[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.)

[tptacek]

Broadband ISPs today, you say.

[wtallis]

As opposed to broadband ISPs in 1996? Do you not think a Senator from 1996 would readily lump today's Google Fiber in the same category as an ISDN provider in 1996?

Do you somehow think that the overturning of Chevron means that courts do not need to figure out where the role of Google Fiber today fits into the categories defined in 1996?

[tptacek]

No, I do not, and, more importantly, nothing in the definitions section of the Act would dictate that. Yes: I do think that Loper means that courts aren't going to do this kind of freelancing anymore.

[wtallis]

> Yes: I do think that Loper means that courts aren't going to do this kind of freelancing anymore.

And yet, the court seems to have rendered a decision. They don't seem to have declared that the question is not theirs to answer.

[tptacek]

Sorry, you're right. I spoke imprecisely. The courts aren't going to allow the regulatory state to do this kind of freelancing anymore. The courts themselves will continue to produce judge-made law, of course. Which is Kagan's complaint in her Loper dissent.