[granzymes]

>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]

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]

> 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]

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.

[wtallis]

> 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?

Does it? We have definitions for "information service" that clearly fit running a server, and "telecommunication service" defined in a way that clearly fits carrying data over wires, unmodified, and some potential gray area in between that might include looking up information to figure out how to correctly route other information.

You've repeatedly emphasized the "offering a capability" angle, and so does the court. On the subject of capabilities offered by ISPs, the court says:

> they offer a “feature[] permitting” consumers to stream videos stored on Netflix’s servers, [...] the “ability” to purchase gifts from information stored on Amazon’s servers, [...] the “capacity” to view posts stored on Facebook’s servers, [...] and the “power” to conduct a search using Google’s servers

But the court pretends that this piece of capability (feature/ability/capacity/power) being offered by ISPs (as opposed to Netflix, Amazon, et. al. who actually run the servers) is not exactly the telecommunications service the FCC seeks to regulate as a telecommunications service. The court appears to believe that merely being able to use the word "capability" to describe ISPs (while implicitly lumping together functions performed by ISPs with those performed by Netflix, et. al.) is sufficient to make ISPs not telecommunications services.

[tptacek]

Again, I would come back at you and say that you are talking about the Internet as if it was something markedly different from CompuServe, Prodigy, and AOL. Obviously, it is, but I don't think that distinction was legible to the authors of the 1996 act. Meanwhile: the courts, post-Chevron, are going to look at the text of the act in its 1996 context, without deferring to agencies about what the spirit of that act was.

This is a whole thread of people over and over and over again saying that the courts should read the 1996 Telecommunications Act in light of what telecommunications looks like in 2025 (or what they, 2025 practitioners, believe a 1996 practitioner should have thought --- as a former 1996 practitioner my response to that is: LOL). That's exactly what the post-Chevron courts are not going to do.

So far as I know, this distinction made it to SCOTUS just once (and: in the 21st century!), and when it did, the court said: the Internet is like Prodigy, CompuServe, and AOL.

[wtallis]

You're using the term "the Internet" to refer to a combination of ISPs and endpoint services operated by other companies. That is very analogous to the combination of AOL and the Bell system connecting your modem to AOL's modem.

But broadband ISPs today occupy the place of the Bell system, plus some of the lower layers of AOL, and broadband ISPs do not occupy the place of the higher layers of AOL (the search engines, content publishing, etc.).

AOL without any means for your modem to reach AOL's modem is roughly similar to the World Wide Web without any ISP to carry your packets to and from somebody else's servers. (And I've long believed we need stronger regulations to make it clear that ISPs are responsible for providing more than just WWW access.)

[vel0city]

> Internet service as something built on top of raw telecom circuits

My service agreement with my ISP explicitly says it is a circuit.

And also the argument isn't if it's an Internet service or a telecommunications service, it's if it's an information service or telecommunications service. Quit throwing your own common parlance terminology here and use the language in the law and the courts please!

[tptacek]

The text of your service agreement has exactly zero to do with this dispute.

[vel0city]

It's entirely the center of this dispute. What is it that I'm actually paying my ISP for? I'm paying them for a telecommunications circuit. I'm not paying them because they host or manipulate data I care about, I pay them so I can telecommunicate with actual information services.

[wizzwizz4]

If the Telecommunications Act of 1996 saw the internet of 1996 as built on top of raw telecom circuits, that might have something to do with the fact that it was. Nowadays, it's the other way around: the telecoms system is built on top of raw internet circuits.

[vel0city]

The ISP doesn't offer me the capability to post this comment. Nowhere in my service agreement with them is hacker News mentioned.