Fairly clear evidence that those who do not try to understand the technical
realities involved will continue to misconstrue, coming to erroneous
conclusions.
So, this is from 2005:
--------------------------------------
https://www.law.cornell.edu/supct/html/04-277.ZS.html
SUPREME COURT OF THE UNITED STATES
NATIONAL CABLE & TELECOMMUNICATIONS
ASSOCIATION et al. v. BRAND X INTERNET
SERVICES et al.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 04-277.Argued March 29, 2005-Decided June 27, 2005
--------------------------------------
Four main issues to highlight here.
1. Decent definitions, but they got it backwards
"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. Conversely, telecommunications carriers-i.e., those 'offering .
telecommunications for a fee directly to the public . regardless of the
facilities used,' §153(46)-are not subject to mandatory Title II regulation.
These two classifications originated in the late 1970's, as the Commission
developed rules to regulate data-processing services offered over telephone
wires."
Glaring error there, as to what is classified under Title II, although later on
they seem to have recovered from this mistake. Still let's understand the
TECHNICAL REALITIES. An information service, according to their definition and
understanding, is something like a web site. A web site will "process
information," and it will make it available to users "via telecommunications."
And they go on to elborate that an information service offers "data processing
services offered over telephone lines." This would include your bank, a tax
form preparation service, Amazon, nbc.com, that remote computer you accessed in
the 1970s, over telephone lines, what have you.
Whereas a telecom service "offers telecoms for a fee, regardless of facilities
used." Raw carriage. Fine, except they got it backward as to who is subject to
Title II.
Okay, I can easily live with those definitions.
2. Technical confusion
"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."
Get real! Fewer words, more comprehension, please. There is no functional
difference between using the telecom to transfer voice, a fax message (i.e.
graphics, between two smart end systems attached to the telecom lines), HTTP
between a web server and client, e-mail, usenet, audio/video streaming, or
anything else. The differences are only in degree of sophistication of
processing required at either end of the comm link. And perhaps the raw
capacity needed of that comm link.
In all of these examples, the telecom plays the SAME ROLE. It transparently
routes the electrical signals, such that the systems connected at either end
can encode and decode the information. Even analog voice. You need microphones
and speakers, at either end, to convert acoustic waves into EM waves. The telco
carries and routes only the EM waves (electrical or optical signals). The
processing at either end is done by equipment manufactured, owned, operated,
housed, in general, by other than the telco. This equipment must be designed to
interface properly with the telco lines, and that's all.
3. False premises lead to false conclusions
"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."
First of all, they should have gone back and corrected their mistake in #1
above, where they said quite clearly: "'Information service' providers-those
'offering . a capability for [processing] information via telecommunications,'
... are subject to mandatory regulation by the Federal Communications
Commission as common carriers under Title II of the Act." So which is it?
More importantly, the verbose and confused differentiation, which they
attempted, doesn't hold water. What people need broadband service for is to
gain ACCESS to, say, their bank, or Amazon, or the e-mail server used by the
other guy, or cbs.com. It is simply wrong to think that the broadband service
provider *is* those services. The broadband provider must transparently route
the packets to and from those end points, functionally no different from
routing your old analog telephone call. Yes, the broadband provider MAY
SOMETIMES play both roles. For example, people may CHOOSE to use the broadband
provider's own e-mail service ... or not! I don't, for example.
So, there is absolutely NO technically accurate substance to their claim that
broadband service should be classified differently from any telecom service.
They are simply confused. They should have informed themselves better, and
avoided all this nonsense from back then.
And here's more glaring examples of technical illiteracy:
"Respondents argue unpersuasively that the Commission's construction is
unreasonable because it allows any communications provider to evade
common-carrier regulation simply by bundling information service with
telecommunications. That result does not follow from the interpretation adopted
in the Declaratory Ruling. The Commission classified cable modem service
solely as an information service because the telecommunications input used to
provide cable modem service is not separable from the service's data-processing
capabilities, but is part and parcel of that service and integral to its other
capabilities, and therefore is not a telecommunications offering."
Bull sh*t! It is absurd to believe that your bank's web site, or Amazon, or any
of zillions of other services, are "part and parcel of that [cable modem]
service." This is just too incoherent to be believed. No one can possibly think
that Amazon is "part and parcel" of Verizon, Cox, Charter, etc, all at the same
time. Amazon simply does business over those broadband lines.
And more:
"When an end user accesses a third party's Web site, the Commission concluded,
he is equally using the information service provided by the cable company as
when he accesses that company's own Web site, its e-mail service, or his
personal webpage."
What kind of bulls*t explanation is this? This is like saying that your Aunt
Sally, at the other end of the phone link, is "part and parcel" of the PSTN, in
legacy voice telephone terms. It's absurd. I doubt anyone today really thinks
that when doing business with his bank, over broadband, that bank is part of
Verizon or Cox.
4. The FCC finally got it right.
"The Court thinks that the Commission has provided a reasoned explanation for
this decision."
Yes, but not until 2015. Understanding the technology, even at a fairly
elementary level, is essential, to come to the correct conclusions. Instead,
perpetrating technically-illiterate arguments only plays in the hands to the
disingenuous special interests, who will happily use the ridiculous arguments
to suit their self-interests, even if they (hopefully) are more clued in about
the technical truth.
Bert
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