Comments on: The White House’s New Internet Policy, and thoughts on Comcast v. FCC http://larrydownes.com/the-white-house%e2%80%99s-new-internet-policy-and-thoughts-on-comcast-v-fcc/ Sun, 15 Jan 2012 00:04:35 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: larry http://larrydownes.com/the-white-house%e2%80%99s-new-internet-policy-and-thoughts-on-comcast-v-fcc/comment-page-1/#comment-1331 larry Fri, 22 Jan 2010 23:21:54 +0000 http://larrydownes.com/?p=1247#comment-1331 The statutory definitions, which I've printed in an earlier post, are completely unhelpful. They were inherited from an earlier consent decree in the AT&T antitrust litigation. If they made sense in 1974, when written, they surely were out-dated by 1996 when they were incorporated word-for-word in the act that was intended to deregulate the communications industry. Both definitions or neither could be applied to Internet access with equal justification--the language of the definitions is vague enough to cover any interpretation. In their original meaning in the AT&T decree, the intention was to separate phone calls from data transmissions, back when the two were clearly different activities offered by different providers. In those days, there was no such thing as public data transmission, for one thing. And phone companies were prohibited from offering private data services. The decision to treat Cable (and later DSL) provisioning outside of the common carrier rules was a decision by the FCC. The Supreme Court in the Brand X case applied the Chevron Doctrine and ruled that the FCC's interpretation of the definitions was not irrational, and therefore upheld them. The statutory definitions, which I’ve printed in an earlier post, are completely unhelpful. They were inherited from an earlier consent decree in the AT&T antitrust litigation. If they made sense in 1974, when written, they surely were out-dated by 1996 when they were incorporated word-for-word in the act that was intended to deregulate the communications industry.

Both definitions or neither could be applied to Internet access with equal justification–the language of the definitions is vague enough to cover any interpretation. In their original meaning in the AT&T decree, the intention was to separate phone calls from data transmissions, back when the two were clearly different activities offered by different providers. In those days, there was no such thing as public data transmission, for one thing. And phone companies were prohibited from offering private data services.

The decision to treat Cable (and later DSL) provisioning outside of the common carrier rules was a decision by the FCC. The Supreme Court in the Brand X case applied the Chevron Doctrine and ruled that the FCC’s interpretation of the definitions was not irrational, and therefore upheld them.

]]> By: Anonymous http://larrydownes.com/the-white-house%e2%80%99s-new-internet-policy-and-thoughts-on-comcast-v-fcc/comment-page-1/#comment-1329 Anonymous Fri, 22 Jan 2010 17:54:00 +0000 http://larrydownes.com/?p=1247#comment-1329 The idea that internet access (as opposed to the underlying physical infrastructure which was at issue in the earlier FCC broadband cases) is not a telecommunications service but an "information service" makes absolutely zero sense if you actually read the statutory definitions of those things. See Justice Scalia's dissent in Brand X. I agree the FCC decision against Comcast should be overturned on administrative law grounds. As far as the current rulemaking proceedings are concerned, they should make the distinction between the physical infrastructure and internet service (that is, the unaltered transmission of IP packets between endpoints) that the latter, since it is telecommunications, must be regulated under Title II common carrier regulations unless Congress changes the statute. The idea that internet access (as opposed to the underlying physical infrastructure which was at issue in the earlier FCC broadband cases) is not a telecommunications service but an “information service” makes absolutely zero sense if you actually read the statutory definitions of those things. See Justice Scalia’s dissent in Brand X.

I agree the FCC decision against Comcast should be overturned on administrative law grounds. As far as the current rulemaking proceedings are concerned, they should make the distinction between the physical infrastructure and internet service (that is, the unaltered transmission of IP packets between endpoints) that the latter, since it is telecommunications, must be regulated under Title II common carrier regulations unless Congress changes the statute.

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