The Federal Communications Commission is currently (and once again) locked in a legal battle with the telecom industry over net neutrality — the idea that Internet service providers should treat online traffic equally, regardless of what’s being sent and who’s sending or receiving it. In advance of a Dec. 4 hearing on this appeal, a group of 29 federal legislators has let its position be known.
The group, led by Sen. Ed “Biz” Markey of Massachusetts and Rep. Anna Eshoo of California, filed an amicus brief [PDF] with the D.C. Circuit Court of Appeals, which will be deciding whether or not the FCC overstepped its authority when it recently reclassified broadband Internet service as a more-regulated Title II “common carrier.”
Nearly two years ago, a federal appeals court ruled that the Open Internet Order of 2010 — the FCC’s first attempt at net neutrality — was a well-intentioned piece of regulation, but that the Commission lacked authority to enforce the rules because it had mis-categorized broadband as a lightly regulated “information service.”
Earlier this year, the FCC narrowly approved the 2015 Open Internet Order, which reinstated the core of the 2010 Order while also changing its classification of broadband so that it now falls under the same regulatory umbrella as landline phone service.
Opponents of reclassification claim that broadband was rightfully categorized as an “information service,” and thus outside the FCC’s authority for Title II regulation.
Section 153 of the Telecommunications Act of 1996 defines an “information service” as one that offer 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.”
To neutrality supporters like Markey and Eshoo, this definition specifically omits operators of telecom systems from being labeled an “information service.” This, some contend, would be like saying the truck that delivers your newspapers is in the journalism business.
The legislators point to what they believe is the more appropriate definition from the 1996 law, that of a “telecommunications service,” meaning the offering of telecommunications for a fee directly to the public… regardless of the facilities used.”
In their brief, the lawmakers say “There is no doubt” that this definition applies to broadband.
“First, broadband Internet service is plainly ‘telecommunications.’ Anyone who uses a broadband connection – whether fixed or mobile – to send an email, or to visit a website, or to log into his or her bank account, is transmitting ‘information of the user’s choosing,'” reads the brief, “the user is choosing what information to transmit over a broadband network from his or her computer.”
Additionally, the brief notes that the primary difference between “information” and “telecommunications” services is that the former creates the content and the latter delivers it without alteration.
“If you visit Orbitz to purchase a plane ticket to Paris, your broadband provider transmits the Orbitz webpages to you without changing their form or content. If you send an email using Gmail to your friend telling him how excited you are that you’ve purchased the tickets to Paris, your broadband provider does not alter the form or content of the email message either,” explain the legislators. “In all of these cases, you use an information service – email, web browsing, video streaming, social networking – that is provided by a third party. Your broadband Internet access provider’s role is to transmit information between the user and the third party, without altering the information in any way.”
They contend that — from a consumer perspective — Internet is no “different from traditional telephony service,” in that the user enters some numbers or letters into a device on one end in the hope that their service provider will connect them to who or what they want to communicate with.
“The caller doesn’t know along which path the call is traveling through the telephone network. Nor does she specify a particular telephone – and indeed, several telephones may ring when a particular number is called – and if that number is associated with a mobile phone then the caller likely does not know the precise geographic location of the recipient at the time the call is made,” argues the brief. “From the perspective of the caller, all that matters is that the telephone number is associated with a certain person or entity that the caller wishes to reach.”
The telecom plaintiffs say that there are aspects of broadband communications that make ISPs an information service.
Among those is Domain Name Service [DNS], which is how your broadband provider knows that typing in Consumerist.com means to connect with the IP address of our host server.
But the legislators argue that this contention actually works against the information services assertion.
“DNS lookup is an important technology, but it is also clearly a technology that is employed in the ‘management, control, or operation of a telecommunications system or the management of a telecommunications service,'” explains the brief, once again citing the exception to the information services definition. “DNS is a tool that firms that operate telecommunication systems employ to make Internet usage convenient for customers using their system. It is the Internet version of automated telephone directory service – a service that established FCC precedent has consistently classified as a function that falls within the telecommunications management exception.”
Likewise, claim the lawmakers, data caching on ISP’s networks is not something that sets broadband apart from defined telecommunications services but is a technology only exists because people are using their ISP to access the Internet.
“The technology exists for the sole purpose of improving the performance of the telecommunications service offered by companies providing broadband Internet access,” reads the brief. “The technology is within the scope of the exception for ‘management’ of a telecommunications system, and is for that reason excluded from the definition of ‘information service.'”
With more than two months to go before the appeals court hearing, expect to hear more arguments for against neutrality and reclassification.
In addition to Markey, the Senators who signed the brief were Tammy Baldwin (WI), Al Franken (MN), Angus S. King, Jr. (ME), Richard Blumenthal (CT), Bernie Sanders (VT), Ron Wyden (OR), Cory A. Booker (NJ), and Barbara Boxer (CA).
Over in the House, Eshoo was joined in signing by Nancy Pelosi (CA), John Conyers, Jr. (MI), Mike Doyle (PA), Keith Ellison (MN), Sam Farr (CA), Raúl M. Grijalva (AZ), Michael M. Honda (CA), Jared Huffman (CA), Barbara Lee (CA), John Lewis (GA), Zoe Lofgren (CA), Betty McCollum (MN), Eleanor Holmes Norton (DC), Chellie Pingree (ME), Jared Polis (CO), Jan Schakowsky (IL), José E. Serrano (NY), Mark Takano (CA), Nydia M. Velázquez (NY).
