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Comment by granzymes | Hacker News Reader

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...

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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.

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.

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?

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.

> 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?

> 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.

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.

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

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.

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

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.

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.

> 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.

> 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.

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!

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.)

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?

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!

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