So once again, an FCC that is so profoundly ignorant cannot be tolerated.
Either they are that stupid, or they are on the take. Either way, it can't
persist.
This is the feeble rationale:
"Chairman Ajit Pai's FCC argued that broadband is not a 'telecommunications
service' as defined in federal law, and therefore it must be classified as an
information service instead."
We went through the definitions of the telecom acts of 1934 and 1996, and that
comment is plainly false. Congress wrote the acts. **The FCC** misclassified
broadband service as an information service, NOT Congress. Information services
are very clearly businesses which are users of the telecoms. Were it not for
the telecom service, people would have no access to these businesses. So let's
see some more twisted lawyer-babble:
"In any event, regardless of consumer perception, the Commission found that
broadband providers in fact offer a single, inextricably intertwined
information service. Because information processing must be combined with
transmission for users to reach the Internet, the Commission reasonably
determined that the information processing capabilities are an integral part of
the service and make broadband an information service under the Act. Finally,
the Commission found that public policy considerations, including the costs of
Title II regulation compared to its uncertain benefits, supported the
Commission's classification decision."
Get a clue, FCC. It's your job. And pay attention to "consumer perceptions,"
instead of ignoring them.
The broadband service, the Internet in general, the telephone network before
them, simply forward the information content. They don’t create the content.
Just because the user might use the same telephone for many things,
"inextricably intertwined," the vast majority of people are not STUPID enough
to think that the telephone is the bank, the florist, Aunt Sally, or that taxi
service you just called. I doubt that anyone but Chairman Pai would think that
Amazon, Netflix, and Verizon, are all the same thing.
Stupidity? On the take? Which is it?
Bert
---------------------------------------------
https://arstechnica.com/tech-policy/2018/10/ajit-pais-fcc-tells-court-that-net-neutrality-rules-were-illegal/
FCC vs. net neutrality —
FCC tells court it has no “legal authority” to impose net neutrality rules
FCC defends repeal in court, claims broadband isn't "telecommunications."
Jon Brodkin - 10/12/2018, 1:22 PM
The Federal Communications Commission opened its defense of its net neutrality
repeal yesterday, telling a court that it has no authority to keep the net
neutrality rules in place.
Chairman Ajit Pai's FCC argued that broadband is not a "telecommunications
service" as defined in federal law, and therefore it must be classified as an
information service instead. As an information service, broadband cannot be
subject to common carrier regulations such as net neutrality rules, Pai's FCC
said. The FCC is only allowed to impose common carrier regulations on
telecommunications services.
"Given these classification decisions, the Commission determined that the
Communications Act does not endow it with legal authority to retain the former
conduct rules," the FCC said in a summary of its defense filed yesterday in the
US Court of Appeals for the District of Columbia Circuit.
The FCC is defending the net neutrality repeal against a lawsuit filed by more
than 20 state attorneys general, consumer advocacy groups, and tech companies.
The FCC's opponents in the case will file reply briefs next month, and oral
arguments are scheduled for February.
Rules were upheld in 2016
The FCC's argument that its net neutrality rules are illegal is notable for a
couple reasons. Judges at the DC Circuit appeals court ruled in 2016 that the
rules were legal, allowing them to remain in place despite the broadband
industry's attempt to overturn them.
The FCC repealed the net neutrality rules anyway after the majority changed
hands from Democrats to Republicans. In defending that repeal, Pai's FCC isn't
merely claiming that the rules were a bad idea—the FCC is claiming it has no
authority to impose such rules at all.
The FCC's claim that it has no authority to impose net neutrality rules could
be important in determining whether state governments such as California's may
impose net neutrality rules similar to those repealed by the FCC. Pai claims
the FCC can both repeal its own rules and preempt states from enacting similar
ones, because broadband is an interstate service and state rules conflict with
the "federal policy of nonregulation."
But defenders of state rules say that the FCC cannot preempt state laws
regulating conduct over which the FCC claims it has no regulatory authority.
Defining broadband
The FCC's argument that broadband isn't "telecommunications" hinges on Pai's
interpretation of the Communications Act.
The Communications Act specifically defines telecommunications as "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." A telecommunications service is "the offering of
telecommunications for a fee directly to the public."
An information service, by contrast, is defined in the Act as "the offering of
a capability for generating, acquiring, storing, transforming, processing,
retrieving, utilizing, or making available information via telecommunications."
The information service definition "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."
Here's how the FCC's new brief argues that broadband is an information service:
The Commission reasonably classified broadband Internet access as an
information service because, among other things, it offers users the
"capability" for "'acquiring' and 'retrieving' information" from websites and
applications "and 'utilizing' information by interacting with stored data." The
Supreme Court held in Brand X that it was reasonable for the Commission to
conclude that Internet access is an information service, given that
"subscribers can reach third-party Web sites via 'the World Wide Web, and
browse their contents, [only] because their [broadband] provider offers the
capability for … acquiring, [storing] … retrieving [and] utilizing …
information.'". The agency made the same reasonable finding here.
Broadband isn’t a “distinct transmission service”
Broadband is an information service in part because it "inextricably
intertwines high-speed transmission with the information processing
capabilities provided by Domain Name Service (DNS) and caching," the FCC said.
"[B]roadband providers do not make a stand-alone offering of
telecommunications," the FCC also said. "[B]roadband providers generally market
and provide information processing capabilities and transmission together as a
single service, and consumers perceive that service to include more than mere
transmission."
Broadband customers "expect to receive (and pay for) a finished, functionally
integrated service that provides access to the Internet," rather than a
"separate" and "distinct transmission service," the FCC said.
The FCC continued:
In any event, regardless of consumer perception, the Commission found that
broadband providers in fact offer a single, inextricably intertwined
information service. Because information processing must be combined with
transmission for users to reach the Internet, the Commission reasonably
determined that the information processing capabilities are an integral part of
the service and make broadband an information service under the Act. Finally,
the Commission found that public policy considerations, including the costs of
Title II regulation compared to its uncertain benefits, supported the
Commission's classification decision.
If broadband is "in fact" an information service as the FCC claims, then the
commission cannot impose net neutrality rules. The FCC in 2010 tried to impose
net neutrality rules without classifying broadband as a telecommunications
service, but Verizon sued and got the rules thrown out. The net neutrality
rules were upheld in court only after the FCC decided in 2015 to classify
broadband as telecommunications.
The Verizon court decision showed that the Communication Act "forbids
common-carriage regulation of information services," Pai's FCC said in its
brief. "Verizon further confirms that the Title II Order's conduct rules
effectively require broadband providers to operate as common carriers.
Maintaining the conduct rules would therefore contravene the Act."
Pai's FCC says the 2016 court decision upholding the net neutrality rules
doesn't prevent the FCC from changing its classification of broadband. That
ruling upheld the FCC's 2015 determination that broadband is
telecommunications, but it recognized that the FCC has some leeway to define
broadband as it wishes.
"A divided panel of this Court upheld that decision as a permissible exercise
of the agency's discretion, but specifically recognized that, under Brand X,
'classification of broadband as an information service was permissible,'" the
FCC said.
Broadband “simply transmit[s] information”
The state attorneys general and other entities suing the FCC have until
November 16 to file reply briefs. Final briefs are due November 27, and oral
arguments are scheduled for February 1.
In an earlier brief, Mozilla and other tech companies and consumer advocacy
groups argued that broadband is by definition telecommunications.
Broadband providers "simply transmit information between users," they wrote.
"None of Comcast, AT&T or Verizon adds scenes to the movies we watch online or
embellishes our friends' notes on a social media 'wall.' [Broadband] is a
transmission conduit; its nature is unchanged by the fact that it intentionally
allows reaching others' information services."
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