A Report From the Frontlines of the Net Neutrality Litigation

Written by Stan Adams

Reasonable. You keep using that word. I do not think it means what you think it means.

In March of 2018, CDT filed a legal challenge to the FCC’s “Restoring Internet Freedom” (RIF) order in which the FCC removed all of the net neutrality rules it had put in place in 2015. The Commission also reclassified broadband internet access services (BIAS) as an “information service” subject to the weaker regulatory authority Title I of the Communications Act and disavowed the remaining sources of its own authority to implement such rules at all. Instead, the FCC now relies solely on a weakened transparency requirement and market forces to ensure that ISPs refrain from leveraging their gatekeeper positions on the internet to control customers’ access to the internet or to exert influence on providers of online services.

We challenged the RIF’s rule repeal for 4 reasons. First, CDT has advocated for effective protections for an open internet for more than a decade; the RIF erased them all. Second, CDT was part of the legal battle to (successfully) defend the 2015 Open Internet Order against challenges from ISPs and industry groups, so our challenge to the repeal of those rules is a natural extension of that effort. Third, CDT believes that formal regulation of network management practices is necessary in lieu of a sufficiently competitive marketplace for internet access and we disagree with the Commission that today’s broadband market is sufficiently competitive to ensure market-driven self-regulation. Fourth, we strongly disagreed with the Commission’s reading of a single word in the statutory definition of “information service” that would effectively preclude the application of Title II to any type of communication technology, potentially destroying the FCC’s strongest source of authority.

After filing suit in March, CDT and the other petitioners and supporting intervenors, including public interest groups, trade associations, companies, state attorneys general, and more, have been briefing** the judges at the D.C. Circuit on our reasons why it should strike down the RIF. As we’ve written about before, the legal side of the net neutrality policy battle boils down to how the FCC classifies broadband. The Communications Act offers two choices; either broadband is a “telecommunications service” and subject to regulation under Title II, or an “information service” covered by Title I. Essentially, telecommunications involves transmitting information, unchanged, between network endpoints, while information services involve processing, changing, or manipulating information.

In the only Supreme Court case to address the issue, National Cable & Telecommunications Association v. Brand X Internet Services, (Brand X) the Court found that the internet access service “offered” by cable-based ISPs (in 2005) contained a mix of both telecommunications and information services. But since the two service classifications are subject to two mutually exclusive parts of the Act, the FCC must classify internet access service as either one or the other. The key to properly classifying the service, according to the Court, was to determine whether consumers viewed the the “offering” as an inseparable mix of the two kinds of services or whether there was a standalone “offering” of the telecommunications component of the cable modem service in question.

Ultimately, the Court said that the FCC’s decision to classify the cable modem service as an “information service” was reasonable because consumers saw the “offering” as a combination of information services, such as the ISPs own web-hosting and email, combined with the telecommunications service necessary to transmit data between the customer and those services. In his dissent, Justice Scalia compared the information service component to a pizzeria and the telecommunications component to pizza delivery. That analogy gives a glimpse of how prominent the information service components (email, web hosting, “home pages”) were, at least in the mind of one Justice, in terms of how consumers viewed internet access at the time.

Now, of course, internet access and the Web have moved beyond the walled gardens initially offered by ISPs, as have consumer perceptions. The FCC, under Chairman Wheeler, recognized this in 2014, demonstrating that people now see their ISPs primarily as conduits to the rest of the internet, responsible for transmitting information between subscribers and providers of “edge” services like email, social media, music streaming, etc. Many, if not most subscribers, never use the information services, like ISP-hosted email, that providers bundle with internet access. So how did the Pai Commission justify it’s switch back to the view that internet access is an information service?

In short, the Commission ignored the consumer perception test in Brand X and focused instead on the word “capability” in the statutory definition of “information services.” The Commission reasoned that internet access provides the “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications” because without ISPs, people would not be able to access the services at the edge of the internet that actually provide the capability to do those things.

The D.C. Circuit rejected this argument when ISPs made it in US Telecom v. FCC in 2016, but there’s another problem: to the extent that internet access can be said to provide such “capability” it only does so by providing the telecommunications component between end users and the edge services they connect with. The FCC’s new interpretation ignores the “via telecommunications” portion of the definition, which would mean that even telephone service (the original Title II “telecommunications service”) would be an information service since it provides the “capability” of generating (talking), acquiring (listening), and storing (interacting with voice mail) information. The phone system and internet access do this in the same way: by transmitting information between endpoints.

The Commission’s fall-back argument is that, regardless of consumer perception, internet access is “functionally integrated” with two services most consumers have never heard of: DNS and caching. I have written about DNS before (how it works and the privacy concerns it presents), but it is the system that matches up the text-based addresses we type into our browser bars or click on (https://cdt.org) with the IP address of the server hosting that domain. DNS is essentially the phone book of the internet and ISPs are not the only providers; there are several free, public options that also offer enhanced privacy protections (1.1.1.1, 9.9.9.9, 8.8.8.8).

Caching is the practice of storing copies of popular content on servers close to or within the ISP’s network to reduce the time it takes to deliver that content to end users. Again, ISPs are not the only ones caching content; this is also what content delivery networks (CDNs) do. Beyond that, customers don’t ask their ISPs to cache, nor do they choose one provider over another based on their caching service. ISPs cache content because it conserves network resources, reducing the traffic load on routers, switches, and interconnection points. More importantly, neither DNS nor caching are part of what consumers think they are buying with their internet access service, namely, high speed connection to the internet.

From CDT’s perspective, even if DNS and caching are information services and inseparable from internet access, they are such a small component of the service compared to the telecommunications component (shuttling packets across the internet) that classifying internet access as an information service is like classifying air travel as an entertainment service because some planes offer in-seat movies. Or, as the petitioners’ reply brief points out, adding a few drops of fresh water to the ocean does not turn it into a lake.

The courts will decide whether the FCC’s approach, which misconstrues some words while ignoring others, is reasonable. Despite the FCC’s repeated insistence that its approach is reasonable — a word the Commission uses 144 times in its opening brief — it is not.

Oral arguments are scheduled for February 1, 2019. Stay tuned!

**Additional briefs, should they be useful:  the government petitioners initial;  the non-government petitioners initial;  the FCC’s brief;  the government petitioners reply;  and the non-government petitioners reply.

 

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