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The Courts

ISPs Claim Title II Regulations Don't Apply To the Internet Because "Computers" 124

Posted by timothy from the preemptive-chewbacca-defense dept.
New submitter Gryle writes: ArsTechnica is reporting on an interesting legal tactic by ISPs in the net neutrality fight. In a 95-page brief the United States Telecom Association claims Internet access qualifies as information service, not a telecommunication service, because it involves computer processing. The brief further claims "The FCC's reclassification of mobile broadband internet access as a common-carrier service is doubly unlawful." (page 56)
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ISPs Claim Title II Regulations Don't Apply To the Internet Because "Computers" More

ISPs Claim Title II Regulations Don't Apply To the Internet Because "Computers"

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  • Interesting argument (Score:5, Insightful)

    by gcnaddict ( 841664 ) on Saturday August 01, 2015 @12:19PM (#50229659)
    ...except it all falls on its face because ultimately, the networks of computers are being used to communicate data between humans and other computers. hence telecommunication.

    • Re:Interesting argument (Score:4, Insightful)

      by khasim ( 1285 ) <brandioch.conner@gmail.com> on Saturday August 01, 2015 @12:35PM (#50229705)

      Even if that wasn't the case, they're arguing AGAINST being a "common carrier".

      Won't this make them responsible for any of the crap (death threats, libel, etc) that they distribute as part of them being an "information service"?

      • and deaths, when they happen. First hacking death, e.g. by someone messing with a defib remotely? (This possibility was discussed in a defcon talk last year) Well if they're not protected as common carriers, things could get interesting.

      • Re:Interesting argument (Score:5, Informative)

        by ShanghaiBill ( 739463 ) on Saturday August 01, 2015 @01:21PM (#50229893)

        Won't this make them responsible for any of the crap (death threats, libel, etc) that they distribute as part of them being an "information service"?

        Yes, but with responsibility comes control. They will be able to censor and control what crosses their network, shut out competitors, and charge premiums. They will be able exploit their local monopolies to muscle into the content business.

      • Yes, that's the double-edged sword here. If they're a common carrier, they fall under net neutrality but are shielded from liability for the content they carry. If they're an information service, then they are not subject to net neutrality, but are liable for the information they claim they are disseminating.

        The ISPs are trying to have their cake and eat it too - be classified as an information service so they are not subject to net neutrality, but not be liable for for the information they're transmit

    • Re:Interesting argument (Score:5, Insightful)

      by rtb61 ( 674572 ) on Saturday August 01, 2015 @12:43PM (#50229743) Homepage

      The communication is between humans and humans. A human at one end craft content and store in on a computer in a accessible format. The end user then crafts a request for that information and sends it via the internet and the stored communication from the content creator is then delivered to the end user.

      The ISP claim is a stupid as is possibly imaginable, easy proof, their claim basically is that an answer machine hooked into a phone service means that it is no longer a telecommunications service, or that a phone text message in not communications or that email is not communications or that forum posting in not communications or that chat is not communications or that instant messaging is not communications or a live video stream is not communications or that video chat is not communications. Their claim is so laughably stupid that the court should penalise them for making it.

      • Re: (Score:3)

        by anegg ( 1390659 )
        Agreed. The original GENIE, AOL, COMPUSERVE etc. were "information services." The provider managed the content, or at least managed the forums within which the content was posted. Today's ISPs don't provide the information; they transport it from the provider to the consumer. They have dropped much of what was partially an information service - no more UseNet News, limited support for personal web sites, no FTP servers, often nothing more than electronic mail. So what if computers are involved - doesn'

        • Information service is defined by law separate from what you are describing as an information service. It is as apposed to the legal definition of a telecommunications service. When speaking of such in pertaining to the FCC actions, we need to consider the legal definition and not the common one.

          • Re: (Score:1)

            by Anonymous Coward

            Yes and what isps do now fits the legal definition of telecommunications service better than information services.

            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.

            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.

            Whereas information service is supposed to be a superset of telecommunications 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.

            The problem is ISPs as they are now no longer offer anything to acquire, store, generate, transform, process, utilize or make available information via telecommunications. One could argue they offer retrieving but the same arguments would apply to phone systems given that you can dial with them.
            Face it. They ar

            • Face it. They are telecommunications service providers. The jig is up they've been called on it. Congress delegated the authority to the FCC to make the call and even if it didn't and we call back on what congress decided, Congress decided 20 years ago that they were telecommunications service providers which is why they were up until the year 2002.

              Who is telling you these lies?

              Seriously, who is lieing to you about this 2002 crap? You are not the first person to bring it up, you are not the first person who

      • What you argue here is true but what we have in the news now is not about measuring old stuff by old definitions but new stuff by old definitions. And because of this mismatch between old vs. new definitions the definitions should be changed. The definitions are so old that they do not apply even in the modem/BBS era.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Also, are computers not involved in routing service for POTS service? PSTN isn't run anymore by manual operators and hasn't for some decades now.

      • Re: (Score:1)

        by KGIII ( 973947 )

        There was a manual phone directory service in a small town that held on to it for cultural reasons. They ceased functioning about ten years ago, if I recall correctly. They were in the state I now call home, I did not live here then, and I think they were Byron Pond or something along those lines? Basically go left out of my driveway, head down 16, get on 17, and go down to Coburn Gore (spelling?). Take that left up (it takes you way back to Weld and to Farmington if you want to head that far and do not min

        • Re: (Score:1)

          by KGIII ( 973947 )

          No, you will get lost. Go RIGHT out of my driveway. The other way takes you to Eustis. Yes, I have to label my mittens - and keep them on a string.

    • Re: (Score:3, Insightful)

      by Anna Merikin ( 529843 )

      This argument looks like a copyright infringer claiming copyright doesn't exist because the music, photo, whatever passed through a computer where it was deconstructed into ones and zeros, making it data, which is not able to be copyrighted.

      Like the parents-murdered who threw himself on the mercy of the court as an orphan.

      IANAL, etc.

    • more interesting when the FCC said the same thing (Score:2, Interesting)

      by Anonymous Coward

      This argument was even more interesting 13 years ago when the FCC ruled "that cable modem service is properly classified as an interstate information service and is therefore subject to FCC jurisdiction." https://transition.fcc.gov/Bureaus/Cable/News_Releases/2002/nrcb0201.html [fcc.gov]

      You might think that gives the ISPs a slam-dunk case, but what makes this complex is the U.S. Court of Appeals for the Ninth Circuit's decision in the Portland case, which classified cable modem service as both an "information servic

      • The Portland case doesn't really say that. It basically says that information services use telecommunication services to develop and deliver the information services. It in essence says cable companies were telecommunication companies when they offer telecommunications services carrying information services over their infrastructure.

        http://www.techlawjournal.com/... [techlawjournal.com]

        The news brief you linked to was about the FCC using this to develop and roll out broadband because it now has authority that can restrict or ov

    • Re: (Score:2)

      by hey! ( 33014 )

      Contrariwise show me a form of telecommunication that does *not* involve computers. Even plain old telephone service. Even if you discount the digital switching equipment, the PBXs at business locations are computers.

    • The definitions are from "47 U.S. Code 153 - Definitions" where:

      ---

      (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.

      (24) Information service
      The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing

  • United States Telecom Association (Score:5, Funny)

    by Anonymous Coward on Saturday August 01, 2015 @12:25PM (#50229675)

    The United States Telecom Association is arguing that its biggest service is not a telecom. Right...

  • The issue is not title 2 (Score:3, Insightful)

    by Karmashock ( 2415832 ) on Saturday August 01, 2015 @12:36PM (#50229713)

    The issue is the franchise licenses that give cable companies last mile monopolies on internet service.

    Open up last mile delivery of service to more providers... or you're handing ISPs a government backed monopoly contract.

    Fiber optic cable is CHEAP. I could run cable from where I live to the trunk line for at most a couple grand... And that would service about 10 gigabit internet connections.

    This whole issue is like the stupid debates we always have about entrenched government backed monopolies versus just "anyone"...

    Look at what is happening with cellphones versus the land line providers. Land line prices are collapsing and that is because people are ditching them for cellphones which is a "less" monopolistic market.

    Look, anyone that knows anything will tell you... give one company the ability to dictate prices and they're going to exploit it.

    Period.

    And the government really isn't any better here. You give the government the ability to dictate prices or control the service and they're going to do the same thing where they'll either slack off because you're not going to fire them if they're lazy... or they'll just bill you more through your taxes... and you can't even fire the fucks.

    So look... if you want service that isn't shitty... you need some competition. You need people to be able to vote with their feet and their wallets. They have to be able to say "this service is shitty so I shall give it ZERO dollars and this service is superior so I shall give it whatever seems reasonable to me."

    And that controls prices.

    In any market or industry or situation where that is not happening market forces cannot control prices. Consumers have to have choices. And the choice between DSL and Cable is bullshit.

    We shouldn't even be maintaining the copper lines anymore. Its fucking dumb. Fiber or choke on yak semen.

    • While I agree with parts of your argument, land lines are expensive more because they have millions of miles of physical wires to maintain. Cell towers do not have this burden.

      Also, Cell phone service for any smart phone is MUCH more expensive than landlines now if you are single. It's sort of like "$100 for 4" or "$100 for 1".

      That said, I use smartjack (flawlessly) over my internet. $19 a year. It's mainly a backup to find my cell phone and for extremely long gaming calls (can't get one player to use

      • Re:The issue is not title 2 (Score:4, Insightful)

        by Karmashock ( 2415832 ) on Saturday August 01, 2015 @01:10PM (#50229859)

        The cell towers buy internet bandwidth from wired networks and thus the cost of a cell tower is the cost of their share of land line bandwidth PLUS the cost of the tower.

        Keep in mind further that the links that connect cities together either are not or REALLY should not be anything but fiber. If you're replacing cobber lines with more cobber lines... then you're dumb. Fiber is just cheaper. It should be what is run everywhere.

        And while people will say "but we can't afford it"... I think they'd find the money damn quickly if competitors could run fiber along the same towers or in the same conduits to compete against them for customers.

        They lethargy we see from the ISPs comes from the fact that people are legally forbidden on pain of getting their brains blown out from competing with them.

        You cannot run competing cable. And that is why they fuck us.

        As to cell phones being more expensive... this is a false comparison because you're not comparing the cost of JUST the cellphone telephone service. You're including the cost of text messaging and mostly the cellphone data services which are the bulk of those fees.

        You can easily buy unlimited cellphone and texting plans for 25 USD. That's UNLIMITED. And if you want a metered plan then you can pay as little as 6 dollars a month if you're not using the system very much.

        I'm personally paying about 18 dollars a month for my cell phone and I have a smartphone. I have a moto X second generation.

        Now here people will say "but don't you miss anywhere wireless data"... about as much as you miss that on your laptop. Which is to say you care if you care but I think most people use wireless data because they basically get forced into it, dont' know how to turn it off, and then just get lazy about doing certain things.

        A big one I hear all the time is "what about google maps, you need that right"... I have a lot of storage space on my phone and I use about 2 gigs of it for stored maps which gives me a comprehensive map of my own state and the four adjoining states. No data connection required. I turn on my GPS... that associates the GPS with the stored maps... and I can navigate just fine.

        Here someone will say "what about email! Surely you need access to email at all times don't you!?"... no. Anyone that needs to get ahold of me right fucking now will call or text. I also have an email client set up on my home system that forwards alerts based on some message rules to my text message. Aka... I have some systems that will send me an email when something goes wrong with a system. That email is then forwarded to the text messaging gateway. I have a few of those set up for when some people email me. It doesn't send the whole email. It sends the name of the person and the subject line. Enough information for me to know whether I should turn on my data radio in my phone or not. I generally don't. I also find that wifi networks are pretty much ubiquitous at this point and all free. So what the fuck is the point? I spend 80 percent of my time inside one wifi hotspot or another. And in the remaining 20 percent... if you actually need me right MEOW... then fucking call or text you filthy barbarian.

      • Pretty soon it will be smarter to have a "land line" format phone that actually connects to a local cell tower (no lines to maintain, install, etc.).

        ATT has been doing exactly that [att.com] for quite some time now.

        • A lot of the carriers have been doing the same. They did it with that money they collect from your phone bills designated to connect poor and rural areas. Instead of running land lines, they can build out towers for their cellular networks and claim compliance thereby getting their share of the cash.

    • Only 10gbps get a dark fiber run and you can cost effectively get to 80gbps via a cwdm passive mux.

      We should be decoupling provider services and the last mile with an all passive all optical last mile. Providers can meet at the CO (or backhaul or pay others to backhaul) and hand off a CDWM channel to the muni. Macsec encryption can keep the muni from sniffing anything. If the muni is smart it rolls out muni access. Throw in IPv6 and it become easy to have a single router send things across the muni next

      • Yep. Exactly. The sad thing is that people's eyes glaze over when they see that and instead just say "hey ISP, I give you dictatorial control over the communication system of the entire community... because this is complicated and I don't want to deal with it."...

        And the thing is that isn't that complicated really. What the City should be offering is conduits. A pipe in the ground where people can run cable. That's it.

        I think politicians can manage empty pipes. If they can't... then gargling sulfuric acid m

        • Why ipe in the ground fiberoptics from the 70's will carry that same 80+ gbps as what you install today. Not quite as far but no real matter.

          Pipe have problems they get full, companies will relay the same infrastructure but in gear on poles to make it cheaper and less reliable. It starts to be a competitive advantage to have them full so the next guy can not put his own in place or have to wait. The last mile needs to be unified and firmly under muni control. Once you get to the CO it's trivial to throw

          • If the pipe fills and the municipality charges a set fee for running cable then the city will be getting enough money to upgrade the cable.

            As to the idea of some company wasting space in the cable with crap... if they're willing to pay for that space they can use it. The city will collect the money and use it to upgrade the cable.

            Its not a big deal. Run a 1 foot diameter pipe down the street for busy areas and run a three to six inch pipe for more rural areas.

            We should all have gigabit internet that is chea

            • You're missing the point one pair to the CO per residence/office/building should suffice now and long into the future. Having the muni own the last mile let's providers enter a market without a massive build out. That increases competition which is good for the consumers.

              Companies wasting space happens, it's an issue now in shared settings. You have at least a short term advantage to consume everything available so that your competitor has a longer build out time etc etc.

              • I'm okay with the Muni offering a last mile hook up so long as they don't have a monopoly on the franchise.

                If other ISPs can run last mile lines then I have no problem with the muni offering that service.

                My issue is with a monopoly on the franchise. I don't want ANYONE to have a monopoly on it.

                Not a corporation.
                Not the muni.

                FUCKING NO ONE.

                Let me be very clear.

                My problem is when the Muni says you CANNOT run last mile cable. THAT is my problem. Not who runs it. Anyone can run it that wants to run it so far as

                • The problem is the last mile is a natural monopoly of sorts. If you have been to other countries you will often see telephone poles thick with wires from many companies. Abandoned wires from defunct companies, companies "accidently" damaging other cables, and generally a giant mess. That is the effect of a completely deregulated last mile.

                  A single fiber plant is that middle ground. For it to be fair everybody has to pay the same per wavelength and those proceeds have to go solely to maintaining/paying f

                  • Natural monopolies don't need governments telling you that you can't compete with someone by law.

                    Last mile is not a natural monopoly. Intel just about has a natural monopoly... its not total but they have a strong big of market dominance because they make a superior product at a price for that quality that competitors have a hard time matching.

                    And that is how natural monopolies work.

                    Government backed monopolies however work by the government saying "compete with X and I'll shoot you in the face."

                    Last mile h

                    • As I said you have apparently never been to a country that lets anything go up on a pole. Very soon they become unmanageable, wires start blocking out the view ruining common space. Burying them runs out even faster as good building practices have pretty wide exclusions zones between pipes.

                      Muni fiber is the middle ground everybody can compete offer whatever they want without ruining the commons. It's little different than forcing everybody to use the same poles or would you advocate every provider has to

                    • A tired argument with a standard response.

                      1. who says I'm letting you actually climb up the pole and do it yourself? Letting anyone run the cable does not mean I do not have civic engineers do it that are employees of the muni.

                      2. who says I have to use poles instead of conduits?

                      3. who says that I can't charge use fees that allow me to scale conduits or poles to demand so that infrastructure doesn't get congested?

                      Just because something is fucking hilariously disorganized in India doesn't mean that a better r

                    • 1 By anyone meaning all comers pay a fee (12c a pole a year around me last I checked), install by certified linemen.

                      2 You keep saying conduit, it realy does not work well for last mile. It's more expensive and you can still only run one cable. Direct burial cable and tunnels are the general used options. Tunnels give you the flexibility but are great initial expense and upkeep.

                      3 Your limited to a 2d layout for buried cable, if you stack things you can not maintain them in any reasonable manner. So you'r

                    • 1. who is allowed to run cable is restricted to the franchise holders and that's frequently one or two companies.

                      2. high ways are more expensive than dirt roads... one becomes more practical than the other as traffic increases. If you only have a couple people running cable then the poles are fine. The criticism you're laying is what happens when there is too much cable to run on a pole... to which I responded... conduits. If your'e running that much cable then you can use the fees you're collecting to run

    • Re: (Score:1)

      by KGIII ( 973947 )

      I was up skiing during the Great Ice Storm of 98. Every power line was down - 14 days and 13 nights without power. The entire time? I had a POTS connection. Copper is not going anywhere. Not until Fiber is run underground to replace it. And that, my good man, is a fuckton more than a couple of grand. We rural people tend to vote more so, yeah... It is not going to happen any time soon. I still keep a regular house phone. I don't know the number and I do not actually recall using it now that I think about it

      • can you cite your wind mill?

        As to copper... my uncle has a similar set up in the hills. Off grid... He ran a fiber line from his house about a mile from the road to the road. And then had internet/phone/tv installed there... then he moves the entire signal to his house using a media converter through the fiber.

        Long story short... he the comforts of a fully wired house while being extremely rural.

        Fiber is the way to go.

  • Is it that interesting or just a polite way of saying desperate? All telecommunication is done with computers these days.

    • Re: (Score:2)

      by Gryle ( 933382 )
      Original submitter. "Interesting" and "desperate" are not mutually exclusive. As they say, neccesity is the mother of invention...

  • So what. (Score:4, Insightful)

    by drew_92123 ( 213321 ) on Saturday August 01, 2015 @12:42PM (#50229739)

    EVERY call made in the US today is processed by "computers", long gone are the days when you had old style analog switches and rotary phones.

    Since every call made is already processed in one way or another by a computer this has set a precedent over the past several decades that gives the FCC the legal power they need to enforce these rules.

    • Re: (Score:1)

      by Logger ( 9214 )

      This.

    • Yes exactly. There is going to be very little technical difference between routing phone call data and internet data. In fact isn't a phone call a 64kbs data stream?

      • Last I checked(it's been 15+ years) voice calls are 56kbps over a 64k channel(the extra was for signalling I believe) and data is 64kbps. Modem calls count as voice.

        Back in the day when telcos starting doing more voip internally on their networks and I was still working for an ISP we noticed that our users were getting unusually slow connections and a lot of dropped calls.

        After a few calls to our rep at PacBell she got to the bottom of it... according to her and a manager she brought on the live they were

  • ..basically since 1891, when the Strowger switch was invented. And if you don't know the story behind this; it's really worth looking up if only to discover that undertakers were an important part of early telephony progress...

  • Long distance since the 80's, anyone? (Score:4, Insightful)

    by BronsCon ( 927697 ) <social@bronstrup.com> on Saturday August 01, 2015 @01:12PM (#50229867) Journal
    So, AT&T long distance service hasn't been a telecommunications service but, instead, an information service since the 1980's because computers? Go ahead, AT&T, back this argument, retroactively lose common carrier status for your long distance network from the moment you computerized it, and for your POTS network from the moment you merged with the mini-Bells. I wonder how many of the felonies that were committed while utilizing your network are still within their statute of limitations...

  • My mother worked on the last analog telephone central in Czech Republic, which was put out of commission before the end of last century. Since then every single phone call has been processed by a computer. I doubt there are any analog telephone centrals left anywhere, because at the time you had one floor of entire building replaced by a machine that fit in a broom closet.

    So this argument could be applied to every single service that is actually regulated by title II and so is moot.

  • A telecoms network that doesn't use significant amounts of computer processing sounds like a relic from the middle of last century. I guess the telecoms companies are hoping their legal opposition and judge don't notice that.
  • What good did FCC ever do to you? I remember buying a telephone line for $20 and having to pay almost extra $20 in FCC surcharges. FCC aint cheap. Let's ditch it while we can.
  • There is a definitions based line dividing "Telecommunications" and "Information Services".
    We see certain for profit entities try to skip over that line once again to get the best of both worlds and none of the responsibilities.
    It's like they're in a jumprope contest.

  • Internet access qualifies as information service, not a telecommunication service, because it involves computer processing.

    ... So does actual telephone service - which is *clearly* a telecommunication service.

  • Sure! (Score:4, Insightful)

    by Lumpy ( 12016 ) on Saturday August 01, 2015 @03:36PM (#50230383) Homepage

    Honestly, force internet to be like a utility. dont let them be for profit and force them to spend at last 50% of all profits on infrastructure build out.

    These asshole CEO's don't want to do the right thing, then it needs to be done at gunpoint with regulations and laws. Let the SWAT teams raid a CEO office for once instead of a poor persons house.

  • From the Communications Act of 1934:

    (43) 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.

    Sounds familiar? Thus these are not telecommunications:

    - Has communication between or among points NOT specified by the user (i.e. a switch, unknown routers)
    - Sent information doesn't match received, for example added OSI layer header

  • So have them do broadcasting and phone service without computers and then let's see how well that works.

  • So do you want to be forced to use non-computer based solutions for your Title II-regulated phone systems? Be careful what you wish for, $MEGACORPS.

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