way of identifying sources and destinations, such as phone numbers or IP addresses, and that’s how you specify where your communications are going.

• Claim: Another reason ISPs don’t offer a telecommunications services is that they “change the form or content of the information sent over their networks” by using firewalls, content filters, and other technical measures, and consumers expect this as part of their internet access package. (paragraph 30)

  Response: When it comes to firewalls and content filters and traffic shapers and protocol interfaces and routers (oh my) changing information… this is a complicated question. What do we even mean by “information”? Are we talking about raw bytes, or the text and visual elements you see on a web page, or something in between? See, communications over the internet are handled using a series of protocol layers. When you use a computer to send something over the net, it takes the actual information you want to transmit — like the HTML content of a web page — and converts it into successively simpler forms, until what comes out of the lowest layer is (typically) electrical signals that can be sent over a wire.

  Information is reduced from complex forms (top) to simple ones (bottom). From Wikipedia’s page on the OSI model.

  OSI Model
  Layer		Protocol data unit (PDU)	Function
  Host layers	7. Application	Data	High-level APIs, including resource sharing, remote file access
  	6. Presentation		Translation of data between a networking service and an application; including character encoding, data compression and encryption/decryption
  	5. Session		Managing communication sessions, i.e. continuous exchange of information in the form of multiple back-and-forth transmissions between two nodes
  	4. Transport	Segment (TCP) / Datagram (UDP)	Reliable transmission of data segments between points on a network, including segmentation, acknowledgement and multiplexing
  Media layers	3. Network	Packet	Structuring and managing a multi-node network, including addressing, routing and traffic control
  	2. Data link	Frame	Reliable transmission of data frames between two nodes connected by a physical layer
  	1. Physical	Bit	Transmission and reception of raw bit streams over a physical medium

  Each layer is supposed to be pretty invisible to the ones above it, so, for example, an ISP should be able to manipulate raw bits or frames or packets in various ways without having any effect on how the web page actually looks. Does that disqualify them from being a telecommunications service? I don’t think so, because the information as seen by the user doesn’t change. Again, I can make the comparison to phone calls. When you speak into a phone, there isn’t a long tube carrying the sound to the person on the other end; your voice gets converted into electrical signals which may go through several layers of their own. So this sort of manipulation can definitely happen in telecommunications services.

  The FCC also argues in their proposal that customers specifically want certain kinds of content blocking, like filtering of harmful content (e.g. parental controls), as part of their internet service package. But, no, I don’t think we do. At least I definitely don’t want this kind of content blocking built into my internet access, because I don’t want to be forced to trust my ISP to decide what I’m allowed to see. It should be one of those “supplemental services” that I can opt into and choose between different providers. If one of them goes nuts and starts blocking legitimate content, I want to be able to dump them and switch to a competitor.

• Claim: Part of the justification for the 2015 ruling was that ISPs’ marketing strategies had changed over time, from advertising the collection of services they provide (email, websites, etc.) to advertising primarily their connection speed, but in fact ISPs have been marketing based on connection speed for a long time. (paragraph 36)

  Response: Of course there was never a time when ISPs would entirely omit connection speed and reliability from their advertisements. But in the old days, speed was just one of several features that an ISP would use to attract customers. Look at Comcast’s broadband information page in 2004, for example. They advertise the home page comcast.net as well as features like “click-to-play video and web-based email”.

  

  But on the equivalent page from this past week, it’s all about the connection, with speed gauges and “Mbps download” plastered everywhere you look.

  

  I think, if you look at other ISP websites, you’ll find that difference is typical, and it does reflect the way a lot of people actually use their internet service. The homepages and email accounts and whatnot just don’t play as much of a role these days.

• Claim: Another part of the previous ruling’s justification was that services like DNS and caching, provided by ISPs, fall under “management, control, or operation of a telecommunications system or the management of a telecommunications service”. This wording is supposed to apply to “incidental” services that generally don’t make a difference in how the communication system functions for its users, but DNS and caching don’t fit that criterion. (paragraph 37)

  Response: I find myself wanting to repeat the same response from a couple of the earlier points, that ISPs are one of many providers of these services. It’s true that something like DNS does make a significant difference in how people use the internet; after all, who wants to type in IP addresses all the time? But I think that’s a moot point. As with other services, there’s a competitive market for DNS providers, all of which work basically the same, and there’s absolutely no reason that this service would have to be bundled together with simple internet access.

  Caching, on the other hand, should be pretty invisible. It probably does make some difference in the user experience, but what doesn’t?

There are a couple of other, less overtly technical points mixed in here as well:

• Claim: Section 231 of the relevant law defines “Internet access service” in a way that explicitly “does not include telecommunications services.” (paragraph 32)

  Response: For one thing, the header immediately above that passage is “For purposes of this subsection, the following definitions shall apply”, and that section of the law is just about restricting children’s access to harmful material, not about general non-blocking provisions. But I think the more important criticism is that the definition being referenced also defines “internet access service” as

  a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers. Such term does not include telecommunications services.

  Again, it’s talking about a package of services, which suggests that Congress, in crafting this law, had in mind something rather different from fundamental broadband internet access as we know it today. In short, cable internet perhaps should not be considered an “internet access service” in this sense.

• Claim: Since the FCC, in the 2015 order, used its forbearance authority to decline to apply most of title II, this suggests that title II is not well suited to regulating modern broadband internet service. (paragraph 33)

  Response: Well duh. But the FCC, in the 2015 order, also decided that some part of title II was necessary. This suggests that it’s the best we’ve got.

• Claim: Congress’s intent with the Telecommunications Act was to “promote competition and reduce regulation”, and specifically, they did not want to make internet services subject to the common carrier rules. (paragraph 34)

  Response: Again, internet services as they existed in 1996 were much more bundle-centric than they are now, and while Congress arguably didn’t want to regulate the services of the time, it would be wrong to automatically conclude they would make the same decision today.

FCC precedent

When it comes to arguing from precedent, the proposal points out six prior instances in which the FCC classified internet access as an information service, not a telecommunications service (and thus not subject to title II), under both Democratic and Republican leadership. (paragraph 38)

• Claim: Previous “generations” of the FCC were closer to the passage of the Telecommunications Act and more likely to understand its intended meaning, so the current commission should tend to defer to its rulings. (paragraph 39)

  Response: Recent “generations” of the FCC are closer to the existence of the technology they’re ruling on. The world changes, and laws and policies need to change to keep up.

• Claim: Throughout multiple rulings, the FCC’s position has consistently been that the classifications of “information services” and “telecommunications service” in the Telecommunications Act were meant to reflect the definitions from earlier rulings and judgments from other agencies, and decisions should reflect the spirit of those earlier judgments. (paragraph 41)

  Response: Again, technology is different. Those earlier judgments were made for a different kind of internet technology, and it would be wrong to apply them to the current situation without considering how the tech has changed.

I’m starting to see a theme here…

Effects on consumers

Then the FCC’s proposal goes on to describe how reclassifying broadband internet access back as an information service will benefit consumers. Their main thesis (paragraph 44) seems to be that removing the title II restrictions will encourage investment in internet infrastructure, which means fewer people without any internet access at all — a particular benefit for rural areas — as well as better connections and more competition for everybody.

• Claim: ISPs are less able to build new infrastructure and expand their services to additional customers because of the increased costs of complying with title II regulations (paragraphs 46-47) and the uncertainty of how the regulations may change in the future (paragraph 48).

  Response: Yep. I mean, this seems to make sense, though I’m skeptical that uncertainty is really having as much of an effect as the proposal may suggest. If the regulations are already as strict as they’re going to get, ISPs don’t have much of an excuse to further reduce their expansion plans because they’re worried about even more stringent rules.

• Claim: Increased investment in infrastructure is likely to lead to more access for poor neighborhoods and rural areas, higher speeds, more competition, and better prices. (paragraph 49)

  Response: I’m sure there will be more broadband internet access becoming available for many communities that don’t currently have it, and that’s definitely a good thing. And speeds will get faster simply because the technology is going to get better. But more competition and better prices? Not so fast. ISPs operated without the burdens of title II for decades prior to 2015, and look where we wound up: by the FCC’s own 25/3 definition of broadband (that is, 25 Mbps download and 3 Mbps upload speed), only 22% of the country has a choice between multiple service providers, according to the 2016 internet access services report, and that’s probably confined to certain parts of major cities. It’s well known that most of the country lives under a cable internet monopoly. Even without title II regulations to contend with, I expect the major ISPs to focus more on content and advertising than on anything that might increase competition.

• Claim: The justification for the 2015 Open Internet Order focused primarily on hypothetical problems facing consumers, with only four examples of actual harm done to internet users that would be prevented by title II classification. (paragraph 50) And it’s not stated outright, but implied, that the hypothetical problems described in the order wouldn’t actually happen, even without title II (still paragraph 50); and further, that the reclassification has minimal benefit to internet users (paragraph 51).

  Response: BOOM. I can’t do better than linking to this post from Free Press that lists 10 instances of major ISPs blocking selected traffic outright, one case in which Verizon would be selectively favoring traffic if not for rules prohibiting it, and a report from European regulators finding that similar practices had adversely affected many people’s internet usage on that continent.

All in all, I think there’s a tradeoff. Without title II regulation, some consumers will benefit from having broadband internet where they didn’t before, whereas others — perhaps many others — will lose out by being unable to access certain websites and services. I happen to think the potential loss is a bigger issue because of the sheer number of people it will affect, and especially because I believe there are ways to encourage expansion of internet service and healthy competition between ISPs without imposing the full burdens of title II. Like, say, roughly what the FCC did in 2015, at least until Congress decides to fix the problem with new legislation.

Probably the most important thing to remember is that what is good for the ISPs, reduced regulation, is not necessarily good for the consumer.

Conclusions

I’ve gone through the section of the proposal that deals with reclassifying broadband internet and basically issued point-by-point rebuttals where I have them. You may have noticed some gaps in the paragraph numbers; that’s because there are a few points that I just agree with, and several more that I don’t have any meaningful comment on, usually because they relate to the business side of being an ISP.

And I don’t mean to demonize ISPs here (except for the ones that use anticompetitive or censorious business practices — keeping my eye on Comcast, AT&T, Verizon, and Time Warner especially). ISPs are people too, apparently… seriously though, they do provide an essential service. But we still have to recognize that ISPs will act in their best interest, which is typically not the best interest of the rest of us.

Of course, the ISPs’ side of this net neutrality debate is well represented in Washington, between the pro-business FCC majority, the many comments from the business’s lawyers, and the many more completely fake comments that have apparently been posted against net neutrality. The consumers’ side needs all the well-articulated help it can get, especially since Ajit Pai says he’s not considering comment numbers when the committee makes a decision. In my next post, to come shortly (the comment deadline is tomorrow, yikes), I’m going to take my analysis of the proposal and draft a comment to submit to the FCC. I hope you’ll consider doing the same!

Assorted Links

• Battle for the Net, the focal point for the campaign for net neutrality
• From Free Press, a list of past net neutrality violations
• That one time an entire town in Canada lost internet access because of a monopoly
• A post by Gigi Sohn, formerly of the FCC, describing how to write an impactful comment
• A detailed article from Techcrunch with more advice for commenting on the proposal
• A Techdirt post about fake comments opposing net neutrality
• Communications Act of 1934 (Wikipedia)
• Telecommunications Act of 1996 (Wikipedia)