[opendtv] Re: A challenge for Craig
- From: Craig Birkmaier <brewmastercraig@xxxxxxxxxx>
- To: opendtv@xxxxxxxxxxxxx
- Date: Sat, 07 Oct 2017 08:38:04 -0400
On Oct 6, 2017, at 8:11 PM, Manfredi, Albert E <albert.e.manfredi@xxxxxxxxxx>
wrote:
Tell you what, Craig. I'll ignore everything else you write, if you cannot
answer these two very simple questions. (Responding to the subject line of
this post, or I'll assume you couldn't answer the trivial questions.)
1. Does this FCC want to classify broadband service as an information
service, or as a telecom service?
I don’t read minds, but I am fairly sure that the Pai FCC intends to return to
the “information service” designation that existed before the Title II
decision.
2. Given your answer to #1, according to this *direct* quote, how did the
Supreme Court say that broadband service would have to be regulated?
From that quote one could wrongly assume they are stating that Information
services ARE subject to title II regulation, while pure telecommunications
services are NOT. But one must read the entire decision to understand what they
decided.
-----------------------------
https://www.law.cornell.edu/supct/html/04-277.ZS.html
The Communications Act of 1934, as amended by the Telecommunications Act of
1996, defines two categories of entities relevant here. "Information service"
providers-those "offering . a capability for [processing] information via
telecommunications," 47 U.S.C. § 153(20)-are subject to mandatory regulation
by the Federal Communications Commission as common carriers under Title II of
the Act.
----------------------------
Don't go wandering off on verbose tangents, or I'll assume this is beyond you
already. The answer can be no more complicated than, "According to *this
exact quote*, the Supreme Court says that broadband service is subject to ...
So I gave you the benefit of the doubt and reread the entire decision AND I
looked up the federal codes referenced in the first paragraph.
As best I can understand, the sentence you are holding out as supporting you
position is WRONG, as is the following sentence - they are exactly backwards if
you read the definitions and the Computer II rules that are discussed in this
paragraph and those that follow.
The only way I can interpret this is that in the second paragraph the Court is
stating what the 9th Circuit held, which is what they are reversing.
So let’s start with Computer II - here is a description from Wiki:
https://en.wikipedia.org/wiki/FCC_Computer_Inquiries
Computer II Edit
Main article: Second Computer Inquiry
In 1976, the FCC was astounded by the number of hybrid cases that used both
"pure communication" and "pure data processing" thus leading to the launch of
the Second Computer Inquiry.[10] After Computer I took effect, new
technological developments in the telecommunications and computer industries
exposed flaws in its definitional structure approach to evaluating the
"hybrid category".[11]Dumb terminals had become smart, the cost of computer
processing units (CPU's) dropped, logical networks overlaying physical
networks, and microcomputers made their appearance that set the stage for the
scrapping of Computer Inquiry I.[6] The Commission's situation was "more
complicated" and eventually led to the birth of the basic versus enhanced
services dichotomy.[6] This established a division between “common carrier
transmission services from those computer services which depend on common
carrier services in the transmission of information.”[6]
Basic versus Enhanced Dichotomy Edit
If a carrier offers a pure transmission over a path that is transparent in
terms of its interaction with customer supplied information, the
FCCconsidered this to fall into the basic service category.[6][12] Basic
service includes processing the movement of information and computer
processing, which includes protocol conversion, security, and memory
storage.[11] The category of basic service is everything from "voice
telephone calls" to a phone company's lease of private lines.[13]
If a carrier offers services over common carrier transmission facilities that
employ computer processing applications that act on the format, content,
code, protocol or similar aspects of the subscriber's transmitted
information; provide the subscriber additional, different, or restructured
information; or involve subscriber interaction with stored information, the
FCC consider this to fall into the enhanced services category.[13] The
Commission found that e-mail, voice mail, the World Wide Web, newsgroups, fax
store-and-forward, interactive voice response, gateway, audiotext information
services, and protocol processing are enhanced services.[14]
The FCC did not want to fall into the same trap as they did with Computer
Inquiry I and having a hybrid category. They wanted to make sure that every
application fell into either the basic or enhanced service. "The Commission
made the classification dependent upon the nature of the activity
involved."[6] The nature of the activity involved would determine if it fell
into the communications or data processing service.[10] This changed the
process from an examination of the technology to an examination of the
service provisioned.[10]
So there you have the background the Court is building its 2005 decision upon.
Enhanced services are NOT subject to Title II regulation while Basic services
ARE.
Now look at the paragraph you build your position upon. It cites a number of
definitions from section 153 of The Communications Act.
These citings are for DEFINITIONS of services, NOT how they should be
regulated, but there is still room for some confusion. The paragraphs cited do
not match the definitions that were quoted. So here is a link to the actual
section 153 of the Communications Act:
https://www.gpo.gov/fdsys/pkg/USCODE-2011-title47/pdf/USCODE-2011-title47-chap5-subchapI-sec153.pdf
And here are the pertinent definitions cited by the Court:
(50) Telecommunications
The term ‘‘telecommunications’’ means 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.
(53) Telecommunications service
The term ‘‘telecommunications service’’ means 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.
(24) Information service
The term ‘‘information service’’ means 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.
Now for the important part: From later in the paragraph from which you quoted:
These two classifications originated in the late 1970’s, as the Commission
developed rules to regulate data-processing services offered over telephone
wires. Regulated “telecommunications service” under the 1996 Act is the
analog to “basic service” under the prior regime, the Computer II rules.
Those rules defined such service as a “pure” or “transparent” transmission
capability over a communications path enabling the consumer to transmit an
ordinary-language message to another point without computer processing or
storage of the information, such as via a telephone or a facsimile. Under the
1996 Act, “[i]nformation service” is the analog to “enhanced” service,
defined by the Computer II rules as computer-processing applications that act
on the subscriber’s information, such as voice and data storage services, as
well as “protocol conversion,” i.e., the ability to communicate between
networks that employ different data-transmission formats.
In the Declaratory Ruling under review, the Commission classified broadband
cable modem service as an “information service” but not a “telecommunications
service” under the 1996 Act, so that it is not subject to mandatory Title II
common-carrier regulation.
Do you get it now? The Court is UPHOLDING the original FCC declaratory ruling
that Cable Modem service is an infrormation service, not a telecommunications
service. Ultimately it finds:
Held: The Commission’s conclusion that broadband cable modem companies are
exempt from mandatory common-carrier regulation is a lawful construction of
the Communications Act under Chevron and the Administrative Procedure Act.
Pp. 8—32.
AND
The Court thinks that the Commission has provided a reasoned explanation for
this decision. The traditional reason for its Computer II common-carrier
treatment of facilities-based carriers was that the telephone network was the
primary, if not the exclusive, means through which information service
providers could gain access to their customers. The Commission applied the
same treatment to DSL service based on that history, rather than on an
analysis of contemporaneous market conditions. The Commission’s Declaratory
Ruling, by contrast, concluded that changed market conditions warrant
different treatment of cable modem service. Unlike at the time of the DSL
order, substitute forms of Internet transmission exist today, including
wireline, cable, terrestrial wireless, and satellite. The Commission
therefore concluded that broadband services should exist in a minimal
regulatory environment that promotes investment and innovation in a
competitive market. There is nothing arbitrary or capricious about applying a
fresh analysis to the cable industry. Pp. 29—31.
And one more thing...
(a) For the Commission, the question whether cable companies
providing cable modem service “offe[r]” telecommunications within §153(46)’s
meaning turned on the nature of the functions offered the end user. Seen from
the consumer’s point of view, the Commission concluded, the cable wire is
used to access the World Wide Web, newsgroups, etc., rather than
“transparently” to transmit and receive ordinary-language messages without
computer processing or storage of the message. The integrated character of
this offering led the Commission to conclude that cable companies do not make
a stand-alone, transparent offering of telecommunications. Pp. 15—17.
So here the Supreme Court is applying the Enhanced Services test, which is now
defined as “information services.”
Cable modems do not constitute a stand alone, transparent offering of
telecommunications. Yet you can use VOIP applications via a cable modem
service. Even here the Court can fall back on the law, as the 1996 update to
the Communications Act specifically defines VOIP services offered by a cable
company as a “telecommunications Service” subject to Title II regulation.
So I hope this settles the argument. You had a point in that the sentence you
quoted said something completely opposite from what the Supreme Court actually
decided. This is why I went to such great lengths to try to get you to
understand the entire document you posted, rather than the one sentence that
APPEARED to support you position.
PEACE!
Regards
Craig
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