U.S. appeals court strikes down FCC's net neutrality rules | Hacker News Reader

U.S. appeals court strikes down FCC's net neutrality rules

tvtechnology.com

419 pointspseudolus380 comments

I've always felt the FCC was an inappropriate path for enforcing this. Ideally it would be powers granted to the FTC either through legislation or potentially through existing powers they might already have in this domain.

The FCC's jurisdiction on this was already shaky even before Chevron was overturned, I think the moment activism was pushed in this direction net neutrality was doomed a decade of unending lawsuits. Even if they somehow made it passed the courts, I'm not quite convinced the FCC would be motivated to actually do much about this even with a sympathetic administration. Consider that prior to the internet, they were pretty much created to do the opposite of what people want from net neutrality.

These are just my armchair thoughts though.

The fun tradeoff here is since the courts determined the feds can't regulate it, the states are allowed to instead, with California and New York already taking the lead, and are much more consumer oriented than anything that could be done federally.

The Federal government can regulate broadband providers, just not as telecommunications providers (subject to common carrier requirements) under the Telecommunications Act of 1996. Congress could update the law if it wanted to.

If the court had held otherwise, the Federal common carrier requirements would have preempted any common carrier duties imposed by California and New York. Since today the 6th Circuit says the FCC does not have that power (because broadband providers offer information services and not telecommunications services), California and New York are welcome to impose those duties within their state boundaries (as long as they don't step on any other areas of Federal preemption).

> because broadband providers offer information services and not telecommunications services

This is where I highly disagree with the opinions of this court decision. My ISP is absolutely providing me telecommunications services, not information service.

For practically all the "information" I receive, my ISP is not "generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications". That maybe sometimes I might land on some webpage hosted by my ISP is inconsequential to the services I am paying for, that's not the service I'm paying for. In the end I'm paying for them to give me the ability to telecommunicate with a server hosted by someone else which then generates, processes, retrives, that information.

My ISP is not the information service which lets me post here. Hacker News is an information service acquiring, storing, transforming, processing, and retrieving the data I request. My ISP is only used for me to talk to the Hacker News webserver.

https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.p...

I truly don't understand how anyone who can even vaguely understand how ISPs work and reads this law could say ISPs aren't telecommunications providers and are instead information service providers. Other than maybe big bags of cash that makes people's reading comprehension a little loose.

>We now turn to the merits, which the parties have argued here in exemplary fashion. But the key flaw in the FCC’s arguments throughout is that the FCC elides the phrase “offering of a capability” as used in § 153(24). That phrase makes plain that a provider need not itself generate, process, retrieve, or otherwise manipulate information in order to provide an “information service” as defined in § 153(24). Instead, a provider need only offer the “capability” of manipulating information (in the ways recited in that subsection) to offer an “information service” under § 153(24). Even under the FCC’s narrower interpretation of “capability,” Broadband Internet Access Providers allow users, at minimum, to “retrieve information stored elsewhere. And we think it equally plain, for the reasons recited below, that Broadband Internet Service Providers offer at least that capability.

As I said elsewhere on this thread, I read this as the court saying that something to the effect of "the underlying links that comprise the Internet backbone are probably telecommunications, but the provision of global Internet service on top of them constitutes information services". Which sounds crazy in 2024, but I'm not sure that's a crazy reading of the world circa 1996, which is the interpretation that controls here --- the Telecommunication Act appears to refer to the Internet primarily as something that runs on top of telecommunication links.

> the Telecommunication Act appears to refer to the Internet primarily as something that runs on top of telecommunication links.

It most certainly does; the statutory definition is that there can be no information service without an underlying telecommunication service. So how could any court rule that ISPs who own the wires coming into my house are providing purely an information service and no part of their business can be regulated as a telecommunication service?

I think you have this backwards, if I'm reading your thrust properly. The whole deal here is: if the Internet backbone is itself a telecommunications service, then maybe (but: probably not) the FCC can make up new rules about Internet service. If the Telecommunications Act of 1996 sees Internet service as something built on top of raw telecom circuits --- which I think it kind of clearly does? --- the FCC has no such power.

> Internet service as something built on top of raw telecom circuits

My service agreement with my ISP explicitly says it is a circuit.

And also the argument isn't if it's an Internet service or a telecommunications service, it's if it's an information service or telecommunications service. Quit throwing your own common parlance terminology here and use the language in the law and the courts please!

The text of your service agreement has exactly zero to do with this dispute.

It's entirely the center of this dispute. What is it that I'm actually paying my ISP for? I'm paying them for a telecommunications circuit. I'm not paying them because they host or manipulate data I care about, I pay them so I can telecommunicate with actual information services.

> If the Telecommunications Act of 1996 sees Internet service as something built on top of raw telecom circuits --- which I think it kind of clearly does?

Does it? We have definitions for "information service" that clearly fit running a server, and "telecommunication service" defined in a way that clearly fits carrying data over wires, unmodified, and some potential gray area in between that might include looking up information to figure out how to correctly route other information.

You've repeatedly emphasized the "offering a capability" angle, and so does the court. On the subject of capabilities offered by ISPs, the court says:

> they offer a “feature[] permitting” consumers to stream videos stored on Netflix’s servers, [...] the “ability” to purchase gifts from information stored on Amazon’s servers, [...] the “capacity” to view posts stored on Facebook’s servers, [...] and the “power” to conduct a search using Google’s servers

But the court pretends that this piece of capability (feature/ability/capacity/power) being offered by ISPs (as opposed to Netflix, Amazon, et. al. who actually run the servers) is not exactly the telecommunications service the FCC seeks to regulate as a telecommunications service. The court appears to believe that merely being able to use the word "capability" to describe ISPs (while implicitly lumping together functions performed by ISPs with those performed by Netflix, et. al.) is sufficient to make ISPs not telecommunications services.

Again, I would come back at you and say that you are talking about the Internet as if it was something markedly different from CompuServe, Prodigy, and AOL. Obviously, it is, but I don't think that distinction was legible to the authors of the 1996 act. Meanwhile: the courts, post-Chevron, are going to look at the text of the act in its 1996 context, without deferring to agencies about what the spirit of that act was.

This is a whole thread of people over and over and over again saying that the courts should read the 1996 Telecommunications Act in light of what telecommunications looks like in 2025 (or what they, 2025 practitioners, believe a 1996 practitioner should have thought --- as a former 1996 practitioner my response to that is: LOL). That's exactly what the post-Chevron courts are not going to do.

So far as I know, this distinction made it to SCOTUS just once (and: in the 21st century!), and when it did, the court said: the Internet is like Prodigy, CompuServe, and AOL.

You're using the term "the Internet" to refer to a combination of ISPs and endpoint services operated by other companies. That is very analogous to the combination of AOL and the Bell system connecting your modem to AOL's modem.

But broadband ISPs today occupy the place of the Bell system, plus some of the lower layers of AOL, and broadband ISPs do not occupy the place of the higher layers of AOL (the search engines, content publishing, etc.).

AOL without any means for your modem to reach AOL's modem is roughly similar to the World Wide Web without any ISP to carry your packets to and from somebody else's servers. (And I've long believed we need stronger regulations to make it clear that ISPs are responsible for providing more than just WWW access.)

Broadband ISPs today, you say.

As opposed to broadband ISPs in 1996? Do you not think a Senator from 1996 would readily lump today's Google Fiber in the same category as an ISDN provider in 1996?

Do you somehow think that the overturning of Chevron means that courts do not need to figure out where the role of Google Fiber today fits into the categories defined in 1996?

No, I do not, and, more importantly, nothing in the definitions section of the Act would dictate that. Yes: I do think that Loper means that courts aren't going to do this kind of freelancing anymore.

> Yes: I do think that Loper means that courts aren't going to do this kind of freelancing anymore.

And yet, the court seems to have rendered a decision. They don't seem to have declared that the question is not theirs to answer.

Sorry, you're right. I spoke imprecisely. The courts aren't going to allow the regulatory state to do this kind of freelancing anymore. The courts themselves will continue to produce judge-made law, of course. Which is Kagan's complaint in her Loper dissent.

If the Telecommunications Act of 1996 saw the internet of 1996 as built on top of raw telecom circuits, that might have something to do with the fact that it was. Nowadays, it's the other way around: the telecoms system is built on top of raw internet circuits.

The ISP doesn't offer me the capability to post this comment. Nowhere in my service agreement with them is hacker News mentioned.

ISPs used to have in house e-mail, Usenet, and FTP services. They realized they didn't need them to keep up the charade of being a telecom provider.

Yeah and back in those times where you hopped on your phone line to dial to your ISPs modem to access the services they host I'd completely agree they were information services providers which happened to maybe offer this new fangled "web" thing you might have heard of on the news. People signed up for those ISPs because of the information services the ISPs provided.

Now people sign up for their ISPs because they offered the better price/throughput/stability math, or often they were the only one reasonably available. Practically nobody signs up because one provider has better email or better newsgroups.

What are you even saying? These were not signifiers of “telecom providers”. They were elements of competition amongst ISPs. In what world was Usenet and web hosting part of historical telecom offerings?

They also provided shell accounts and webhosting. It had nothing to do with being a telecom provider. They stopped providing those services because third party services grew more popular and ISPs were happy to pocket the money they were spending to provide and support those services (our bills only went up even as ISPs offered less and less)

Your point seems spot on to me. We’ve fallen into the trap of differentiating legislation by implementation (technology) instead of job-to-be-done (societal OKRs). Email is just mail is just a way of exchanging letters. Digital packets and analog signals are just ways of sending data over a wire.

Which is exactly how it’s supposed to work in the first place, individual states are really the only entities that even have the power to enforce any sort of regulation here anyways. Telecom was always handled by states, the feds only stepped in when it was inter-state.

This was going to happen regardless, T-Mobile basically threw throttling in their face and they had no choice but to pretend it was fine, and they’ll be doing the same with home internet soon enough (followed by CableCos in non-competitive areas).

> Which is exactly how it’s supposed to work in the first place

True, but that was also when riding on a horse was the fastest way over land and a much much greater proportion of stuff was within state-lines.

In some alternate universe where the telegraph had already been invented, all those states may have entered into some sort of special telegram compact, and our "how it's supposed to work in the first place" would be rather different.

Actually, in this universe something similar did happen: The federal government was explicitly authorized to run a nationwide postal service, which stands out in a Constitution that was otherwise mostly about what it couldn't do.

Net neutrality was never about mobile data.

Unlike terrestrial internet, you can’t just build more capacity with over the air data transmissions. You have to have more agressive network and QOS management for cellular networks.

Besides that, the true argument for net neutrality was not to unfairly help or hurt businesses. T-mobile 0 rated all of the streaming services that participated in the program and were not asking for money for it. Even though they didn’t advertise it, if you dug deep enough, you could find the list including some porn sites.

Someone commented on HN a while back that they were able to get their 50 stream non profit 0 rated.

>Which is exactly how it’s supposed to work in the first place

I don't think anyone can seriously argue that the internet is a "state resource", by any reasonable measure. Stuff like this is exactly why federal steps in and established communication standards. because when communication is fractured by the rules of 50 states, we aren't really "united" anymore.

Nevermind the monopolies with ISPs and that a federal anti-trust would solve 50 problems at once rather than states taking their time to try and clean their backyard.

>T-Mobile basically threw throttling in their face and they had no choice but to pretend it was fine

and you don't see why this is a problem on a national level that needs proper standards, instead of a state free for all?

FTC would make more sense, and now that this is getting devolved to the states I expect we'll see the major telecoms lobbying for regulation so that they don't have the hassle of implementing differing policies by state and the likely painful regulations that they'll get in more progressive states.

What exactly is the FTC going to do with Net Neutrality? In what way is what the FCC was trying to accomplish within the ability of the FTC to enact instead?

> Consider that prior to the internet, they were pretty much created to do the opposite of what people want from net neutrality.

You can scale broadband almost infinitely. You _cannot_ scale phone service or television or radio the same way. There are simple limits on physical space and on carrier allocations that require there to be a licensing body. The FCC is required to be reasonable and non-discriminatory and broadcasters are required to serve their local communities directly. The FCC can only license broadcasters and can place no limits on receivers at all. This is because these airwaves collectively belong to the people.

It was created to serve these purposes. None of these are the "opposite" of net neutrality in any way whatsoever.

Just my 2 cents, but I don't really see how your first paragraph proves the assertion you make in the second... Arguments about Netflix using too much bandwidth on an ISPs network are exactly the kind of thing I'd expect FCC personnel to be sympathetic with considering it's the same argument they use for all the other mediums they cover... It ultimately devolves all discussions into crappy metaphors involving phone and radio when the Internet is really it's own thing and should be treated as such.

Meanwhile the FTC handles consumer protection, they are by nature going to be more proactive about this kind of thing. If they handle it then it aligns with their existing incentive structures and they can brag about it to congress in the same way they do for everything else they do when budgeting discussions come up.

No matter how I think about it, the FCC just seems incompatible with what most net neutrality advocates, such as myself, actually desire.

You're both right:

- The FCC's founding mission is to safeguard telecommunications mediums as a commons, to the benefit of the public -- a good fit for the Internet.

- The FCC is functionally a bureaucracy that grants licenses to discrete chunks of very scarce communications resources -- a bad fit for the Internet.

Either way, some agency needs to be put forward as a candidate for preventing monopolistic corporations from abusing the public Internet.

The original FCC mandate in the Communications Act of 1934 was:

For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the Federal Communications Commission, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act.

It has always been for communications by wire and radio. I'd argue fiber optics are just a fancier kind of wire from the understandings of what the intentions were back then.

That's an interesting point, although wire(ish) mediums have pretty strict limitations until you introduce a packet-switched peer-to-peer architecture, at which point you arguably get a very different situation (and different market dynamics) versus telegraph/telephone networks.

Can we all agree that if this boils down to a packet-switched vs. circuit-switched distinction as the crux of whether it can be effectively regulated under current law, that is a profoundly stupid outcome and bad public policy?

Surely Congress did not intend to concern itself with such implementation details, and if a regulatory regime conceived in a world that was all circuit-switched is now ill-suited to the economics of a world that is mostly packet-switched, it's not the court's place to invent a way to exclude packet-switched networks from laws that don't care about that distinction.

(I'm also not at all convinced that internet backbone/backhaul congestion is sufficiently different from telephone switchboard congestion from a standpoint of market dynamics.)

Telephony switched to digital in the 90s. This didn’t miraculously change their regulatory status.

The early days of the internet were defined by copious options for ISPs because telephone lines were required to be available under common carrier conditions.

The only reason this situation deteriorated is that broadband infrastructure was classified as for “information” and not “telecommunications”.

This is an argument that is made more potent by omitting the 60 years of legislative history that followed the Communications Act, which was enacted specifically and deliberately to unify regulation of the new medium of radio with that of telegraphy.

I'm just trying to address this idea:

> The FCC is functionally a bureaucracy that grants licenses to discrete chunks of very scarce communications

I'm pointing out the FCC has historically done a lot more than just issuing licenses for RF, and that communications by wire have been a part of their purview since it's founding.

I do agree their roles and rules about what to do with regulating those wires have changed over all those years.

I'm not telling you that it would somehow be illegitimate for Congress to pass a law delegating to the FCC authority to ensure that ISPs provide FRAND access to different streaming platforms (or whatever) over their IP "dial tone". But Congress pretty clearly has not done so, and just because we might think it's a good idea doesn't mean the FCC can just make that authority up.

> some agency needs to be put forward as a candidate for preventing monopolistic corporations from abusing the public Internet.

Agreed. May as well be a dedicated one, as well, to avoid any confusion (although I cringe at the likely billion dollar cost of even a "Hello World" federal agency). Pity that would require an Act of Congress, or rather, it's appropriate that it requires that since we're a republic. It's a pity Congress is itself a failure which appears to have no route to functioning again.

>Either way, some agency needs to be put forward as a candidate for preventing monopolistic corporations from abusing the public Internet.

That would be the DoJ.

> Netflix using too much bandwidth on an ISPs network

Netflix doesn't use any ISP's bandwidth without a colocation agreement. The ISP customers use the bandwidth they have already paid for. If you're going to sell IP services you have to deliver those services honestly and fairly.

That's always confused me about that argument.. They are getting paid, by their customers!

And they are paid for the common carrier service. If they want to be able to slow down some sites - basically it is an editorial action by making some content less available or even de-facto non-available - they should lose the common carrier status with all the consequences of it.

Seems to me American ISPs have a lot of political power.

Not only do they want to extort money they also don't want to upgrade their infrastructure to give the service that the consumer wants.

They're quite powerful and get tons of grant money to extend their networks and provide service they never actually provide.

They don't want to upgrade their infrastructure to give the service that the consumer paid for and they themselves advertise.

They're paid but what you pay is based on oversubscription, everyone not using their connection at the same time, as building a network to support that would be much more costly.

Oversubscription is an ISP trick to make more money.

People do pay for a certain bandwidth. They should be able to get it.

Same thing with overbooking on airplanes. You paid for a seat you should be able to use it.

Your argument wouldn't work there either.

Its a cornerstone of building cost efficient networks. People pay for a certain sized pipe, what they pay also covers the rest of the ISPs networks and costs. With no oversubscription the ISP would need maybe 20-30x more infrastructure, do you think it would have an impact on what you pay?

Not sure why I have to say this, but, networks are not airplanes.

Utter nonsense. Network tech hasvimproved by orders of magnitude over the past decade to let ISPs transmit more data than ever for cheaper than ever.

Oversubscription is not the cost-restrictive mandate it once was.

And last mile access didn't improve?

Not oversubscribing is a cost multiplier at every level. 1 million 1 Gbit customers in a city is going to need 1000 100Gbit connections out of that city and the same for transit, and that will have no impact on pricing? And everything is on average used at 1% of capacity.

If my ISP can only afford to supply me with 1TB of transfer at 1Gbit, that's fine. They can put it in the adverts, the contracts, and the pricing. For customers who want 10TB of transfer, they can offer a higher cost option.

And if they choose to gamble, advertising and entering into contracts promising "unlimited data", which they think will be more profitable across their entire customer base? Then they've got to do supply what they promised in the adverts. They chose to gamble that way, and if they lose money gambling that's their business.

You have that on mobile subscriptions usually, heavy users pay more and low usage users are not subsidizing them.

I take you are fine with paying 10x or even more for your no oversubscription Internet connection then?

Oversubscription is not gambling. The way it works after your last mile connection is that ISPs look at link usage in their network, city level distribution, city to city, transit, peering, etc, once it reaches 60-80% utilization at peak you start looking at adding more capacity. Bad ISPs (most US ISPs) will let this go too far though.

> Oversubscription is not gambling.

Sure it is.

If I promise 30 people they can have a burger at my barbecue, but I only buy 20 burgers, I'm gambling that 20 people or fewer will show up.

It might be a reasonable gamble, based on past barbecues - but the guests left hungry will still be hungry, and I'll have broken my promise to them.

It might be if traffic had sudden jumps of like 30%, but it doesn't and there is headroom available. Traffic increases slowly over time and you have plenty of time to upgrade your network.

That's not the same thing. A more adequate comparison would be to say that you promised 30 people they can have a burger, but can only produce 5 burgers per minute. If everyone show up at exactly the same time, you won't be able to satisfy them all (they'll have to wait). But overall you can consider that the probability of such thing happening is small enough to take the "gamble".

I have a 10gbps fiber LAN. It was cheap to set up and have it running.

I do not buy your argument.

People buy a certain level of service, they should be able to enjoy it as in the rest of the world.

And does your cheap and easy to set up 10gbps fiber LAN cross under the interstate 10 feet deep?

The same fiber I have for 10gbps can be used for 400gbps... just by changing sfp modules.

Same logic for interstate. You lay fiber once and scale equipment as needed. If you already have the fiber there then just use better modules.

It appears that your ignorance on the topics of infrastructure and the advancement of technology over the past five decades makes having a useful conversation impossible. Not every cable in the ground was installed with today's state of the art technology. Enjoy your apparently unthrottleable internet connection.

throttling should be an exception, not the norm.

If ISPs sell you a bandwidth per month they should deliver it.

You're the one that's short changed if you accept the throttling.

It's oversubscription all the way up, and it works. What doesn't work is when a greedy/lazy ISP tries to increase the oversubscription ratio too far.

Let me know when you've built that out to a million customers without any oversubscription.

ISPs are free to oversubscribe as much as they want.

As long as they also provide people the bandwidth sold to them when they want it.

Otherwise compensation should be in order if they throttle.

The point of oversubscription is maintaining a network that keeps costs low while providing a good service without congestion. They monitor their network (not your last mile connection, everything else) and once links start reaching 60-80% of capacity at peak times you start adding more capacity. Bad ISPs (like most US ISPs) let this go way too far though.

10gbps transit at the rock bottom rate costs $600/mo.

Please max out the line rate for a month or so straight and then tell me how happy your ISP is with you.

They are banking on the fact that you’re pulling 100mbps at the most, with bursts to 10gbps occasionally.

> 10gbps transit at the rock bottom rate costs $600/mo.

So then 300Mb/s transit, which is around the services these incumbent dinosaur ISPs are offering, is $20/mo? And $20/mo is only 10-20% of their large monthly bills? You're basically proving the opposing argument here in the general case [0].

For reference, I've asked my 1Gb/s municipal provider if they have bandwidth caps, and they told me "no" and that they are not concerned with how much bandwidth I use.

[0] The specific case is that most users are streaming video from large entertainment providers, for which the ISP isn't even paying transit but rather merely the electricity and rack units of CDN edge boxes.

The water company makes sure that everyone can flush their toilet during Superbowl half-time.

Overbooking and oversubscription are inherently very different.

Flying is a one-time service with a specific and fixed point at which the service is provided. Its peak usage is the expected usage.

Internet access is a continuous service promise where it's nonsensical to expect the provider to predict exactly when every customer would want to use it. The peak usage is not the expected usage.

These are not comparable situations.

They are comparable for expectations.

You pay for a certain level of service, you expect it delivered.

First: No, they're not. That is an unreasonable expectation divorced from the reality. What exactly do you think would happen if everyone in town switched off and on their AC-powered devices at the same time? What do you think would happen if everyone in town moves to the same street and starts using their cell phone to stream 4K videos at the same time? Do you seriously think it's reasonable to expect every system to deliver at its peak with arbitrary demand and load on it?

Second: If you're going to play the "I paid for this" game: this stuff is generally in the contract anyway. It is the level of service you paid for. The overbooking possibility? You paid for it, it was in your contract. Throttled service? That was in your contract too. You're getting what you paid for.

> What exactly do you think would happen if everyone in town switched off and on their AC-powered devices at the same time?

Large systems have their own rules.

If everybody watches the superbowl at the same time I'd expect the power grid not to fail.

If everybody gets home at around the same time from work and start powering on devices I'd expect power grid not to fail.

If it suddently gets cold and people turn on heating around same time, I'd expect it not to fail.

Those seem valid expectations and are met.

Therefor when I say if everyone starts streaming netflix it should work, then this is also valid expectation and should be fine.

> It is the level of service you paid for. The overbooking possibility? You paid for it, it was in your contract.

I get what I pay for when I want. I have 1gbps, I can run full speed as much as I want and sometimes it's nice to do that.

I am also in europe. I don't get throttled service and what you say is not in my contract.

What do you say to that?

From the first google result (although this was 5 years ago): “Europe gave internet service providers the right to throttle online traffic to prevent congestion as network demand spikes amid coronavirus stay-at-home and quarantine orders. Netflix and YouTube have already agreed to switch to standard-definition streaming in Europe to reduce bandwidth demand.”

https://www.hollywoodreporter.com/business/digital/coronavir...

Right does not mean it's used. I would change provider if I were throttled.

> Netflix and YouTube have already agreed to switch to standard-definition streaming in Europe to reduce bandwidth demand.”

You can change quality back to whatever. You can also use other services or use the connection for other things.

You're 99% on an oversubscribed connection, but the oversubscription ratio was chosen correctly so you'll likely never notice any problems.

Dedicated Internet access is a thing, but it's expensive; and I'd argue that even that is oversubscribed if you go far enough up the chain.

Sure, ISP can oversubscribe as much as they want.

As long as they make a fair guess and I get my bandwidth whenever I want, all is good.

That seems to be the case right now.

Dedicated internet access is a different thing, I agree, it also provides different guarantees, support, etc.

> Dedicated Internet access is a thing, but it's expensive; and I'd argue that even that is oversubscribed if you go far enough up the chain.

The only way to get internet access that’s not oversubscribed is by renting (or pulling your own) layer 0. By that I mean either renting a wavelength between certain PoPs or just pulling your own fiber.

You're not addressing the question.

> If everybody watches the superbowl at the same time I'd expect the power grid not to fail.

"I get what I want immediately" to "the system won't fail" is a nice way to shift goalposts. If everyone shows up to their flight then the flight won't crash, it'll depart just fine with the capacity it has and offer everyone else on the next available flight. You know, the same thing that happens when the power grid is turning back on. They do it one piece of the grid at a time. Which results in you getting less than what the person next door paid for. Because that's reality.

> I am also in europe. I don't get throttled service and what you say is not in my contract. What do you say to that?

When there are a ton of people crammed in the same location overloading the network, you get throttled, whether intentionality or not, whether you like it or not. There is no way on Earth that you being in Europe somehow makes you immune to reality.

> offer everyone else on the next available flight.

Plus compensation which is an admission of fault on airlines.

> There is no way on Earth that you being in Europe somehow makes you immune to reality.

Perhaps you can think of how that might work, i can think of:

- large fiber pipes capable of accomodating spikes

- average out traffic for large systems - have predictable traffic at scale, scale up as needed, power on/off equipment, etc

You clearly have no idea how the internet works.

The rock bottom rate for IP transit is $60/gbps. None of the infrastructure cost is included here.

And that’s with Hurricane Electric. They are a bit notorious for having probably the worst routing in the industry, but they are also the cheapest in the industry.

https://en.m.wikipedia.org/wiki/Internet_transit

It’s nowhere near as simple as “large fiber pipes capable of accomodating spikes”.

There are very good reasons why hyperscalers are building their own intercontinental undersea fiber networks. So they don’t have to pay for the _extremely_ expensive intercontinental transit.

Last I checked renting a wave capable of doing 400gbps between Amsterdam and New York was close to $80k/mo. A wave is basically a dedicated wavelength of light guaranteed to you and only you.

You don’t want your ISP to oversubscribe? Become your own ISP. Get an AS number. Get your own IP space (both of these can be done on the cheap, /36 of v6 is basically free and /24 of v4 can be had for $100 a month). Get a BGP session with a transit provider. Pay them for transit.

Get IXP links so you have direct access to AWS, Google and Netflix. Save on the transit costs there! But the IXP peerings aren’t cheap and on a small scale will certainly cost more than transit.

Congratulations, you’re now paying $1000 a month for 1gbps guaranteed. It gets cheaper with scale, but scale also increases your infra costs.

Everyone would be on 10mbps if ISPs weren’t allowed to oversubscribe.

I became my own ISP as a hobby (https://bgp.tools/as/200676). This hobby costs me $200/mo, and I don’t have any real transit, just cheapo VPSes in locations convenient for me.

Wanna know what my residential ISP whom I pay €19/mo for 1gbps residential service quoted me for a BGP session at my home on a business connection? €9800 in setup fees, €2000/mo, min. 3 year commitment + transit. Of course that was a “fuck off, we just don’t want to do this” quote, but the only alternative I have here is to pull my own fiber.

I fully agree with you here, but people that don't agree still exist despite how obviously wrong they may seem to us.

Indeed. This situation reminds me of when SMS was new, where you had to pay 25¢ to send a text, and the recipient had to pay 25¢ to receive the text. The ISPs want to double dip, get paid twice for the same data like cell phone companies were doing in the 90s.

Not necessarily since you pay for wireless connectivity. RX/TX doesn't matter. Recipient could be on a different network too. You want a text, you cover the costs. Banks still charge me on both ends for int'l wires. Now I personally agree with you and not with the reasoning I presented above but it's still an argument.

The problem with this argument is that you end up in a scenario where an ISP makes an inadequately provisioned peering path (either through an IXP fabric or transit) to Netflix that just runs at saturation.

Customers still get plenty of bandwidth to everything else and Netflix effectively ends up capped. This happened with a major cable ISP and Netflix already.

You’ll quickly find out that “bandwidth the customers paid for” doesn’t mean nearly as much as you think it does because you can have excess in the last mile and terrible AS-to-AS connectivity.

There is no excuse for inadequately provisioning the backend. They know what their customers want to consume. It isn't 99% text anymore.

If I download 1TB from 1000 servers should the ISP have any claim to charge them a toll? If I download 1TB from a single server do they now get to impose a toll?

The excuse would be that it's not free and the revenue from lost customers is less than the cost of upgrading the peering points.

The money that funds everything on the Internet comes from the end users who pay to access. The ISPs and all middlemen take from that pool of cash. If I've been sold a service to an open network I need to be delivered that service. The minutia of backhaul access is irrelevant. Their business doesn't exist without people and businesses paying for access.

What this arrangement does is limit revenue growth which is why the financial schemers want to double dip with their extortionate tolling on entities that already pay. They see what the cable operators get away with on their closed video distribution networks negotiating for access and want to replicate the same on the Internet.

There is no toll involved here, this is a limited 100gbps interconnect.

If an ISP over-provisions these too far, they are wasting money and will not be competitive.

>There is no excuse for inadequately provisioning the backend.

You don’t know what you’re talking about. When this happened was when Netflix exploded in popularity. If I’m running an ISP in Kansas and a service explodes in popularity that is hosted exclusively out of England and my transit provider has saturated peering with the undersea route, it’s not obvious who is responsible for picking up the bill there.

Transit isn’t full line rate to anywhere on earth and suggesting otherwise will get you laughed out of any room with network engineers.

It's only limited because ISPs hate investing. Yes in 2000 almost nobody was watching video on the internet but the same applies with roads- traffic increases so you have to build more capacity.

To continue your road analogy: if traffic to one specific destination increases by a ton, it makes far more sense to "batch" that traffic by building trains instead. This frees up the roads for all the people going to less individually popular destinations.

The network equivalent to this would be having local caching servers. Netflix customers can stream from the cache and only a fraction of their traffic will contribute to upstream congestion, leaving plenty of bandwidth for people just browsing the web or watching content on less popular services.

Due to the modern streaming tech stack, such a cache can't really be automatic and provider-neutral, so of course Netflix needs to work with the ISP to set that up. If Netflix and the other providers thought about sustainability even a little bit, they'd develop standards for efficient delivery, including caching, and the ISPs could simply buy a universal "cache box" and be done with it.

> Due to the modern streaming tech stack, such a cache can't really be automatic and provider-neutral, so of course Netflix needs to work with the ISP to set that up. If Netflix and the other providers thought about sustainability even a little bit, they'd develop standards for efficient delivery, including caching, and the ISPs could simply buy a universal "cache box" and be done with it.

I am sorry but there is absolutely no reason why Netflix should be paying a toll under any circumstance here. It is one thing to request Netflix to provide the netflix appliance to be installed at ISP location free of cost which I agree with but it is entirely unacceptable for an ISP to tell someone like Netflix that they needs pay a toll.

Remember what we are fighting against: there is no technical limitation here. People were on Verizon Fiber with bad experience on Netflix which got better when they tried to access Netflix over their puny work VPN. We are talking with ISPs who are strictly malicious in order to boost their own streaming over competition. I can't imagine why anyone would argue FOR their Internet Service Provider to act as a gatekeeper

You missed the point. It’s a 3 party relationship where both Netflix and the cable company didn’t want to pay to increase capacity to the intermediary transit provider.

And how is it reasonable to charge different costs for that same bandwidth depending on what I'm using it for?

Because the price you pay doesn't account for everyone using their connection at the same time, if this was the case you would need to pay a lot more. ISPs can either increase the price you pay directly or try to get that money elsewhere. Doesn't really matter if you pay for this to your ISP or to them via Netflix.

The real problem is lack of competition and insane profits of US ISPs. Where I live its common for the local municipality to build out fiber and run their own ISP that lets other ISPs connect to their network and sell access. In that case part of my cost goes to the local ISP (which isn't profit driven) and the Internet providing ISPs can compete on price.

> Doesn't really matter if you pay for this to your ISP or to them via Netflix.

Of course it matters.

If my ISP demands an extra $1 from me, I can move to a different ISP.

If my ISP demands an extra $1 from Netflix, Netflix can't move me to a different ISP.

That's pretty important, as our whole economy is built on the assumption that raising prices lowers demand.

And when all other ISPs charge $1 extra? Most people cannot choose between different ISPs without moving anyway.

If only there were some sort of legislation designed to reign in monopolies, duopolies, collusion, and business practices that prevent competition :)

You know who doesn't have a monopoly allowing them to charge whatever they like? Netflix.

Based on US ISP profits I'd say there is practically no regulation and they even split up the market so there's no competition so most consumers only have one choice.

Netflix competes with all the other streaming services no? If they increase the price too much people will stop subscribing. Or is your argument that they and other content owners should be forced to sell their content to all other streaming services?

>Based on US ISP profits I'd say there is practically no regulation

There's plenty of antitrust laws already on the books. It's just a matter of enforcement.

I don't use Netflix (true), but if almost everybody else does (also true) then I and up paying more to subsidize them.

Also there's only one reasonable option for internet in my neighborhood. Starlink or cellular would cost even more and for what? I'd still be subsidizing Netflix use.

Splitting up Netflix doesn't help; if everybody falls asleep watching a plethora of streaming services instead of one, they're still wasting bandwidth. Similarly, splitting up ISPs doesn't solve the problem either. The real solution would be to charge everybody for what they actually use. Metered data, with the price fluctuating with demand. The way the electrical system works.

> The way the electrical system works.

But that's hardly comparable? Each kWh costs some amount of energy to generate. Do you think it costs an ISP meaningfully more to run a 10 Gbps at 90% than 70%?

"Arguments about Netflix using too much bandwidth on an ISPs network are exactly the kind of thing I'd expect FCC personnel to be sympathetic with"

I don't quite understand that line of reasoning. I'm paying my ISP in order to access Netflix. Netflix is not using that bandwidth, I'm using the bandwidth in order to access Netflix.

Mobile broadband uses public airwaves, which is entirely FCC jurisdiction.

Ah the ole "Why did this government agency create this rule? It should be done by congress!"

Congress has been disfunctional for 30 years. This is the result of that.

It's like a weird "acktually" form of libertarianism, sure the most correct way to implement it is with congress, but in lieu of that what should the government do? Nothing?

Government agencies have been picking up the slack for a dysfunctional congress. Now that that power has been taken away the inability of congress to pass consumer protection laws will be on full display.

And probably met with apathy, as always. They won't realize ISPs are giving traffic to the highest bidder. They will just complain about [non-market leader] being slow to load, and move to [market leader] because "it's faster". All according to the plan of the real rulers of this plutocracy.

That's a hopeful thought. I really hope people will start to realize that what they're doing now - sending jackasses to Congress with a mandate to never compromise and to do whatever is necessary to absolutely destroy (insert opposite party) at all costs - is not compatible with a functioning government, and just as importantly, that having a functioning government would be a good thing.

This is pretty much a trend across our entire government. Our elected officials legislate their responsibilities away so they don't need to make actual decisions that could harm them politically.

Congress being unwilling to draft legislation does not transfer the job of drafting legistion to appointed officials in the executive branch.

Congress is the government for this purpose, and if you want the government to do something, then you need to target your concerns at your representatives in Congress, and not just make up novel methods for creating "laws" outside the actual lawmaking process.

>through legislation or potentially through existing powers

well yes. The obvious think everyone knows but no one says out loud is that congress has been in a deadlock for 15 years now or so. which is a small part of why newer presidents are much more liberal in making executive orders, and why agencies (especially ones moderating tech) have had to take charge to get anything done.

This story here is just another episode of the aftereffect from overturning Chevron, which will simply further stagnate any chances for change.

> FTC either through legislation or potentially through existing powers they might already have in this domain.

Yeah, I always felt that ideas of net neutrality can be generalized by properly applying competition law. But the latter became so toothless, that it's not applied in practice. That's why all these kind of secondary efforts pop up, since FTC is useless a lot of the time.

Yeah, I don't get this at all. Sure, if you follow the caselaw etc.

But this requires big picture thinking.

The internet is like the telephone is like the radio is like TV.

Ergo. THE FCC MAKES THE RULES.

Don't overthink it.

Is this sarcasm? Spectrum is a finite resource.

The domain of FCC, as it is written in the law, to create "rapid, efficient, nationwide, and world-wide wire and radio communication services with adequate facilities at reasonable charges". It seems fairly consistent that FCC could enforce net neutrality on powers they already have in their domain, without Chevron.

The issue as given in this verdict is that the courts did not find internet service providers to be in the domain of communication services. Instead they are in the domain of information service.

Giving the FTC the power to regulate this would mean to accept this definition that internet service providers are information services rather than communication services, making an ISP a digital version of a book seller. That just seems wrong. I would say that the ideal solution is to either have the supreme court redefine internet service as communication, or have the law rewritten for the same purpose.

We simply wouldn't need as much bandwidth if storage on devices was improved on devices and we went back to a model of collecting our entertainment as data files. These files could be shipped on memory stick & SD cards. All streaming is being pushed so much for is the ability to rent data access (access that can be removed once monthly payments stop), and streaming is dramatically wasteful in terms of bandwidth & power resources... If Spotify, NetFlix, & Apple music are prioritized over streaming services by other companies, it's only gouging to drive consumers to downloadable file culture again, namely resources like torrenting.

Big business will eventually need to abandon this old "market domination" model because of consumer demand to own physical files if things work correctly. Millions of people streaming the same movies and music over and over again is very wasteful and not sustainable in the long run, as each monthly service is a different (continually increasing) bill, it will only serve to bring bootlegging operations back to popularity in the long run... As once you download & save a digital file, it doesn't really require that bandwidth again & again per device.

Subverting Net Neutrality is just another way companies will exert greed on consumers, but in the long run, consumers will always win when they withdraw from subscriptions and these companies begin to falter.

We should be paying $25 a month for Internet service by now, and $2 to permanently buy a movie, and perhaps $4 to buy an album on memory stick. That would be the fair future... Instead, they're charging each user $24 a month just for (very limited selection) Netflix alone, and each other service is doing the same... Companies stand to lose everything in this battle because of the huge infrastructure (up-front) investments they need to make in order to operate... Customers can go back to pirating Mp3s, Mp4s, CDs, DVDs, Vinyl, and even Tape decks if need be. It's long overdue for the industry to check itself and do a reset... Bandwidth is not the real battle going on here, it's all economic.

> If Spotify, NetFlix, & Apple music are prioritized over streaming services by other companies

There’s a good reason why this is the case. All the major ISPs essentially worldwide have caching servers for all the major streaming service providers. Those servers sit directly at some PoP for the ISP.

This effectively removes the need for transit. Which is a win/win, for both, the ISP, and the streaming service.

IP transit at scale is not cheap.

Essentially what I’m saying is that it costs your ISP nothing to provide you with Netflix content, but it might be significantly more expensive to provide Disney+, for example.

Surprised this legal turn has so little discussion on HN right now. NN had felt like an evergreen hot debate topic for at least the past decade

7 years ago, 3000+ upvotes:

https://news.ycombinator.com/item?id=15924794

I just don’t think the internet has mustered awareness yet.

This decision effectively killed net neutrality and dooms everything that rests on Brand X in one swoop (eg California’s own net neutrality laws).

Does this decision(or the decision it was based off of) not also basically say "the fcc has no power over broadband companies" or am I misinterpreting the "information service" vs "telecommunications service" comment?

My recollection is that the FCC during the Obama years repeatedly tried to impose Net Neutrality regulations on ISPs without reclassifying them as telecommunications services, and only after exhausting that route did they try regulating them under Title II. So if this ruling stands, then there's probably enough precedent to keep the FCC from doing anything meaningful against ISPs until Congress can pass major legislation about this.

What it means is abusing chevron deference to make law isn’t going to work anymore. Such sweeping changes need to be passed through Congress.

California's net neutrality law is in great shape. It didn't rely on Brand X.

New York's broadband affordability law is in good shape too.

Ah, you're right. Hooray.

CA's net neutrality law was challenged in court and found to be lawful due to Mozilla Corp. v. FCC, and I knew that case hinged upon Brand X. At the time, Ajit Pai was trying to prevent states from making their own net neutrality laws.

Them striking down the state preemption was separate from the Brand X use, it turns out.

> In neither case [Ray v. Atlantic Richfield Co and Arkansas Electric] was the source or existence of statutory authority for the agency to preempt state regulation at issue. Nor do those cases speak to a statutory scheme in which Congress expressly marked out a regulatory role for States that the federal agency has attempted to supplant. If Congress wanted Title I to vest the Commission with some form of Dormant-Commerce-Clause-like power to negate States’ statutory (and sovereign) authority just by washing its hands of its own regulatory authority, Congress could have said so

p140 https://cases.justia.com/federal/appellate-courts/cadc/18-10...

I suspect it's because of the feeling that the world has gone much further off the deep end since then. In 2017 it still felt salvageable. If the world is screwed, NN isn't as big a deal.

Not every NN development gets a lot of traffic. Maybe it's the day after the holidays. Maybe everyone expects the Trump administration would recind it anyway, and the conservative Supreme Court justices would undermine it. Maybe people see it as another battle in a long war.

I think people are exhausted from court rulings that rarely appear to be in favor of people over companies. At a certain point the belief in an impartial, consistent and fair court system is eroded to the point of breaking. Why look/care/take part if you don't believe in the system anymore?

Are you saying that you believe our judicial system is fair and impartial only when it rules in your favor?

I vaguely recall a similar sentiment: "the system is been rigged because I didn't win!"

Courts rule on laws. If you don't like the laws, go and seek to change them. Don't cast suspicion on our judicial system, one of the reputable institutions that takes the time and effort to study facts and uphold our rights when we need them the most, because it didn't go your way on a topic of net neutrality. NN is hardly a long settled human right that you can declare it an injustice if the US turns out not to apply it in a certain way, and you're turning a ruling on whether the FCC is the proper mechanism for regulation into "the system is corrupted".

Consider applying principles of government that don't shoot yourself in the foot if the other side takes power. It's one of the few things that sets us apart from less civilized countries.

I think that feeling is typical for many, democracy is fair when my team wins or a sports referee is fair when they favour your team.

Feeds into the victim narrative when things go the other way.

Democracy is not fair, it is "mob rules" by definition.

Democracy is not always populist. People have voted against direct self interest for the benefit for others for quite some time.

Good thing the US is a constitutional republic, then.

Almost like the founders knew that "mob rules" was a bad idea...

A lot of the framers (if you're going to be a pedant, use the right words) knew that "mob rules" had troublesome implications with respect to the humans they claimed ownership of.

Would you like to roll back civil rights because they are not fair, because it’s discriminatory and therefore unfair?

The obvious bias of the US Judiciary has resulted in low public confidence - not sure where you've been?

https://www.bostonglobe.com/2025/01/03/opinion/scotus-ethics...

I'm not sure how you came to this conclusion, when their comment stated in the very first line: "court rulings that rarely appear to be in favor of people over companies".

But answering your strawman: when you have a bipartisan system with both parties led by companies I don't really have a clue how one can seek to change companies-favoring status quo/laws, but I'm willing to be educated - please help.

> But answering your strawman: when you have a bipartisan system with both parties led by companies […]

One of the parties in the US has been pushing for net neutrality[1][2] and another has been getting rid of it.[3]

If you think the two parties are equivalent (on a variety of topics [4][5][6][7]), I'm not sure where you are getting your information from, but it is not accurate.

[1] https://obamawhitehouse.archives.gov/net-neutrality

[2] https://obamawhitehouse.archives.gov/blog/2014/11/10/preside...

[3] https://www.vox.com/2017/12/14/16771910/trump-fcc-ajit-pai-n...

[4] https://aflcio.org/press/releases/donald-trumps-catastrophic...

[5] https://cwa-union.org/trumps-anti-worker-record

[6] https://www.theguardian.com/environment/2024/dec/02/trump-al...

[7] https://time.com/7201582/donald-trump-vaccines-fact-check-20...

Thank you for the links! Then I don't understand something: if this one party supported some topic, any topic, how come said topic is not made into law but only lives in the internal regulations of some organization? Courts applying existing law will then by necessity strike those down, by definition: if it's not in the law it will not be recognized by the courts. Simple. So the whole complaining "court strikes down something" is pointless, because the courts function as designed. I'd say the problem is the parties which don't bother making supporting laws - yes even the parties claiming to support said topic. How can a party holding majorities (in a two party system one party will always have majority) even temporary, not actually make laws? Isn't this the very reason parties exist? So I'm still confused.

> So the whole complaining "court strikes down something" is pointless, because the courts function as designed.

The courts are judged by humans who have biases and motivated reasoning:

* https://www.nycla.org/resource/blog/hon-aileen-cannon-wrote-...

* http://archive.is/https://www.theatlantic.com/ideas/archive/...

* https://ccf.georgetown.edu/2024/10/11/trump-appointed-federa...

People (judges) sometimes go into court with an pre-conceived notion of what is the 'correct' way to interpret things, and they think it is 'objective', but in fact has been shaped over time by (active) cultural forces:

* http://magazine.law.nyu.edu/index.html%3Fp=7606.html

My point was: if there's no law about something I cannot have any expectations from courts, so why there's no law?

It's really hard to pass a non-budgetary law without a supermajority.

So the solution is to have the judiciary become defacto legislators?

They're doing that right now. That's what defacto means.

So the three powers system is broken? Almost "by design" one could say, although it seemed to have worked for a while, maybe when the level of sophistication was lower (but whose level?). Or maybe there was a time when the actors tried to use the system, not actively seeking tricks to abuse it?

Obviously the problem here is that the judicial branch still works too well, and need to be broken like the rest of the government.

Then and only then, when every branch of government at every level has so much friction that the offices themselves burn to the ground, will we be able to enjoy the freedom that God and the Founding Fathers intended.

If the government that governs least governs best, then the government that governs best doesn't govern at all.

Which would make the founding fathers founding... nothing?

> So the three powers system is broken?

Obviously it's broken, because it's not doing what I wish it would.

Are you sure it's not broken because it's functionally an oligarchy?

The Chevron doctrine, which was recently overturned by the US supreme court, stated that US courts should defer to the regulations of US agencies such as the FCC. As I understand, under Chevron, functionally, the FCC's regulations on telecommunications were law to the courts and the corporations.

It seems to me that it's unreasonable to expect Congress itself to have informed, correct opinions on technically complex topics. There are a limited number of Congressmembers, most of whom are not technically skilled. Delegating regulation to domain experts who remain accountable to Congress seems like a reasonable solution. If Congress disagreed with the FCC's handling of the situation, couldn't they have made a law to overturn the FCC's decision or limit its authority?

Overturning Chevron is a victory for deregulation in general. As I understand, Congress could pass laws to explicitly reinstate the authority that the FCC previously held. However, pro-deregultion factions (I assume mostly Republicans, but I don't really know) now have a chance to block that, and even the supporters of NN have other fish to fry.

Essentially overturning Chevron curtailed the authority of regulatory agencies-- authority which Congress expected them to have, and could have restricted at any time--without going through Congress. Yes, it's the job of the court system to interpret laws. But when they change interpretations which other laws depend on, that's basically changing the laws themselves, isn't it?

Okay thank you this answers fully my question. I guess one could make that "Chevron doctrine" into law, a one-time law, then we'd have the issue solved right? So not making laws for every single topic, just enshrine that FCC and others make "laws", then the courts would have to respect that. Of course unless they contradict other laws, thus the courts will still not run out of cases, but at least you'd have some more predictability. But if the whole system relies more on precedent cases instead of explicit laws, you can never reach that predictability (see Roe vs Wade)...

I don't know of any reason why they couldn't make the Chevron Doctrine law. However, I doubt that the Republican congressmembers will let it happen any time soon.

Disclaimer: I'm not very informed, I just did a little Googling and then summarized it as an exercise to try to reinforce my own understanding.

> It seems to me that it's unreasonable to expect Congress itself to have informed, correct opinions on technically complex topics.

Actually, that is exactly my expectation of my representatives. They have the resources and connections to find experts and become reasonably versed in these topics so we should expect them to have informed correct opinions on complex topics or they shouldn't be in the job.

> They have the resources and connections to find experts and become reasonably versed in these topics so we should expect them to have informed correct opinions on complex topics or they shouldn't be in the job.

Do they have the time?

There are only so many hours in the day and week, and only so many things that are able to be done in ((sub-)sub-)committees in those hours. Further, legislators have to pass law on every conceivable topic, whereas agencies have a focus (FCC, FAA, FDA, Coast Guard, etc).

And if the situation changes the legislators may have to circle back and pass new bills/regulations and that may take a while given finite resources (time) and other priorities, so various industries may languish in sub-optimal environments due to outdated legislation.

That's the whole point of the agencies (and executive?): delegation to subject matter experts so legislators aren't mired in minutia and can perhaps look at the bigger picture.

In an ideal world, I agree. But Congress is made up of the most electable people, not the most competent people. I would rather they recognize that and delegate rather than trying to make laws about complex topics which can easily backfire, or just taking no action at all.

Perhaps supernova87a thinks the court system is doing a great and highly professional job of enforcing a bad set of laws handed to them by an failing legislature?

Much like a professional painter and decorator can demonstrate great care, precision and craftsmanship in applying the paint, even if the customer chose an ugly-ass colour.

Thanks for your comment, and this is a reply to others who have replied.

I wouldn't go so far as to say the courts are doing a great job. But they are doing their job to interpret the laws that have been written. Far more conscientiously than the political branches. Interpretations of the law are yes, sometimes interpretations that may favor one side over another, because laws are not always clear down to the very last edge case or issue that was not anticipated at their writing, and high level principles (sometimes laws have to be at this level) can be interpreted different ways. If that were not true, then you would hardly need a judiciary. That is their role.

But to say that the judicial system has been corrupted and is biased, only because in recent years has made more rulings against "my side" when the issue is not clear cut, is to undermine one of the institutions that takes its job relatively seriously. If we adopt this perspective, why are Republican/MAGA opinions that the judicial system is corrupt because they got ruled against so many times, not equally legitimate? Who is to decide that your saying the system is biased is more worthy than theirs?

How can we sustain a system where if the rulings go my way, then the system = trustworthy? A key distinguishing aspect of an advanced democratic society (cf. January 2022) is the acceptance of rulings and elections that don't go your way. And that courts rule based on law.

Many of the things that laws were originally written for are not covering the situations that are arising now. If you want to make the outcome different, go and change the laws and make it clear what the rules should be. Update them for technology developments, for changes in societal expectations. There is a mechanism for that. And the judiciary will have to adhere to the laws and Constitution to rule on them.

Courts are not equipped to be legislative bodies, and if you put that expectation on them, you are changing their scope and role. And not for the better. Judges will get elected for their favoring of one side over another, or to be writing laws while ruling on cases. That's not something I want our democracy or separation of powers system to start doing.

And if Congress is broken, that reflects the troubling divisions we have in society -- no court will be able to fix that (without actually corrupting what the courts are for).

You can look at opinions on recent rulings by their peers and determine they use motivated reasoning in their ruling to achieve the desired political outcome.

I'm not condoning some of that in recent rulings. But also ask yourself, is this the first time you noticed it, and that wasn't happening for rulings over the past 20 years for cases where you happened to agree with the outcome? Only sudden interest in applying that principle now, I guess?

>>Courts rule on laws.

Not always. They invent laws. They defy laws. They defy common sense. For example "qualified immunity" is invented out of thin air, while "the spirit of Aloha says US Constitution does not apply to Hawai" is defiance. "boneless chicken does not mean it has no bones, but it is a style of cooking" is totally nuts. All the examples are Supreme Courts cases.

This is not about winning or losing, it is about judicial system not fair and not impartial, sometimes borderline crazy.

> "the system is corrupted"

"Multivariate analysis indicates that economic elites and organized groups representing business interests have substantial independent impacts on U.S. government policy, while average citizens and mass-based interest groups have little or no independent influence. The results provide substantial support for theories of Economic-Elite Domination and for theories of Biased Pluralism, but not for theories of Majoritarian Electoral Democracy or Majoritarian Pluralism."[1]

1. http://www.princeton.edu/~mgilens/Gilens%20homepage%20materi...

Yes, of course what you quote is true -- more resources favors large entities and corporations. Similarly for example, the rich versus poor when appearing before the legal system. That is a deep problem of democracy + capitalism.

But if the desire is to reduce the influence of money in politics and the weight of corporations in our lives, that is something for Congress and our laws to be modified to do. Similarly to decide to tax, redistribute, or equalize the playing field between rich or poor. You would not have a court decide what tax policy to enact, or what the thresholds of welfare or social security brackets are. Courts are to resolve concrete disputes between individual parties using principles derived from the law, not promulgate new laws.

Courts have to treat people and entities coming before them in cases as equal parties, based on their arguments and evidence. If the side of corporations have more resources to pursue cases, hire lawyers, and fabricate evidence, etc. than individuals, then that's something for Congress and laws to fix. Courts are not here to somehow say that when there's a dispute, individual people's arguments take precedence over a corporation's when the law is clear about enumerated rights or regulations. Or to say a general policy principle like "people's rights trump corporations' rights". That is not a justiciable statement.

The relative rights of people versus corporations is where laws should lay out those definitions, in the places and applications where the theoretical becomes the real. Not for courts to create novel rights that are not subject to the democratic process and checks/balances on such important questions. Or if they're not specified in the Constitution.

No they don’t say that. Your assumption says more about you.

This forum, and the country as a whole, leans significantly further right today than it did 7 years ago. You'll now find way fewer people willing to openly disagree with conservative-minded rulings from the government.

Do not confuse silence with absence. Also, that weird-looking fella in the corner with the bits and vectors sticking out is not really representative.

This site doesn't lean further right. It leans exactly the same way it always did.

The left moved further left.

10 years of very effective republican propaganda has convinced people that whatever republicans do is good

I wonder how many people remember the propaganda of Google and Reddit logos loading low resolution versions slowly around peak dooming?

thanks for the good memory! i'd almost completely forgotten about that

Back then, Netflix was using the threat of net neutrality regulation as a bargaining chip in their fight with Comcast/Cox. Once they reached an agreement on transit fees the astroturfing stopped. Since then it's only arisen as an wedge issue for politicians to fundraise over. We won't hear about it again until the midterm elections.

Out of interest, from a US point of view since I'm not there, is this going to end up as a relatively damp squib in the very near future now we have access to 5G and all the competition there.

Last year I was able to abandon completely my broadband provider and now have two sims, one for a home router and one for a mobile router with pretty much unlimited data.

There is so much competition in the 5G mobile space that the ability of these older closed market providers over cable/fiber is surely going to be a thing of the past very soon and thus the need to enforce legal neutrality will fade?

Net neutrality is more about backhaul and peering. None of that goes away with more competition at the subscriber level. In fact, it become far more significant.

As I understand it, historically in the US many people have only had access to one broadband provider.

So an American couldn't move to a different broadband provider if their current provider made Netflix slow.

On the other hand, if 5G technology had such great performance and coverage that every American had a choice of 10-15 different ISPs, when one ISP slowed down Netflix they could simply change providers.

That might make it less problematic for some ISPs to make Netflix slow.

I wouldn't count on true competition to last.

Similarly how it is surprising to see hundreds of too critical comments addressed at FOSS application with solo developer with 10+ years of excellent track record on another post in the same hacker news page: https://news.ycombinator.com/item?id=42583082

We have so much more to worry about in the US now. An African billionaire just paid over $270 million to get the guy who organized white supremacist militias to overthrow the government in 2021 elected as president. These criminal robber barons want to eliminate agencies like the FCC and any regulations like NN as well as stack the courts with people who are also robber barons, etc, etc.

“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.” — C.S. Lewis

It's beyond dangerous to allow multinational corporations to buy US elections for obvious reasons. They're not aligned with any nation and only motivated by quarterly returns. It's bad for everyone including the robber barons as the markets are captured.

Big tech banned the people who cared. Now no one cares what happens to big tech.

If it's Google or Verizon deciding who wins or loses the digital loterry doesn't make much difference to me after the last 10 years.

I was like "meh" out of a simple realization that there will never be net neutrality in the US just like there are little chances of universal healthcare, maternal support and such.

2024 was the successful culmination of 50 years of efforts to turn the US from a democracy into a single-party state, similar to Russia & China. That's a huge shift both for people who live here, and the entire world. Net neutrality is cool and all, but I've got bigger things to worry about.

I'm reminded of when it was legal for cellphone companies to charge different fees to access different websites. Naturally, the bigger ones got the best monthly rates.

https://www.techdirt.com/2014/07/31/pay-different-prices-to-...

Short version: They killed it because of "Loper Bright" which killed the Chevron Deference.

In other words: Until recently, US executive agencies were given a lot of leeway in creating regulations that align with their mandate from Congress. This leeway was struck down by the Roberts Supreme Court, insisting that courts can reign in executive agencies and keep them from operating with a broad mandate.

This court doesn't say Net Neutrality is bad or unconstitutional. It says that, under the new precedent set by the Roberts Supreme Court, the FCC does not have the authority it claims to have in regulating ISPs in the same way as a phone company.

If Congress were to pass a law that said the FCC had the authority, or that net neutrality should be instated explicitly, it would happen.

Has there been another Supreme Court that has overturned as many precedents than the Roberts court? It looks to me that this court will have a huge impact far into the future.

They are less activist when it comes to ethics rules though. The Clarence Thomas situation is ridiculous.

https://constitution.congress.gov/resources/decisions-overru...

Looks like there's been plenty more of that in the civil rights era - look at all the cases in 1960s!

One to move society toward tolerance and one to move society toward 1984

indeed. how many of these overturns in the last 10 years helps the current voting citizens and not corporations?

>> Has there been another Supreme Court that has overturned as many precedents than the Roberts court?

Yes, every modern Supreme Court (1950's and on) has overturned not just as many, but more, precedents than the Roberts court.

"The famously liberal court led by Chief Justice Earl Warren from 1953 to 1969 overruled an average of 3.1 precedents per term. The number ticked up slightly as the court moved to the right under Chief Justice Warren E. Burger, who led the court from 1969 to 1986, to 3.4 precedents per term. It dropped under Chief Justice William H. Rehnquist, who led the court from 1986 to 2005, to 2.4 precedents per term.

Through the end of the term that ended in June, the Roberts court has overruled precedents at the lowest rate, at 1.6 per term. But it has picked up the pace since the arrival in 2017 of the first of three justices appointed by President Donald J. Trump. Since then, the rate has been 2.2 precedents per term, still the lowest of the four courts."

-- https://www.nytimes.com/2024/01/29/us/supreme-court-preceden...

What news sources have you been consuming that have been telling you otherwise?

Perhaps the fact that the courts referenced in that article are 40-60 years in the past, so anyone under age 50 would have the personal experience of seeing the Roberts court as exceptional.

edit 45 minutes after posting: Also, more opinionated, the Roberts court's reasons for their decisions are often pretty wild and many of their decisions have been a detriment to the country. My pet cases to loathe are Citizens United and Rucho v. Common Cause.

The Roberts court is actually the least "activist" in modern history. His whole philosophy is all about maintaining precedent (obviously sometimes he can't get his way--which seems to be what happened in Dobbs, for instance).

Bullshit. Overturning decades old decisions is activism, plain and simple. He's taking a steaming dump all over the very idea of precedent and star decisis, it sure as hell isn't his philosophy to maintain it. If it was then Roe v. Wade would never have been overturned.

Steelmanning the decision to overturn Roe there's two factors.

* The belief that Roe was illegitimate from the beginning and that Right to Privacy was invented by the courts out of nothing.

* Changing prevailing sentiment on the issue in a manner not dissimilar to the position they were in during Civil Rights. Meaning if left to stand the existing rulings would have impeded progress the country clearly wanted to make. This was one of the justifications for Roe in the first place.

I think it's not hard to see blue states as acting very much like southern states did during the period the tide turned. This of course requires being neutral on abortion but I think it's not inaccurate to say that "an obvious wrong and evil" is how pro-life people view the issue.

Thank god for John Roberts for preventing governmental overreach by unelected bureaucrats which has become increasingly ideological

ahh yes, the overreach like making sure Netflix can't make competition worse by bribing ISP's.

The idealist in me also hates the idea of unelected "government experts" having a wide berth to do whatever they think is best since I know that 50% of the time they'll be appointed by / taking orders from [Insert part(ies) I don't like] and thus they'll be against my interests.

But the pragmatist in me still winces at all the stupidity that happens in the real world because Congress hasn't passed many useful laws in 25 years. Most ideas are put into place by executive fiat because we only have two functioning branches of government now. (Yes, I agree that it's still better than just having one!)

You should set aside an hour or two and research how the administrative state actually works. These agencies aren't full of political appointees, rather they're staffed with engineers and scientists who are dedicated to keeping our water potable, food safe, weather tracked, air travel safe, etc.

It's literally not possible for the unelected lobbyists who write bills for Congress to write imperative-style laws. Even if they could manage to promptly draft and pass updates to laws as infrastructure, tech, the situation, etc evolve, it wouldn't be able to get the information needed to provide coherent instructions, and it would hamstring implementation forever. It's obviously much better for Congress to write in a declarative style, e.g. "1251.A.3. It is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited;" [0]. Clearly an important goal, but absolutely impossible for Congress and its unelected lobbyists to write out executable instructions for achieving this (also, Congress regularly explicitly delegates implementation to actual experts via clauses like this "1251.d. Except as otherwise expressly provided in this chapter, the Administrator of the Environmental Protection Agency (hereinafter in this chapter called ‘‘Administrator’’) shall administer this chapter."[0])

Just listen to the oral argument in the recent San Francisco vs EPA Supreme Court case [1] (or review the transcript [2], or get the summary from Oyez [3]). During heavy rains, San Francisco's city govt dumps a lot of effluent into the Pacific ocean. The EPA requires they get a permit, track the amount of effluent, work to remediate the issue, and develop a Combined Sewer Overflow control plan. The EPA wants to help, but San Francisco has failed for decades to provide adequate information about their sewage system to the EPA to enable the EPA to help develop said control plan (e.g. pg 98 of the transcript).

There's just no way Congress's unelected lobbyists could hope to write imperative laws. The experts staffing the administrative state aren't receiving partisan orders from the Democrats to harass San Francisco. Republicans don't issue partisan orders to agencies either (the Republicans just throw sand into the machine by tying up agency experts in frivolous lawsuits).

But in any case, it's the agency experts and their hundreds of thousands of years of knowledge and experience who keep America running.

[0] https://www.govinfo.gov/content/pkg/USCODE-2018-title33/pdf/... [1] https://www.supremecourt.gov/oral_arguments/audio/2024/23-75... [2] https://www.supremecourt.gov/oral_arguments/argument_transcr... [3] https://www.oyez.org/cases/2024/23-753

>If Congress were to pass a law

wonderful joke, thanks for the new years chuckle.

But yes, that's all part of the plan. rely on the dysfunction of congress and the end of Chevron to impart a deadlock that lets private corporations run free. All while dismantling whatever other regulations they can get away with.

It's hard to see such a clear obvious case & come out so preposterously incredibly fantastically wrong.

> The question is whether, in so doing, they are merely a conduit for data transmission (a so-called "dumb pipe") and thus offer consumers a telecommunications service (as the Safeguarding Order concludes); or whether, instead, Broadband Internet Service Providers offer consumers the capability to acquire, store, and utilize data-and thus offer consumers an information service. In our view, the latter is the best reading of the Act.

This doesn't match probably 9x 9's of internet traffic! This is almost never the case!

What do we do when government is so blankety inept? How do we reconcile a court that's allowed decide things with no respect to obvious facts? Why are there so few ways of dealing with these people in any serious capacity, getting them out of here?

The best we can do is vote/encourage Congress to pass straightforward laws to address these cases, making the rulings defunct. As another commenter mentioned Congress has been incapable of anything for ~30 years so... Nothing?

Several related cases; the opinion in one of them is here: https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0002p-06.pd...

Lousy reporting: although it quotes the opinion and links to other articles on the same website, the article doesn't bother to cite the opinion or even mention the name of the case, let alone link to the source.

the NYT article links to the same PDF you provided

https://www.nytimes.com/2025/01/02/technology/net-neutrality...

Huge pet peve of mine. Reporters incentive are to keep you on site, not inform.

It is particularly egregious when reporting on governmental public safety announcement and laws. Reporting buries the web results, but fails to cite it.

I'm generally a libertarian, but would be in favor of required linking of government PSAs and laws

reason.com has good articles on the topic.

https://reason.com/tag/net-neutrality/

I would love to see HN adopt a policy of replacing links to news pieces about court opinions that don't link them with links to better news pieces that do.

Why even bother with "news" pieces? They're all just sensationalist trash.

Just link to the source directly, most of us here know how to read and (probably) have the mental acuity to form our own conclusions.

Helpful analysis that provides additional context can exist, eg. SCOTUSBlog that provides useful summaries while reliably linking to the rulings themselves. It's not all sensationalist trash.

Pretty typical of media reporting on court cases. Just awful.

Isn't an alternative is to say, if you aren't treating all content the same - then you aren't a common carrier, you are a publisher and therefore responsible for the content?

ie you choose - if you want the "common carrier" protection you need to behave like one.....

this seems like a fabulous solution, without making more things "illegal"

Every day I thank the old gods (and Longmont, CO) for my municipal gigabit.[1]

[1] https://mynextlight.com/terms-conditions/

Note that your municipal fiber network partners with Qwilt to preferentially accelerate commercial streaming platforms like Netflix.

Whoah I did not know that and it directly conflicts with their TOS. Do you have a link to that?

It's in the comprehensive financial statement for Longmont, which I pulled up looking to see the economics of your muni fiber system (I'm on the local commission in my muni that considers stuff like this, and the numbers didn't make sense for us --- but you're in an exurb, so the math is different.)

What’s the big deal? It’s just a content cache. You can get dedicated cache appliances directly from Netflix for free if you have a large enough customer base.

I didn't say it was a big deal, but then, I think "net neutrality" is pretty silly.

Caches do not break net neutrality.

Nothing wrong with the concept of net neutrality. Implementations may be lacking, but I do not recall any major issues with the EU regulations. Perhaps all the perceived silliness is a result of the US legislature?

Preferential caching for streaming services that play ball with your ISP don't break net neutrality?

Isn't "preferential caching" just Netflix providing a caching server for free to the ISP? Is this that different from Netflix building more CDN servers worldwide? It is Netflix paying in either case without exploiting their monopoly powers.

Clearly not a pro but I think it comes down to who Netflix is paying, or even helping out. Because they gave Nextlight a free caching server, any competitor who can't afford to do the same now has decreased performance.

That is an interesting way of looking at things. Netflix adding a cache has absolutely no impact on what any competitor does, or the quality of their service. It will function precisely the same the day before and the day after a Netflix cache is installed.

Actually at the very large ISP I worked at customers saw better performance because the back haul wasn’t congested with Netflix traffic.

Yes; this, broadly, is why I think "neutrality" is kind of a silly concept.

Most interesting part of this post (to me) is to see how far the perceived importance of net neutrality has fallen on HN. 96 points in 5 hours as of this comment.

Old posts: https://hn.algolia.com/?q=net+neutrality

might just be bad timing. It is the day after the US holiday season.

May be by design too. 2 days ago, we got more formal reporting on how Russia may have been involved in manipulating elections. Again. But it was on New Years' Eve. (not that I expect that news to last long on HN).

If I wasn't so tired of all this falling on deaf ears, I'd chuckle at the irony.

net neutrality laws giving the FCC broad powers, just isn't that important though.

Late nineties I remember one hot topic in society was prayer in school, and nowadays I hardly hear about that anymore, 9/11 had something to do with that though.

Seriously, government gets into these fads, The Next Big Thing, and, since usually a whole new group of young, idealistic, inexperienced humans comes of age, it seems like a hot button item.

It rarely is, certainly not enough for the government to "do something" about it. We as individuals can fix the problems ourselves, if allowed to.

The cycle repeats.

I agree with all that but don't forget the astroturfing cycle. Net neutrality was a big fight between the ISPs and big tech companies years ago. Now that they've mostly reached a stable armistice and it's clear from variances in state to state law and policy that have arisen in the meantime that this is not a make or break issue for either side there's no money being poured onto the fire to whip people into a frenzy.

Net neutrality is still important but it no longer matters how we feel about it because our government and the courts have been bribed and captured by industry and they're intent on screwing us. This is just one of what will be a very long list of important regulations and oversight we're going to see stripped away. Might as well get used to it.

net neutrality has for long not been useful , since walled garden owners control the masses now

The real solution to this issue is municipal broadband.

If there is a municipal option for high speed internet, people who don't want deal with companies' monitoring and throttling shenanigans have a viable option from a community-focused provider. This provides price and service competition for the Tel-Co cartels who collude to fix prices and pull all kinds of other nonsense (like taking billions of dollars in federal funds and then deliver next to nothing... then lobby their way out of accountability).

Not again. How long is this going to be happening back and forth. Opponents of net neutrality are monopoly freaks. Net neutrality should be enforced on competition law grounds.

Odds are low that Biden can affect the Supreme Court. I think the next back-and-forth is 2027.

>How long is this going to be happening back and forth.

It will keep happening until the legislature either writes it into law or refuses. The executive should not be legislating in the first place outside of emergencies requiring immediate action.

>Opponents of net neutrality are monopoly freaks.

There are plenty of antitrust laws already on the books. Having the DOJ enforce them would be the correct route, as opposed to creating additional, unnecessary NN regulation which would effectively cement the ISP monopolies.

I agree in theory, but in practice, anti-trust laws only become more and more toothless with time so this isn't getting any better.

I don't agree about cementing monopolies, it's the opposite. Net neutrality beats anti-competitive practices back, because as above, regular competition law got almost useless and not applied to solve these issues de-facto.

If competition law enforcement will improve - there won't be a need for separate net neutrality rules.

Problem is that opponents of net neutrality don't want competition law enforcement either, so they want to have their anti-competitive cake and eat it unchecked.

The net-neutrality rules that were just overturned would have actually allowed the FCC to grant regional monopolies. It's almost like FCC was created in part to maintain ATT's relationship with the government.

Did they change the rules from before? Otherwise it makes zero sense.

AT&T and Co. proponents like to throw 1984 style of "ignorance is power" arguments around though, so it's not even funny.

Don't worry guys, democrats will write a strongly worded letter in objection to this.

I think people largely forget that this happens to Republican issues as well and they have just as little recourse. It's just you probably consider them victories and either ignore or bask the Republicans loudly complaining and then doing nothing.

I think the reason that The Democratic Party feels ineffectual is because they've been on the defensive for so long they've lost their aspirational platform in favor of "stopping Republicans from doing bad things." They're the opposition party now.

I like how they quoted Brendan Carr - he's one of those people who think anything done in the public interest, to protect people's rights, increase transparency or to hold power brokers accountable is, without exaggeration, evil tyrannical overreach.

These kinds of people talk about personal responsibility because they don't believe in social or civic responsibility.

I mean don't get me wrong, he's ok with the government paying for things to gift them away to corporations, or bailing them out or banning things like municipal broadband and consumer disclosure or legislation that enables dark money to move around - that's apparently good government doing good things.

It's like he reads Philip K Dick for inspiration of how to structure a society.

He's not nearly that principled. Private capital acting in a way he doesn't agree with politically is wrong according to him. See his complaints about Big tech "censorship" of misinformation and Harris's appearance on SNL

His idea of censorship is when social media takes steps in the public interest and their civic responsibility of providing a social good seriously.

Meta is trying to avoid another Myanmar catastrophe and he wants to use the power of the state to ensure no responsible actions for the public good will be taken.

It's ideologically consistent. Anything acting for the betterment of society is somehow communism

Reading this guys twitter feed makes my blood boil. Look at what he posted about this: https://docs.fcc.gov/public/attachments/DOC-408580A1.txt

His argument is just 'this is a new way of applying these regulations, and that bad!'. Nothing about the cost impact that this will have for consumers, nothing about merits of the case, just political BS.

He's our incoming FCC head who previously was a lawyer for AT&T, Verizon, and US Telecom [1]. This is going to be a very bad 4 years to be an internet user except for probably Twitter users who will get preferential treatment.

[1] https://web.archive.org/web/20231022070004/https://www.latim...

Like Ajit? GOP always staffs agencies like regulatory capture is the end game.

There's really two ways to read that behavior:

1. bad faith: They're a corrupt band of thieves trying to plunder our pocketbooks

2. good faith: They're ideologically committed to this strategy and believe it is beneficial

I think I can argue #2 from a GOP perspective but I've always found their arguments to be thoroughly unconvincing so I don't know if I truly understand it.

It's much easier to handwave people away as corrupt and incompetent but that's effectively a stand-in for any power broking behavior you don't understand.

I never claimed incompetence. They're very effective.

> we hold that Broadband Internet Service Providers offer only an ‘information service’ under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the ‘telecommunications service'’ provision of the Communications Act, id. § 153(51).

Can we just appreciate how silly and sad it is how many billions of dollars hinge on the distinction between two terms which 99% of Americans would, if they weren't aware it was a political issue, are basically synonyms?

Hi Mr. Brown, CEO of Comcast, what does your company do? Is it a telecommunications company? "No!! We only provide information services!"

It's hard to get really worked up about courts falling on one side or the other of an argument between multibillion dollar corporations about how to allocate bandwidth costs.

There's a lot of concern about the lack of net neutrality being unfair in the sense it gives providers the ability to make traffic to sites slower, but does not having net neutrality also mean they can simply refuse to send/receive to specific domains or IP addresses?

Technically yes, but this has been done very few times in history.

Well, it's definitely a new historical era in which old precedents are being thrown out and new ones made. I'm sure anti-piracy organizations will use this to their advantage soon to make a deal with ISPs to block suspected piracy sites. Also I do wonder if we'll see U.S. ISPs refuse to allow access to certain sites based on religious freedom grounds soon.

I don't think any US conception of "net neutrality" was going to protect the suspected piracy sites.

The issue comes down to what we consider "piracy".

- P2P networking by itself is not piracy, but the casual connection can put a lot of honest sites in danger, from malicious actors.

- If the Internet Archive survives its current ideal, this is an easier way to kill that off.

- Any storage company that can't pay enough money can be thrown off the map. You can share files, which may or may not be copyright after all.

rulings like these start to make the cracks.

The Internet Archive just got its ass handed to it in a court case about these issues so I feel pretty comfortable with the conclusion I drew upthread.

Well the publisher won in public opinion if that's your interpretation. Now anything trying to be a digital archive is privy to being taken down. A very dangerous precedent. I fear for the Wayback machine more or less letting corporations rewrite history

I agree. Pro-abortion sites, pro-LGBTQ+ sites, any site that goes against the right will be pressured (whether by the government or by PAC-funded lawsuits) to be dropped or blocked.

that we know of.

I'm a bit tired of living in history in the making. Please can we not tempt fate here too?

A grander theme is seeing the effects of the Loper Bright decision and the end of Chevron (and certain other, but not all, forms of) deference to administrative agencies.

Any thoughts about why I should, on the advent of a second Trump administration, be dismayed about a lack of deference to executive agencies?

The inability of executive agencies to create regulations will extend beyond one presidential administration. Given that conservative administrations tend to favor cutting regulations anyway, this jurisprudence will likely impact liberal administrations more than conservative ones.

"conservative administrations tend to favor cutting regulations"- citation needed. They favor looking like they do, but end up putting in punitive regulations that only the large entrenched, conservative owned companies can afford to comply with, stifling competition from below.

100

Sure. Off the top of my head, consider the nontechnical, non-expert representatives and senators in the upcoming Congress — who, now that Chevron deference is gone, will have to fill in gaps and cure problems caused by adverse or simply wrong decisions by the members of the judiciary (who are also nontechnical and non-expert in the various fields covered by the agencies). If Congress can pass anything, let alone get it signed into law, that is.

Also consider the more-independent agencies, whose boards don't necessarily change composition when the executive administration does.

I mean this entirely in a non-political way, too: I'm playing devil's advocate.

Apropos of the first point, though, do you trust MTG (for example) to engage in wise gap-filling or overriding of the judiciary when it comes to, say, net neutrality or Schedule I drugs?

That's not a snarky question: it's a rhetorical one, only to respond to your point.

As a matter of public choice theory I think that over the long haul it is better to trust MTG than to imply expansive powers for unelected administrative staff. I think those delegations are often quite good, but best when construed narrowly.

Science and technology change rapidly, leaving interstitial gaps that often need quick policy-filling — difficult for most Congresses, next to impossible for the forthcoming one. Likewise, the judiciary does the damndest things and sometimes needs to be overridden or worked around quickly — and by someone who knows what they're talking about.

I see both sides of the issue. Truth be told, the Constitution does not provide for a fourth branch of government. But agencies are so ingrained in our fabric that they're not going anywhere anytime soon.

If Net Neutrality is a test case for whether science moves too fast for a bona fide, representative legislative process and should be handled instead by broad grants of power to executive appointees, then I'm comfortable picking the side of Congress over the administrative state. I think we probably agree, though, there are better cases to highlight the utility of regulations over laws!

The internet is a common service everyone needs. There should be a separate department that oversees all internet services in the US, ran by an elected official.

>“[U]nlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC's reading of the statute. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024) (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984) ) … Using ‘the traditional tools of statutory construction,’ id., we hold that Broadband Internet Service Providers offer only an ‘information service’ under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the ‘telecommunications service'’ provision of the Communications Act, id. § 153(51).

>47 U.S.C. § 153(24) information 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.

>telecommunications 47 USC § 153(50) 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.

What in the absolute hell are these definitions. These sound like they were made by the world's first LLM.

"Telecommunications service" sounds like phone or TCP/IP to me. You make a connection, "speak" the data, and ideally it's supposed to be received in order and without distortion on the other side.

"Information service" sounds like websites and apps.

You'd think a judge would be capable of reading a law as-written. Internet Service Providers aren't running webpages, they don't even host email or newsgroups anymore.

Maybe I'm remembering wrong, but when Chevron deference was overturned, didn't the court explicitly state that it only applies to future orders?

i.e., prior orders relying on Chevron would be grandfathered.

But here the rule was created April 2024, prior to Chevron decision in June 2024.

The Supreme Court said in Loper Bright that previous cases decided under Chevron are still good law. But this lawsuit challenged a brand new FCC order that had not been previously litigated.

Okay, but that's so weird!

The court is saying, if we had litigated this (and most likely upheld it, because Chevron) then it could stand now, even after Loper Bright. But if we never looked at it before, then we get to use the new rule.

That doesn't make a lot of sense.

Like, the counterfactual is they litigated and upheld the order, so it's safe. But because it was never challenged before, it can be challenged now. Only orders that were challenged are safe.

It would make more sense to do it the way I thought: everything, even if it wasn't challenged, that would have relied on Chevron still can rely on Chevron. That gives "the benefit of the doubt" to the agency that passed the regulation in the Chevron era.

In the new scheme, the regulators have to comb through all their orders going back decades, figure out which ones were never litigated, and figure out how to defend it without Chevron.

You're coming at this from the perspective of "it's weird to change the rules after the fact" which is reasonable but not how stare decisis works. The principle is that once something is decided once, it should be decided the same for all other parties litigating the issue unless and until the precedent is overturned. If something hasn't yet been litigated, it is still an open question.

It would be weird if, for example, the Supreme Court said that gay marriage is constitutionally protected but all the existing laws banning it could stand because they were enacted earlier.

It would be equally weird if the Supreme Court said that gay marriage is constitutionally protected, but states that have previously successfully litigated challenges against their laws can keep forbidding it..

On the contrary, I'd expect the Supreme Court to say exactly something like that when it suits them. The Supreme Court throughout history has invented as many hoops as they needed and then jumped through them in order to appeal to political winds and public opinion.

Everything can be litigated again. However eventually the courts have to slow that down. The courts decision is saying that Congress may not have done their job because the agency ruling was what they would have done anyway and so the courts don't want to overturn everything right away. I'm sure most of the previous decisions will be litigated (if congress doesn't change the law first), but they don't want thousands of cases to come before congress has a chance to make law what they should have done. If you challenge the rules now you have to convince the courts that congress wouldn't have passed that rule as law, which is harder (but not impossible).

OTOH, I think/hope the courts are sending a message to congress that they need to work out more details in the laws.

> figure out which ones were never litigated, and figure out how to defend it without Chevron.

I'm fairly certain the regulated entities will take this upon themselves and will create the lawsuits that provide the opportunity for the administrative agency to defend their position.

If they're that concerned, then they should get with Congress, and get a new law passed. This is precisely what Chevron was meant to create. Administrative agencies simply cannot unilaterally create and enforce law anymore.

Oh, okay so the solution is as easy as "congress has to do a thing". Meaning it will never happen.

Then, maybe it shouldn't?

The federal register grows every year by an exceptional amount. Congress really enjoys the fact that you believe, for no particularly good reason, that they "do nothing." It really clears the road for their rich friends agendas.

why are we always fighting for freedom in the "land of the free"??

Not sure if this violates any rules, but I just pulled the actual ruling and asked Gemini to summarize it. See below: """ Summary of the Decision

The Sixth Circuit Court of Appeals overturned the Federal Communications Commission's (FCC) 2024 "Safeguarding and Securing the Open Internet" Order. This order sought to reinstate "net neutrality" rules, which would regulate broadband internet service providers (ISPs) as common carriers under Title II of the Communications Act.

Here are the key points of the court's reasoning:

Overruling Chevron Deference: The court explicitly rejected the standard of deference to the FCC's interpretation of the Communications Act, as previously required by the Chevron doctrine. This deference was overruled by the Supreme Court's decision in Loper Bright Enterprises v. Raimondo. The court decided it must determine "the best reading of the statute" itself. Information Service vs. Telecommunications Service: The core of the ruling hinges on the distinction between "information services" and "telecommunications services," as defined in the Communications Act. The court found that broadband ISPs offer an "information service" because they provide consumers with the capability to access, retrieve, and utilize information via the internet (even though they don't create the content themselves). The court emphasized the importance of the "offering of a capability" language in the definition of an information service. The court rejected the FCC's argument that ISPs are merely conduits for data transmission (a "telecommunications service"). Mobile Broadband: The court also ruled that mobile broadband services (internet access via cellular networks) cannot be classified as a "commercial mobile service" under Title III of the Communications Act, and thus cannot be regulated in the same manner as traditional telephone services. The court determined that mobile broadband is not directly "interconnected with the public switched network" (i.e., the traditional telephone network) since it uses IP addresses, not the traditional 10-digit telephone system. Therefore it must be a "private mobile service," which is not subject to common carrier regulations. Historical Context: The court highlighted the historical understanding and the FCC's consistent interpretations before the 2015 change, noting that Internet access was generally considered an "information service" and that Congress intended to keep the internet free from significant regulation. Result: The court vacated the FCC's order, effectively ending its attempt to impose net neutrality regulations under Title II on internet providers. Potential Consequences

This ruling has significant potential consequences, including:

No Net Neutrality Regulation (for now): The immediate impact is the absence of federal net neutrality rules in the U.S. Broadband ISPs and mobile broadband providers will not be legally bound by the principles of net neutrality. This means: ISPs could potentially throttle or block traffic to certain websites or services. ISPs could potentially offer paid prioritization of some content over others. ISPs may also offer differing internet speeds for different plans, without the need to justify this to the FCC Impact on Consumers: Consumers could see: Higher costs if ISPs charge for preferred access to content providers. Slower speeds for some services if ISPs decide to prioritize others. Reduced choice if ISPs favor their own services over competitors. Impact on Edge Providers: Websites, platforms, and content creators could be affected by: Reduced reach if their content is throttled or blocked. Increased costs if they have to pay ISPs for priority access. Less innovation if startups or new platforms are unable to compete with established services. Uncertainty and Litigation: The future of net neutrality is uncertain, and further litigation is highly likely. The FCC could appeal to the Supreme Court, which could further influence the debate. Other attempts to regulate the Internet may arise, potentially from states, but could lead to more legal challenges. Political Ramifications: This decision may lead to legislative efforts to create new laws codifying net neutrality in the US, or at least to further clarification of the existing Telecommunications Act of 1996. Increased consolidation: Without Net Neutrality, it is likely that larger telecommunications providers, who can utilize their economies of scale, will be able to further dominate the market, reducing competition. In Summary

The Sixth Circuit's decision is a major blow to net neutrality proponents. It removes the current federal net neutrality regulations, and in doing so, it potentially gives more control over internet access to ISPs and mobile carriers. The long-term effects will depend on future legal challenges, legislative action, and market behavior. However, the decision is consistent with current Supreme Court precedent concerning judicial deference to agency interpretation of law. """

This. The ISPs can go back to prioritizing and pricing traffic based on their own commercial preferences. Thankfully, I have Starlink as my ISP.

Thanks to Loper Bright, we finally have certainty as to what the Telecommunications Act of 1996 actually means.

By way of background, the Obama administration first classified broadband providers as telecommunications services subject to common-carrier regulation under Title II in 2015. The FCC reversed itself under Trump, and then during the Biden administration changed its mind yet again. The law never changed.

Each time, the courts deferred to the agency's interpretation as "reasonable", despite the fact that the interpretations were completely inconsistent. There is a single right answer: either the law classifies broadband carriers as offering telecommunications services or information services.

Today, for the first time, a court has actually read the law[0] and concluded that broadband carriers offer information services, not telecommunications services. If that's not the policy result Congress wanted, then Congress can change the law instead of letting the President change his mind every 4 years.

[0] https://www.opn.ca6.uscourts.gov/opinions.pdf/25a0002p-06.pd...

Even this court opinion makes the same stupid mistake of misunderstanding what an ISP does in their attempt to further define what an information service is.

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

Hacker News manipulates the data you put into the text box to post that comment into the list of comments it serves to me. My ISP absolutely did not in any way manipulate a single bit of that data Hacker News sent as a reply to me when I requested to Hacker News, not my ISP for that comment data.

So even with this opinion's simplified standard of what an information service is, ISPs absolutely fail to meet this standard.

Its astounding to me people can actually think an ISP is an "information service" under the 1996 definition.

And before you suggest "well the ISP probably did some other weird stuff inside their networks to actually transit those packets to you", the 1996 definition carves out that just doing the things needed to be a telecommunications provider does not make you an information service provider.

> 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.

https://www.congress.gov/104/plaws/publ104/PLAW-104publ104.p...

For what it's worth, you're making a common parlance argument against statutory interpretation. Every word in the statute counts, and here it appears to have turned on the definition of an information service as something that offers a capability, whether or not its core function involves using that capability, as well as usage of the term "information service" elsewhere in federal law that clearly included ISPs.

> you're making a common parlance argument against statutory interpretation

No, I included the actual text of the law of what an information service provider is in another comment and I'm using the test this opinion came up with. I'm not making up my own definition.

Please tell me how my ISP does this, as this is what an "information service" is under the '96 law.

"generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications"

They don't generate it, they don't really acquire it (they don't know what my query is, its encrypted), they don't store it, they don't transform it (it's encrypted), they don't process it (it's encrypted), they don't actually retrieve it (it's not on their servers or their drives or whatever), they don't utilize it (it's encrypted), and they're not the one making it available or not. What part of what an ISP does involve any of that?!

Please tell me how my ISP is manipulating the data we're posting and accessing through this comment section. Please tell me how that becomes an information service.

> as well as usage of the term "information service" elsewhere in federal law that clearly included ISPs

It doesn't unless you're severely corrupt, incompetent, or unable to read English at least from the few times I read the '96 act.

Starting on page 12 of the decision you're citing, and in very tedious detail, the appeals court rebuts you.

I'm not even saying you're wrong, I'm saying that the plain English meanings of sentences do not always control in statutory analysis. I just helped take a case to the Illinois Supreme Court, and lost there, over a similar issue. My definition is better! But I respect the legal process that produced a conflicting, controlling definition.

Its still stupid and corrupt argument that in no way refutes my point. The ISP doesn't offer the capability to watch Netflix. If Netflix decided to shut down tomorrow the ISP has no say in it. If Hacker News banned me the ISP has no part of it. The ISP doesn't control it; they don't offer anything but the ability for me to "call" the HN server and ask for the content.

If ISPs are considered "offering the capability", then old phone systems were also not telecommunications providers because they offered the capability to call Moviefone or time and weather providers or modems or whatever, and then absolutely nobody is a telecommunications provider. It's a stupid, ignorant, and illogical opinion to have.

My phone isn't a pizza delivery service. The court is saying it is.

> the plain English meanings of sentences do not always control in statutory analysis

I'm aware, and that's why I'm using their definitions in the law and their own writings in their opinions.

> But I respect the legal process

I don't respect these corrupt processes of revolving door industry people pushing these stupid illogical and incorrect ideas.

Even this opinion which I'll requote again here would point to an ISP absolutely not, in any way, be an information service.

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

This isn't my own definition, this isn't some common parlance, this is the definition the court gave me.

The court is analyzing the statutes comprising the core of federal telecommunications regulation, and seems in effect to be finding that, e.g., an OC-192 link between two points is "telecommunications", and the facilities needed to use those links to find and retrieve content over the Internet is "information". It's not the definition I'd prefer, but it's hard for me to see how it's "corrupt".

later

Note that the "Definitions" section of the Telecommunications Act (section in question) refers to the term "Internet" in only 3 places, all of them about services running on top of telecommunications providers.

> facilities needed to use those links to find and retrieve content

I'm not using the ISP to find and retrieve the content though. They don't understand the queries I'm actually doing, they don't know what information I'm looking for. All that is encrypted noise to their perspective. Nothing they do manipulates the data or assists in the query for information except to pass along packets to a destination.

If my ISP disappeared tomorrow Netflix would still work. Hacker News would still be there. How does my ISP do anything about making those things available outside of being the same thing as a phone line calling a library?

> it's hard for me to see how it's "corrupt".

Because it's the logic industry lobbyists project and is completely illogical past that understanding.

Relying on that logic, the court could come back and say "Netflix could cease to exist, but Breaking Bad Season 2 would continue to exist; does that make Netflix a telecommunications provider?"

I think one sane way to look at this is that the most reasonable way to look at the concepts of "telecommunications" and "information" are different in 2024 than they were in 1996, and the 1996 interpretation will control.

Later

I didn't see that bit about lobbying in your original comment, but you get that the "other side" of this issue has even more powerful lobbyists, right? Google alone is an order of magnitude more valuable than Verizon and AT&T combined.

It's corrupt because they gave us an obvious test:

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

And then completely ignored it for $reasons.

> does that make Netflix a telecommunications provider?

This really makes it hard for me to take your arguments as good faith. Nowhere in common parlance definitions, legal definitions, or court opinions would make Netflix a telecommunications company. You don't even give one here.

> but you get that the "other side" of this issue has even more powerful lobbyists

Yeah but one side is ignoring the simple tests they themselves come up with while the other actually relies on the plain language laid out in the actual law instead of mental pretzels to make an inconsistent and illogical position.

I'm not sure relegating all of statutory interpretation to "$reasons", over applying a common-parlance 2024 interpretation to a 1996 statute, is as forceful an argument as you think it is. Either way: I'm at a loss for why you think the ISP lobbyists are more powerful than their opponents here, since their opponents outgun them 40-to-1.

> I'm at a loss for why you think the ISP lobbyists are more powerful than their opponents here

Because despite every definition in the law and past opinions and the test they just came up with there's practically zero logic in the outcome here.

> over applying a common-parlance

Now I know you're not arguing in good faith. I've consistently cited the statutory definitions. I'm not using common parlance in the slightest. I'm using the actual law and their own goddamn tests.

How is my ISP modifying the data I'm posting here in the slightest, in any definition whether that be statutory or common parlance? You've still failed to answer this basic test just like how the courts failed to do so in their opinion.

You’re citing a law that is about allowing the RBOCs to again provide local phone service as evidence of legislative intent around regulating ISPs. None of this is as straightforward as you’d like it to be.

ISPs are the splitting image of if not literally the same people as the RBOCs. They do essentially the exact same thing RBOCs did in '96 today. In '96 "give this signal to 456-7890", today I say "give this packet to 45.67.89.0.

Around '96, what people thought of as ISPs (CompuServ, Prodigy, AOL, etc) were the modern Googles and Netflix and Spotify and Hacker News. Now ISPs are far more like the RBOCs, managing the lines and handling the "switching" and enabling the box at my home to talk to the box at Hacker News.

Back then, AOL was my ISP. They modified my query for a keyword to give me informaation. This was on top of the lines SBC managed. Today, AT&T manages the lines I use to punch into a search engine to retrieve information. What is AT&Ts role today more like, AOLs or SBC? Think for yourself for two seconds on this one! It's an easy answer!

If anything, you throwing RBOCs into this strengthens the argument for reclassification of ISPs as telecommunications providers instead of information services. It's illogical to see otherwise.

Finally let me requote the standard this fucking court gave us and you tell me how this opinion makes any sense outside of just consistently saying "cOmMoN ParLaNcE" as some shield that prevents you from using your actual brain to understand words on the law.

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

How is my ISP manipulating this data, right here, right now?! Please answer this!

I was out at dinner and couldn't respond to this, but, and I'm sorry about this, my response to this last comment is that you're not actually responding to anything I said. You feel like the Telecommunications Act of 1996 should have, in spirit if not in black letters, established an authority for the FCC to enforce "net neutrality". Well, I was there in 1996, literally operating a large ISP, and I can tell you: no, it did not. What the Telecommunications Act did was give my ISP access to dial-up POPs all over the Chicagoland area with a single ISDN PRI. It was about deregulating phone service. It had practically nothing to do with the Internet.

> you're not actually responding to anything I said

Projection to the highest degree. I've directly asked you a question four times here; you have never addressed it.

> literally operating a large ISP,

No wonder you can't smell the corruption and the mental pretzels don't bother you.

I'm not arguing about what the law did in 1996. I'm not even fully arguing what an ISP was or a telecommunications provider was in 1996. I'm just asking you to take the words as written in the law, take what an ISP functionally is today, and use an ounce of your own logic and reading comprehension (please!), see which of the two buckets it logically belongs in, and then tell me why.

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

Please, tell me how an ISP is manipulating the information I'm sending outside of doing things to manage a telecommunications service. Please. I'm begging you.

You conceded this argument upthread, so I think we can wrap this up here.

Can you (or the appeals court) specifically identify what information service capabilities ISPs are offering that keep them from being classified as telecommunications providers? With what protocols or software would I get my ISP to "generate, process, retrieve, or otherwise manipulate information"? Surely there's a concrete example of this hypothetical "offering a capability". Discussing it purely in the abstract is clearly not working to convince people the ruling is appropriately grounded in both the law and the technological realities of what ISPs actually do.

Once we've identified concrete examples of information-manipulation capabilities offered by ISPs, then we can see whether any of them survive the exclusion of "use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service".

We can read the brief from the petitioners starting on p 32 of https://storage.courtlistener.com/recap/gov.uscourts.ca6.151...

Looking at p 36, two information services offered are caching and DNS.

How many people do you know pick their ISP because they prefer their DNS services?

Phone companies are information services because they mailed you a shitty phone book!

What an absolute bullshit argument.

Back when the law was written, people actually used the services offered by their ISP and they were differentiating services for their subscribers. CompuServ newsgroups, Prodigy message boards, people generally used their ISP provided email services as their primary email, many services offered their own portals for their customers which were quite popular (remember AOL keywords?).

None of that is true anymore. Nobody gives a shit about some landing page portal the ISP makes anymore, if they even bother reskinning Yahoo.

ISPs are information services because in the context of the Telecommunications Act of 1996 that's what the Internet was, an information service built on top of telecommunication services. If you passed a Telecommunications Act of 2025, it would be different, but that act has not in fact passed, and what the court is fixated on is what Congress actually authorized.

> ISPs are information services because in the context of the Telecommunications Act of 1996 that's what the Internet was, an information service built on top of telecommunication services.

The Telecommunications Act of 1996 did not define what ISPs are. It defined "information services" and "telecommunication services". Then and now, those definitions are what matter, and companies today need to be classified under those definitions with no legal weight given to whether people today or in 1996 would call any given company an ISP based on a vague colloquial notion of what ISP means—because whether or not something is "an ISP" doesn't answer the question of whether it meets the definitions of an "information service" or a "telecommunication service".

I'm sorry, I've read this multiple times and I still don't understand how you're reaching the conclusion that lawmakers in 1996 would have intended ISPs to be considered basic telecommunication service providers as opposed to "information services" given the Telecommunications Act rubric.

But I also think everyone on this thread has laid out their cases in enough detail that we're mostly moving in circles now.

I think maybe you're just ignoring half of what I'm saying. I think today's ISPs are offering telecommunications services (by virtue of owning the last-mile physical infrastructure), usually with some information services on top. I simply refuse to pretend that putting both under the same price tag makes the telecommunications service stop existing in the eyes of the law.

You wish I was making a wrong determination of mutually-exclusive A vs B, when I'm arguing for A+B over B with magically disappearing A.

I understand what you're saying. I even agree with it: I think, in 2025, that is clearly a more sensible target for legislation†; that's what I'd expect a court to say those words meant, if they were written today. But they weren't written today. They were written in 1996, in the context of a bill deregulating local POTS phone service, and the 1996 context is the one the statute will be read in --- especially since the statute doesn't explicitly authorize any of what the FCC purported to do here!

One reason I'm pretty confident with my argument here is that I'm simply restating what the appeals court decision actually says; as passionately as you might want to argue to the contrary, the FCC's interpretation of the statute has been overturned. The Supreme Court seems extremely unlikely to pick this up, not least since the court already ruled in this direction in Brand X.

† Not that I think that would be good legislation! I think all of this is a bit silly.

> that is clearly a more sensible target for legislation†; that's what I'd expect a court to say those words meant, if they were written today.

You're acting like because ISPs of 1996 fit the definition of an information service in 1996 every org claiming to be an ISP should always be classified as an information service even if their roles in society radically changed.

If a law targets people aged 21 and up, and several years passed, you don't then say "well back when this law was written you weren't 21 so you somehow aren't in this definition", no, you look at the language of the law and see how it applies to the people today.

In that same vein we should look at what an ISP does today, look at the words in the law as written, and decide which bucket they belong in: information service or telecommunications service. And they really don't do a damn thing like what an ISP did as an information service did in 1996. And they're also now largely those RBOCs that were targeted as telecommunications services and have the same market complications as they did back then.

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

In 1996 I'd agree that people subscribed to a particular ISP because of how they manipulated data. These days nobody uses any of the information services provided by an ISP, they're entirely vestigial and ignored. Nobody cares about the ISPs portal or their email services or whatever and they shut down their newsgroups and what not ages ago. All they use their ISP for is to telecommunicate, not to manipulate their data.

Exactly.

So if a company that on paper was GTE started selling hot dogs from a cart they wouldn't be subject to food regulations right? Because they're an information service, not a food vendor!

Or maybe we should apply the laws as they are today to the actions organizations are today instead of imaging what they were in '96 and thinking they've never changed.

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

I will forever respond to your comments with this quote until you really answer how an ISP substantively manipulated my POST request to Hacker News. This is the standard the court gave us. Tell me how my ISP is an information service here.

There aren't Internet neutrality regulations. If there was a statute requiring net neutrality, you would have a point. The FCC invented their regulations out of whole cloth, and they were never granted that authority by Congress, which is why those regulations were just overturned. Yes: if AT&T, Bell Atlantic, Comcast, the Longmont Colorado municipal fiber network, Moviephone, or the Chicago Public Library decided to start selling hot dogs from a cart, they would be subject to food regulations, because those exist.

Since the FCC's entire premise for coming up with neutrality regulations was that they were granted this authority by the text of the Telecommunications Act, it matters a great deal that the Act never mentions ISPs at all, and chiefly concerns itself with deregulation of local POTS phone service.

This strategy you have of deciding that ISPs are bad and Net Neutrality is good and then working backwards to how the law should work is always, always going to disappoint you.

DNS would seem to fall squarely under the "use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service" exclusion. The brief seems to have invented a requirement that the exclusion only apply to inward-facing controls and not user-facing features. But I can't see how the brief's reasoning doesn't also apply to the service of mapping a phone number down to the real call routing necessary to connect a long-distance call; is that now an information service that renders POTS not a telecommunications system? Dialing an outgoing call is clearly "managing, controlling, and operating" the phone system, but is not purely internal or inward-facing, and usually involves making stuff happen on the equipment of at least two phone companies (while the brief insists "No ISP would allow unsupervised third parties to “manage[], control, or operat[e]” its system", as part of inventing another requirement that the management/controlling/operating capabilities be used by ISPs rather than by end users).

The caching to which the brief refers is operating CDN nodes. This is obviously something many ISPs don't do at all, and thus is obviously not a key part of being an ISP. It's a complementary service, where ISPs are in competition with other colocation providers. It's also extremely bad public policy to enshrine CDN services as a core part of an ISP's job, because shenanigans with CDNs are one of the major motivating factors for having net neutrality regulations in the first place. And allowing ISPs to escape regulation of their packet-transit services by tying them with value-add services is horrible; that behavior needs to be discouraged using antitrust regulation, not incentivized by the courts. We went through over a decade where bundling internet service with email service gave ISPs unfair leverage to lock-in their customers (by retaining control over their online identities) before third-party email services like Hotmail and GMail were able to erode that power and give consumers more freedom to leave their ISP.

Did the court actually specifically rule on either of these two arguments?

It's like arguing DTMF is a user facing feature so phone services aren't telecommunications.

No, the court never reaches these because the court holds that “a provider need only offer the ‘capability’ of manipulating information (in the ways recited in that subsection) to offer an ‘information service’ under § 153(24)” and “Even under the FCC's narrower interpretation of ‘capability,’ Broadband Internet Access Providers allow users, at minimum, to ‘retrieve’ information stored elsewhere.”

So even allowing users the capability of retrieving information is sufficient because the definition of an information service is “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.”

But an ISP, as it's core offering, doesn't offer me the capability to retrieve information. It gives me the ability to send some packets and maybe get a response. It is the information services like Hacker News that actually gives me the capability to post a comment and read replies.

One might as well argue the power company is an information service, since they offer me the capability to run the modem and power my computer.

It really sounds like what you disagree with most of all is Loper Bright Enterprises vs. Raimondo. Fair enough! But: your side lost that case.

Loper Bright is only relevant here as the case that opened the door for the appeals court to more easily overturn the FCC. The case itself was not related to the FCC and isn't the source of any of the absurdity in this appeals court ruling.

Yes: that's what Loper Bright does. In the absence of explicit statutory language to the contrary, the FCC can no longer assert its interpretation of the spirit of a law about allowing RBOCs to once again provide local POTS phone service as a broad mandate to regulate the Internet.

The reasoning you're using here doesn't make much sense, to me, in light of the statute. The Telecommunications Act of 1996 had as its primary purpose the deregulation of the RBOCs and the provision of local (last-mile) POTS service. To the Telecommunications Act, the Internet is firmly something you would build on top of a telecommunications service; the entire Internet is an information service. That doesn't make any sense to you today because you're ~30 years removed from the time of Prodigy, CompuServe, and AOL, but that's the context of the statute.

The statute, I'll remind you, doesn't exist to establish whether ISPs can prefer one streamer over another. "Streamers" are a concept that wasn't legible to the authors of the Telecommunications Act.

The reason this definition matters is that it's the hinge point on which the FCC claimed authority to regulate --- to make up its own laws, based on the opinions of its own executive appointees, with no Congressional consensus behind it --- ISPs. In the era of Chevron Deference, court precedent was that in the face of ambiguity, the courts were to trust the unelected administrative agencies in their interpretation of statutes. That was struck down, so courts now actually get to look at the context of the Telecommunications Act and see: no, this was not an act that had "net neutrality" in mind.

> the Internet is firmly something you would build on top of a telecommunications service; the entire Internet is an information service.

I think the key assumption you're making here is that anything layered on top of a telecommunications service must be an information service, so if "telecommunications service" can be defined narrowly enough, then maybe the entire Internet (endpoints and transit) can be construed as "information service".

But that's not how the two legal definitions are related. Information services must have an underlying telecommunications service, but I don't see where the law prohibits a telecommunications service from being layered atop another telecommunications service (which POTS as an amalgamation of numerous providers seems to be, especially in the case of MVNOs, or undersea cable operators selling a slice of their bandwidth to phone companies).

I also don't see where the definitions require that the line between telecommunications services and information services must be drawn at a low enough layer that IP transit exists solely above the line. And certainly a company who operates the lowest physical layer must be operating at least partially on the "telecommunications" side of the line.

I think you have reached a level of abstraction where the courts, post-Chevron, were not going to take the FCC's word for it. I also think, putting my brain back into 1996-Thomas mode (still eating frozen pizzas, still enjoying the music of Front Line Assembly) that fetching a web page is, by the logic of the Act, fundamentally the same thing as making a request of Prodigy or AOL. And I'm telling you this as someone (again) who ran an ISP in 1996.

I can't say enough how much the Telecommunications Act was not about this issue. This does not feel like a sufficiently load-bearing piece of legislative intent to hang such an intrusive regulatory framework on! Based solely on this definition, in a statute that pretty clearly saw the Internet as a use case for telecommunications, the FCC gets to regulate all Internet providers? What did you think was going to happen?

> that fetching a web page is, by the logic of the Act, fundamentally the same thing as making a request of Prodigy or AOL.

That's not actually in dispute. I fully agree with you on this point.

You're just being silly by pretending that the fact that AOL was called an ISP back then means that everything called an ISP now must be regulated the same way, when "ISP" isn't even the legally-relevant terminology.

> in a statute that pretty clearly saw the Internet as a use case for telecommunications

To the extent that "the Internet" can be seen as a "use case" in itself and not just an enabler of other use cases, it must be considered to be the packet network plus services atop it like email, WWW, etc.

I'm not saying AOL was considered an ISP back in 1996; I don't really think it was. I'm saying the Internet as a concept was not considered a raw telecommunications service. The Internet was something the Act wanted to force telecommunications providers to allow; its concern was much more that MCI and AT&T might try to suppress the Internet in favor of some MCI- or AT&T-specific information services.

For as much tsuris as this issue has caused on this thread, I don't think there's much dispute about this, legally; the issue made it all the way to the Supreme Court, which ruled on it; only a particularly reach-y application of Chevron made the interpretation you want viable. Chevron is dead now, and so, too, mechanically, is administratively-enforced "net neutrality".

> Internet as a concept was not considered a raw telecommunications service

You're making a common parlance argument against statutory interpretation. Go with what the law actually says an information service is versus a telecommunications service.

> its concern was much more that MCI and AT&T might try to suppress the Internet in favor of some MCI- or AT&T-specific information services.

This is exactly the concern that NN proponents have today. It's the same RBOCs of yore wearing a mask and arguing they're something they aren't. And That by controlling the pipes (many of which have no viable or slim competition) the ISPs can (and have tried) to push certain information services they own and operate or have financial deals with over others with unequal billing and network management policies.

What you're making is an argument that Congress should pass a law regulating the ISPs as if they were RBOCs†. The Telecommunications Act of 1996 refers specifically to the "Bell Operating Companies", and does so because of the antitrust-enforced divestment of those very specific companies from AT&T. They're not an abstract concept in the law, and the FCC can't just say "it would make sense if the law was extended to ISPs too". That's Congress's job.

† or something; the 1996 Act actually de-regulates the RBOCs.

> What you're making is an argument that Congress should pass a law regulating the ISPs as if they were RBOCs

No. Your current bags of cash ISP position makes you incapable of reading the law and see there are no "ISPs" or "RBOCs" in the Communications Act of '96. For all the times you've harked on me about "CoMmOnPaRlaNCe", you've completely failed to actually read the law and read the court opinions and apply an ounce of clear, open, honest understanding to them.

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

The court here gave us a very obvious test, one you constantly ignore here. Tell me how my ISP is manipulating my information outside of being a common carrier for our conversation here. You cant! You fucking can't! I've given you many chances, and you've failed every time!

I guess you didn't understand it, let me repeat it:

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

This is the court's opinion.

Don't apply your own common parlance understanding of what an ISP is. Don't apply some twisted prezel-brained logic of what "provides access to". Tell me how my ISP lives up to the standard this court just gave us for what an information service is.

But you won't, you'll just ignore this and continue to count those dollars the ISPs are giving you and wonder where this corruption I talk about is.

I don't know what my "bags of cash" position is (I haven't worked for an ISP in over 25 years) but no, there obviously are RBOCs in the Act; you're looking for the search term "Bell Operating Company". Sorry to disappoint you on this.

I'm sad you continue you fail to answer a basic question asked half a dozen times.

That's a funny way of saying "sorry, I looked at the statute, and you're right, it repeatedly discusses the Bell Operating Companies", but: apology accepted.

> In short, an “information service” manipulates data, while a “telecommunications service” does not.

To the Act, the entire Internet is an information service. Sorry! 1996 sucked ass.

> That doesn't make any sense to you today because you're ~30 years removed from the time of Prodigy, CompuServe, and AOL, but that's the context of the statute.

I'm not 30 years removed from it. I grew up in it. We picked Prodigy at the time on our Tandy 1000 because of the services Prodigy directly offered to their subscribers. We liked their message boards. They had a Sesame Street area in their application that would refresh every few days with new content.

This is entirely unlike the service I get with my ISP today. I chose them because they're the only ones with fiber lines to my house. Sure sounds like back in the day when SBC was the only line to my house now doesn't it? Funny too because the box that fiber line runs to has a RBOC label on it and the manholes for the larger service conduits have their old RBOC name still. One might think they're just the RBOC doing the same RBOC things they used to do.

Huh, I wonder which kind of service this ISP of today should be regulated as. Like the old SBC or Prodigy?

> My ISP absolutely did not in any way manipulate a single bit of that data

I'm certainly nitpicking here, but surely they modify the IP TTL field? And probably reset the DSCP bits too? And quite likely - unless you're lucky to have a globally routeable IPv4 address, or living in the IPv6-only future - perform NAT on your traffic?

And I'm 99.9999% sure they shape/rate-limit your traffic. Buffering and/or dropping packets is almost inevitable for any larger telecommunication service.

Nonetheless, it's not an information service, of course. Still a pipe, just not entirely dumb one.

> 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.

Need me to say it again?

> 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.

NAT, TTL, shaping, etc are all a part of the management of a telecommunications service in the same way managing long distance prefixes and exchanges or dead peer detection or whatever were to the old phone systems.

We can read the brief from the petitioners for the (apparently winning) response to this on p 38 of https://storage.courtlistener.com/recap/gov.uscourts.ca6.151...

“That exception focuses on inward-facing controls. But ISPs do not use DNS or caching to ‘manage, control, or operate’ their own purported ‘telecommunications system’ or ‘telecommunications service.’ Both DNS and caching provide a user-facing functionality.”

Petitioners can write whatever they want to write. They can write 2+2=22 and I guess you'd believe it. What a dumb argument to parrot.

Do you choose your ISP based on how good their DNS services are? No? Doesn't seem like DNS is the thing people are signing up for but simply a way for the service to function.

Oh boy, I can't wait to get home to hop on my Comcast service so I can go query their DNS! It's what the family does on a Thursday evening. So riveting!

In the end DNS isn't really the information people care about and actually largely is used for managing telecommunications service.

I can see that you are extremely emotionally invested in this decision for some reason, but there’s no need to resort to these type of hysterical personal attacks. I have no horse in this race, I am just providing the apparently persuasive (and winning) counter to your argument.

I don't see how the court's interpretation provides more certainty than the executive branch's (via the FCC); it's one interpretation or another.

Also, the executive branch has domain experts who understand telecommunications and long experience develping and implementing policy; the court is an outsider trying to figure it out. I'd rather have the experts doing the work.

The courts have been especially unpredictable recently, widely perceived to act on politics rather than the law. The Supreme Court seems to fabricate law on a regular basis. In this case, the executive has virtually unlimited power - beyond legal restraint or criminal sanction - in its 'core functions', but regulating powerful GOP constituents is a step too far.

I think you get more certainty from the court interpretation because it's final. The executive branch can't simply overrule it and say "well, we disagree, the FCC rules stand".

Good point. When you put it that way, perhaps the reduced democratic power over the situation is a drawback.

Also, to clarify (and as I'm sure you know), the executive can't arbitrarily change regulatory rules. A whole process is required and non-arbitrariness is a rule (of courts or the law).

This is strictly increased democratic power over the situation.

What do you mean?

The judicial branch is much less democratic than the executive branch.

If you refer to the 'regulation is by unelected bureaucrats' argument, it's certainly widely stated but it's BS: With only ~540 elected people in Washington, almost every decision and act by people who weren't elected. Government would immediately cease to function if those 540 had to do everything, and democracy would be impossible. Democracy is people delegated specific powers by elected officials, and that includes regulators.

The democratic credentials of courts and executive branch regulators are an interesting comparison: Both have their members appointed by the executive and confirmed by the legislature. Elected officials insulate both from the elected officials' own interference.

The main difference is how thick that insulation is: Executive branch regulators are intended to change authority with each president and to generally follow the president's preferences to some degree, within the law and in service to the American people (that is, they serve the people and not the president). The regulators are insulated by laws which theoretically could change any day, but generally don't. Judicial branch appointees, the judges, are for life, are expected to act completely independently of the president who appointed them, and they are insulated by the Constitution, which is much harder to change.

The outcome of this case pushes power away from the executive, and towards the legislature.

It doesn't change the legislature's power; they were and still are free to write detailed regulations into law. It just shifted the power in cases of less-specific regulations away from the executive and to the courts. The courts are every bit as capable as the executive of making tortured interpretations of law, and to some extent are required to do so by stare decisis.

Allowing the executive branch to make new laws does, in fact, take power from the legislative branch!

Is the legislature more democratic than the executive?

Also, what does that mean in reality? The 538 elected legislators can't regulate everything (or anything), of course. Whatever they do, it will require delegating power, as I said, to functionaries. And in any case, implementing laws and policy is an executive branch function - for the legislature to do it (beyond writing law) would be a violation of separation of powers.

Yes, it is.

I am so much wiser after reading your comment!

Nobody elected the FCC commissioners and staff making these rules. Virtually every legislator is elected.

That was addressed earlier in the conversation, multiple times.

I don't know if it was "addressed", but it couldn't have been "rebutted", because this is basically axiomatic.

Loper doesn't overturn specific delegations of power to regulators; doing so would basically neuter the entire executive branch. What it says is that when there's ambiguity about a statute --- such as when a telecommunications bill that barely mentions the Internet and appears to view it in approximately the same light as TMBG's "Dial-a-Song" is used as the basis for sweeping Internet regulation --- the courts are no longer required to take the regulator's word for it.

There's nothing wrong with delegations of power. They just need to be specific; they should represent a legibly expressed intent of the democratically elected legislative branch, which is the branch that the framers created specifically to craft legislation.

> this is basically axiomatic

And what I said is 'self-evident' to me! Why even bother telling it to anyone else?

The legislature, and in particular the House, being more democratic than the executive is a bedrock principle of American democracy. Read the Federalist Papers if you want a full theoretical grounding and justification of why from the framers' perspective.

Thank you. Might you give us a summary, to tide us over until we read the entire Federalist Papers? :)

Under the OG Constitution, the House was the only branch of government directly elected by the people, and therefore most accountable to them. The terms were short (biannual) so that legislators would regularly be held accountable and easy to replace. A lot of the other machinery of government was put in place as a check on all this democracy, so that momentary passions and demagoguery couldn't bring down the government through a kind of mob rule.

The founders further recognized the special democratic legitimacy of the House by giving it the sole power to impeach and to propose legislation that spent money.

You can fairly characterize the framers' attitude as "the democracy is coming from inside the House", both for good and ill. The strong presidency we know is more a function of precedent (set by Washington, Adams and especially Jackson) than an explicit feature of the Constitution. Whether Congress or the executive would have primacy was an open question for the first few decades of the country's history.

That's a great point about the original House and Senate; I agree. I don't know that it makes the president less democratic than the House. I suppose presidents weren't directly elected either, via the electoral college, etc.

Everything else aside, and this is kind of unrelated to the points 'idlewords is making, but: in modern political theory the big problem with the executive doing this stuff vs. the executive branch is that the regulatory process in the executive branch is driven almost entirely by a combination of unelected appointees and unelected career staffers, usually guided by a bureaucratic public comment hearing process that provides just a faint approximation of representation.

That's why you'd want Congress to do this and not the FCC, because Congress is directly representative, and decisions inside the FCC are overwhelmingly made by people nobody elected; the best you can say is that some of the highest-ranking of those people are traceable to appointments by an elected official.

The flip side of this, of course, is that Congress is gridlocked and is unlikely to pass sweeping new regulations of any sort. That's a fair point! But I think I side with the court on the notion that you gotta fix that problem, rather than have the FCC pretend it can step in for Congress when Congress isn't moving fast enough.

Again (and again), that ignores the fundamental fact of governing a country of 340 million with only 540 elected officials. Whether they are elected to the legislature or the executive, the only solution is delegating the vast majority of decisions and actions.

How else do you propose solving that problem?

I have no objection at all to Congress delegating to the FCC the power to enact sweeping Internet regulations. The issue is that they have not yet done that.

OK, then our only possible disagreement is whether they have delegated it.

Sure. It seems pretty clear to me that they have not; the Supreme Court said so back in 2005 (but Chevron Deference mooted it), and the Appeals Court just said so last week (now that Chevron Deference is dead).

The courts could possibly be carrying out an anti-regulatory political agenda. I do mean "possibly"; not everything they do is politically driven and sometimes the politically-driven decisions coincidentally align with reasonable outcomes.

Plenty of serious people thought the FCC actions and Chevron Deference were legally fine. Plenty did not. (My unstudied observation of the latter is that it was the same people who always oppose all regulation in every way possible, but I'm not really sure of that.)

If someone just takes one side's argument, doesn't mention the other side, and says that makes it clear, doesn't that tell us only the political preferences of speaker and their desire to push them?

I haven't read enough on it to know. I could believe the FCC overstepped their authority. It is interesting that SCOTUS gives the president the effective authority to break laws, but not regulate rich people. Perhaps the president should just break this law?

No. At any rate, if you're hanging your hat on a return of something like Chevron Deference, it's not going to happen. The FCC's authority to regulate the Internet was a controversial reach even before the courts decided they didn't have to take the word of regulators for them. For my part, as part of the opposition of the incoming administration, I'm just fine with the idea that their appointees --- some of whom will have terms extending past this administration --- have only the specific authority delegated to them by Congress, which my side will hopefully retake in just a couple years.

I think we can probably wrap this up here. We don't need to convince each other of anything.

The point isn't to convince each other. Have a good weekend!

> ... I'm just fine with the idea that their appointees --- some of whom will have terms extending past this administration --- have only the specific authority delegated to them by Congress, which my side will hopefully retake in just a couple years.

Yes, it's amazing that people overlook the goose and gander principle. The Senate filibuster is a bigger example - the Dems talked about eliminating it in the middle of an election where they were likely to lose the Senate.

> The flip side of this, of course, is that Congress is gridlocked and is unlikely to pass sweeping new regulations of any sort. That's a fair point! But I think I side with the court on the notion that you gotta fix that problem

That's the Assume a Can Opener problem, given that we're locked into dysfunction with things like partisan gerrymandering, primary voting dominated by party extremes, and our first-past-the-post winner-take-all system — to say nothing of First-Amendment idolatry, as manifested in Citizens United, that has resulted in Second Gilded Age oligarchs being able to dominate the discourse among low-information voters.

I get it, but the response can't be for the executive branch to just step in and become the legislative branch.

Half a loaf ....

Local politics have colored a lot of my views on these things, to where I'm deeply suspicious of faux-democratic processes like the notice-and-rulemaking regulatory process of the federal government. Nobody elected the people making these decisions! These are awfully big decisions for unelected appointees to be making.

> Nobody elected the people making these decisions! These are awfully big decisions for unelected appointees to be making.

Agency costs [0] are everywhere, so it's a question of the lesser of two (or more) evils: For most issues, if the legislature has even arguably delegated authority to unelected appointees (even, or even especially, to "politicals"), then I'd usually rather have those appointees making the decisions, subject to being overruled if they go too far. [1]

Otherwise, the problems just fester: Too many elected officials are terrified of offending oligarchical special interests with big checkbooks (and/or big megaphones), who are increasingly willing to punish deviance by stirring up extremist zealots in the parties' primary elections and low-information voters [2] in the general election.

[0] https://en.wikipedia.org/wiki/Principal%E2%80%93agent_proble...

[1] Chevron deference was quite workable. The Supreme Court's recent Loper Bright decision strikes me as another brazen, Marbury-style bootstrap by life-tenured judges who ought to think of themselves as humble hired help, but who imagine they should have authority without accountability. The "least-dangerous branch"? Not anymore. A "co-equal branch"? Talk about noses pressed up against the glass; there's a reason the Constitution talks about the federal judiciary in Article III, not Article I (Congress) or Article II (the executive branch).

[2] Low-information voters shouldn't be mocked: Most of us have other things to do in life; we just want issues dealt with competently and "equitably" — I'd prefer a Rawlsian "veil of ignorance" approach [3] for just about everything — with due attention to externalities and resilience. Example: In Texas judicial elections, I'm a low-information voter even though I'm a lawyer: Unless I know about the candidates myself, I generally follow the Houston Chronicle editorial board's recommendations, because I have some confidence in the board's process — and I don't want to spend time "doing my own research."

[3] https://en.wikipedia.org/wiki/Original_position

It's good that we disagree on things! There are broad delegations of power to the regulatory state that I'm OK with; I'm not a Federalist conservative. But my primary political issue these days is housing, and broad regulatory authority is the natural predator of affordable housing developments (environmental review, historical preservation, zoning variance and plan commissions, public hearings, &c), and most legislative progress in legalizing housing takes the form of sharply curtailing the authority of regulators.

In this particular case: I don't really think there's even a fig leaf of the grant the FCC claims they have. We were both there at the time, and I think it's clear from the text of the law and from the attitudes of the time that Congress looked at the Internet, the entire Internet, the same way it looked at CompuServe --- as an information service accessed through telecommunications links. The Internet is too big a deal for an executive agency to simply manufacture its own authority, simply because Congress isn't moving fast enough on it.

(If it helps: I also think Net Neutrality is dumb. I wouldn't stomp my feet and say that a Congressional act authorizing FCC rulemaking to enforce it was illegitimate; it would just be a policy I disagree with. Fortunately for me, Congress hasn't enacted that policy.)

all the arguments pro isp ubderprovision here misses the point that they are a sanctioned monopoly, either on access to wires on the streets or wireless spectrum.

they are guaranteed a insane high profit because of the assured monopoly and presumed technology and capacity investments.

if you defend their "profit" by under provision you are extremely uneducated on the matter.

I don't think there's a chance of net neutrality happening in the US given the current political climate. Net neutrality is communism, literally. /s

It's a sad commentary that, because of how concentrated web traffic is today, net neutrality feels like an antiquated concern.

The idea that Google, Facebook, Amazon, etc. have made Net Neutrality irrelevant is ridiculous, and is a result of a directed campaign by ISPs to distract attention from them and onto these other companies.

With NN in place, there’s nothing at the network level that prevents a competitor to them from rising up. Without NN, ISPs can make deals to speed/slow/block traffic to different destinations, which would have a real effect on possible newcomers that challenge the incumbents.

> is a result of a directed campaign by ISPs to distract attention from them and onto these other companies.

I've come to this conclusion because NN is effectively dead at the link level, not the ISP level. Try posting a link to the web on any of the big social sites, and you'll be instantly downranked.

Whatever problem that is, it’s not Net Neutrality. NN is about ISPs being able to do things like sell different service levels, like package A includes access to Facebook and Google only, package B includes package A plus Instagram and Netflix, package C includes package B plus TikTok, etc. Or doing things like making their own video service while making Netflix unusably slow.

Not saying your issue also isn’t valid, but it can be addressed by market forces when enough people get sick of that type of behavior (like Twitter/X) and move to something else (like Bluesky). Most people don’t have any real choice between ISPs (through monopolies that have been granted to them for decades by local governments), and therefore there needs to be some additional legal protection against that type of behavior.

Trying to lump them both together under NN is part of the playbook that Big ISP has been using for years to muddy the issue.

Maybe I’m missing something, but this is a good thing, as it will finally allow us to fix this problem. Hear me out…

Net Neutrality was always very poorly defined from a delivery perspective in that it limited companies’ and consumers’ options.

What it should have done instead is define the word “Internet” and then say that if you advertise , say “100 Mbps Internet” speed that you cannot discriminate on any particular site or protocol by slowing or blocking.

This definition would allow telcos to offer generic internet, but then offer speed-ups to customers as options.

For instance, if you love Netflix, allow the telco to offer a higher level of service for Netflix connectivity. Or if you are a gamer, allow lower latency/higher bandwidth for things like Fortnite, etc.

I want my “internet” access to be unfettered, but I’m also willing to pay extra for service above that level for certain apps/sites.

Yes, this is simplified to fit a post on HN, but it seems the only rational way to regulate appropriately and simply, and most importantly, giving consumers what they actually want.

The concern is that a teleco can create an alternative and provide it for cheaper than competition. For example, Spectrum creates a Netflix, changes $20 dollars for it, then blockades Netflix behind a $20 'teleco' fee. Now your choices are $20 Spectrum-flix or $15+$20 Netflix.

No - I’m specifically saying they cannot do that.

Like I said - their internet service cannot block or slow down any site or app.

If they want to create their own streaming service and give you fast access to it, they can - but they cannot slow down anything else.

That’s why my rule works.

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