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FCC Struggles To Convince Judge That Broadband Isn't 'Telecommunications' (arstechnica.com) 203

A Federal Communications Commission lawyer faced a skeptical panel of judges on Friday as the FCC defended its repeal of net neutrality rules and deregulation of the broadband industry. From a report: FCC General Counsel Thomas Johnson struggled to explain why broadband shouldn't be considered a telecommunications service, and struggled to explain the FCC's failure to protect public safety agencies from Internet providers blocking or slowing down content. Oral arguments were held on Friday in the case, which is being decided by a three-judge panel of the US Court of Appeals for the District of Columbia Circuit. Throttling of firefighters' data plans played a major role in today's oral arguments.

Of the three judges, Circuit Judge Patricia Millett expressed the most skepticism of Johnson's arguments, repeatedly challenging the FCC's definition of broadband and its disregard for arguments made by public safety agencies. She also questioned the FCC's claim that the net neutrality rules harmed broadband investment. Circuit Judge Robert Wilkins also expressed some skepticism of FCC arguments, while Senior Circuit Judge Stephen Williams seemed more amenable to FCC arguments.

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FCC Struggles To Convince Judge That Broadband Isn't 'Telecommunications'

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  • Giving the FCC the leeway to choose how to regulate the internet is a bad idea, it means every administration can change the rules. Just pass a law mandating how to regulate the internet.
    • Re:Pass a law (Score:5, Insightful)

      by DogDude ( 805747 ) on Sunday February 03, 2019 @09:54AM (#58063784)
      "Just pass a law" is a lot tougher than "random employee of major telcom makes a decision while taking a poop". We need strict government regulation of Internet connections ASAP. The "free market" doesn't work in this case.
      • "Just pass a law" is a lot tougher than "random employee of major telcom makes a decision while taking a poop".

        Sometimes the needful is hard. We need a law because anything less is trivial to change, and fuck us over again.

      • This is why the Republicans win time and again. They fight to win. While you're busy debating whether the existing laws allow for Net Neutrality they're busy taking over state legislatures so they can gerrymander and keep your pro-NN law from passing.

        The existing laws are there, use them. You just need to vote for people who will enforce them. Fight to win or get ready to lose... everything.
      • Where and when do you believe the free market has been tried in last-mile broadband?

        • Columbus, OH, kind of. We have two providers (Spectrum & WOW) both with their own set of wires. We'll never get more than two, though. It's not worth it to build out the infrastructure and convince people to switch.

      • The "free market" doesn't work in this case.

        You mean, "We don't have a free market in this case". Telcos exploit government regulation to prevent competition. If you and I could just switch ISPs on a whim there would be no need for regulation, except perhaps to protect whistleblowers from corporate retaliation.

      • Why do you hate toilets so much? Do you need some stronger medicine?

    • dial up internet (Score:3, Insightful)

      by goombah99 ( 560566 )

      the Internet ran over Dial-up phones (telecom) and now phones run over the internet. And I'm communicating with you at a distance electronically. Tele-com.

    • it means every administration can change the rules.

      That's not true. Agencies cannot change regulations for ideological reasons alone - they need to provide some justification. That's why Scott Pruitt was so incompetent at the EPA... he overturned a bunch of rules but with no legal basis. That's why they're being fought over in court.

      Also, the FCC is always 3-2 politically (by law).

      • The agencies do not have legislative power, and yet presidents campaign as if they do because they make promises that technically can't be kept without either assistance or non-action by congress and the courts. None of these agencies would ever have existed without congressional action in the first place, and their mission is usually spelled out in law. Of course elections have become nothing more than popularity contests based upon good versus evil rhetoric rather than campaigns based on actually governi

    • Unfortunately, over the last several decades congress has allowed the executive branch to acquire more power with less oversight. If congress and the president are from the same party, then congress is extremely reluctant to say no, but worse they also have a tendency to hand over extra powers under the mistaken idea that their party will never lose power.

      Yes, technically congress has similar powers as the executive it's just that they don't use it much. Voters often don't care because they seem to often

  • by Anonymous Coward on Sunday February 03, 2019 @09:46AM (#58063760)

    Ajit Pai needs to be replaced. Does he know what voice over IP is? That's not a category of telecommunications? Does Pai know what Whatsapp and Skype do?

    At one time, we used analog modems at 300 baud over a copper land line. That was telecommunications. Now we use fiber optic cable and much faster digital modems. That's telecommunications using a 7 layer stack.

    Hello, Mr. Pai. Maybe people on the other side of the world use smoke signals. Not here. Get with the times.

    • by Luthair ( 847766 ) on Sunday February 03, 2019 @10:14AM (#58063850)
      I always thought it would be funny to edit that stupid video he did a couple years back about how you can still post to instagram after net neutrality was ended to add pauses for buffering and to periodically degrade the video quality to a very low bitrate.
    • by gtall ( 79522 )

      We'd only get another industry Gumby in place of Ajit from this administration.

    • by Koby77 ( 992785 )
      Be careful. Stacking indicates that broadband is NOT defined as telecommunication. From the article: "Millett pointed out the importance of the "via telecommunications" phrase in the information service definition, which makes it clear that an information service rides on top of a telecommunications network." Meanwhile, telecommunications is defined 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 informa
    • >Hello, Mr. Pai

      No talking to Shit Pai. Time of talk has passed.

      There is a reason why he is one of the most heavily guarded government pieces of shit nowadays. He is single most hated person in the country.

  • It is time for a hero like Elon Musk to use 1000's of Satellites to give free WiFi to the world.
    • by Shaitan ( 22585 )

      That's of minimal help. If you have any experience with satellite internet you know how much it sucks. Latency is a bitch.

      • by bobs666 ( 146801 )
        That depends on where the satellites are. You are thinking of Geostationary satellites that are seconds away from earth. As apposed to satellites in near earth orbit.

        That and not every one is playing online games like you and me. Or what ever low latency protocols you are using... If the ISP's are disrupting Internet games then you are SOL.

      • well since the OP was talking about Starlink by SpaceX then that is supposed to fix the latency problem. 25-35ms latency is dramatically better than geostationary satellite internet and even better than some terrestrial services at the moment.
      • by idji ( 984038 ) on Sunday February 03, 2019 @11:14AM (#58064082)
        Go and look up the latency from Elon Musk's space internet - you will be pleasantly surprised - is 25ms ok for you? - he is not using geostationary satellites 36,000 km away.
        • by dryeo ( 100693 )

          I'm on a LTE connection, a type of wireless. I get about 75 ms to a location 50 miles away. It's hard to imagine how it'll do a third of that when traveling hundreds of miles and still having to convert the signal at the endpoints.
          >speedtest-cli
          Retrieving speedtest.net configuration...
          Testing from Telus Communications (209.52.xxx.xxx)...
          Retrieving speedtest.net server list...
          Selecting best server based on ping...
          Hosted by Tech Futures Interactive Inc. (Burnaby, BC) [20.74 km]: 77.833 ms

          • by mentil ( 1748130 )

            Long-distance packets usually travel via fiber, which only transmit signals at 0.7x the speed of light (due to internal bouncing). Beaming it to an orbital relay at 1.0x the speed of light could thus be faster. Optical switches need to convert the optical signal at the endpoints as well.

        • by fazig ( 2909523 )
          It will be a wireless connection and it won't be a point to point connection as far as I know. A satellite will broadcast its information to everyone in that 'cell'. And it that regard it should qualitatively work like any wireless network that sends to multiple clients at the same time. Here every additional participant's information becomes noise to you.
          Don't expect too much if you're interested in gaming.
      • Latency is indeed a bitch. But Musk's proposed satellites will be in much lower orbits than geosynchronous satellites. Result: much lower latency. My cocktail napkin (which isn't always right) says maybe 5 to 10 ms added to whatever pings one would experience from a wired connection. As with many of Musk's notions, there are a bunch of other potential problems, and I'm skeptical that Musk-net will ever be deployed or will work all that well if it is. But if it does come about, latency may not be a major

    • No, I would like low latency and fast internet, please.
    • "Give", "free", "hero", "WiFi". That's like four mistakes in one sentence. Impressive.

  • VOIP services use the Internet to make phone calls. This should be the only argument that is needed to shoot down Pai's FCC lies. However, there is too much money being fed into the government bodies, via lobby money to "campaigns". by ISP's that direct their puppets to only help the ISP's. It's a shame that the US is so damn corrupt. There was a time when regulators actually worked to help Americans improve their lives and the nation to better itself. Thanks to corporations being "people", and lobbying (b
    • The existence of air and water are enough to imply the FCC is lying these days. They went from misguided and ineffective to blatantly malignant. Sounds like it's time to drain the swamp.
    • "...to shoot down Ajit Paid's FCC lies."

      FTFY and probably answered a few why's from people.

  • by oldgraybeard ( 2939809 ) on Sunday February 03, 2019 @01:33PM (#58064618)
    but it is 100's and 100's of pages of legal speak(confused, conflicting, legalistic gobbly gook).

    If Net Neutrality is
    - peek in to the packets you loose your common carrier liability protections.
    - don't peek in to the packets you keep your common carrier liability protections.

    I am all for that definition of Net Neutrality

    But the government/businesses and activist are in the courts arguing about certain little things in the 100's and 100's of pages of crap. And who gets what and who pays who!! On both sides!!
    And most things that come out of our courts today are rarely good for the people! Because it is a bunch of unethical lawyers and judges who are ideological/paid off arguing their causes or to get their clients, someone else's money.

    If Net Neutrality is not the simple definition I stated above. I want the governments slimy fingers as far away from the internet as possible. Would things get bad? Yes, but eventually the individuals, businesses and the market would figure out what people are willing to buy.

    Just my 2 cents ;)
  • From TFA:

    Johnson said that broadband is an information service because Internet providers offer DNS (Domain Name System) services and caching as part of the broadband package. DNS and caching "are determinative here" because they allow broadband users to perform all the functions listed in the definition of an information service (e.g. acquiring, storing, and processing information), he argued.

    I really hope the judges are learned in the technology. Using the ISP's DNS is obviously not a requirement, nor is using their caching. Using either of these technologies is not integral to the passing of bits from one IP to the other. What a shit argument. If anything, one could argue that the indirect use of the ISP's routing tables are some form of information service, but they aren't typically directly queried by your home/business broadband connection.

    • by mentil ( 1748130 )

      The best metaphor in the Ars comments is that DNS is comparable to Caller ID, and that doesn't automatically cause phone service to be classified as an 'information service.'

  • The language of the law clearly ends with internet service being an information service just as the bipartisan legislation dictated that the US government would take a light touch approach to regulating our internet access.

    There should be no struggle here. The FCC's Open Internet Order was clearly in violation of the text of the law, and it's on the right side of the statute in fixing that error today.

    Outlets like Ars Technica and Slashdot could do a better job of representing the stakes in this controversy

  • by WaffleMonster ( 969671 ) on Sunday February 03, 2019 @03:02PM (#58064928)

    At the very least self-consistency should be demanded. Right now we have a definition of "information service" which depends on "telecommunications services" to facilitate providing the information service. By definition an information service cannot exist without telecommunications service to facilitate it.

    This begs question where is the telecommunications service required to support "information service"? If you blanket assert ISPs are information services then your argument fails self-consistency.

    Internet is layered sufficiently to clearly separate providing access to IP network from servers (NNTP, Gopher, WAIS, CHARGEN, WAP..etc) that offer information services over IP.

    Saying an ISP can't offer both information and telecommunications services is like saying a movie theatre can't charge for admission to a movie and popcorn.

    Arguing ISPs are information services because they have DNS servers is like arguing the business of movie theatres is selling popcorn not film viewing.

    I personally would rather not see Title II applied to broadband or anything else.

    Much better off with clean NN or meaningful legislation which actually encourages competition instead of FCC using its power to shield large providers from the burden of having to compete.

  • For balance, the judges seemed skeptical that the issue wasn't already settled with the 2005 'Brand X' case, where a Supreme Court ruled that cable modem service was an 'information service'. It's possible they'll contradict that decision or say it doesn't apply, but that seems less than clear.

  • A dedicated network for public safety use only is currently being built because they know that they're going to need it if everyone can hog as much bandwidth as they want.

  • The problem is that the lawyers arguing the case clearly don't have a clue. They're letting the FCC play word games with terms like "broadband".

    The argument here is ACTUALLY ABOUT "is providing internet access a telecommunications service".

    The FCC argument that it is NOT (because DNS, and WebPages are Information Services) is specious because THOSE THINGS are NOT part of "providing internet access".

    Yes they are (almost) always INCLUDED WITH the provided "broadband" but they are NOT (not at all, not even
    • UNHOLY GUACAMOLE! I just solved the problem Elon Musk has with selling his Teslas Directly in some states.

      1 - Wait till the FCC bamboozles this case and WINS
      2 - Rebrand your "Tesla Car Sales" as selling really expensive batteries, with builtin mobile transport mechanism
      3 - Open Brick-n-Mortar stores selling "really expensive batteries".......
      4 - When the inevitable lawsuits come, use THIS FCC CASE here as precedent

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