Re FCC tells court it has no “legal authority” to impose net neutrality rules

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Joe Touch <touch () strayalpha com>
> Date: October 15, 2018 13:26:39 JST
> To: David Jack Farber <dave () farber net>
> Cc: ip <ip () listbox com>
> Subject: Re: [IP] Re  FCC tells court it has no “legal authority” to impose net neutrality rules
>
> Hi, Dave,
>
> IANAL, but I do know strawman arguments when I see them. 
>
> For example:
>
> > Begin forwarded message:
> >
> > > From: Richard Bennett <richard () bennett com>
> > > Date: October 15, 2018 at 3:40:47 AM GMT+9
> > > To: Dave Farber <dave () farber net>
> > > Cc: ip <ip () listbox com>
> > > Subject: Re: [IP] Fwre  FCC tells court it has no “legal authority” to impose net neutrality rules
> > >
> > > The Big Irony that strikes me in this debate is that people who maintained for 40 years that the Internet was a 
> > > major, game-changing, revolutionary advance in networking are now saying: “Never mind, I was wrong, the Internet is 
> > > just another telephone network. Regulate your hearts out, appointed federal bureaucrats!”
>
> I’ve only maintained my small corner of that space for a much smaller period of time, but my position on this has 
> been consistent.
>
> > > Let’s think through the implications of the claim that DNS is just like 411 and therefore should be regulated under 
> > > Title II.
>
> Not what I said. I said that the FCC’s logic that claims that “the DNS is a service and it’s provided with Internet 
> connectivity, thus the latter is a service not merely communications” could as easily be applied to 411 and it would 
> result in the FCC not being able to regulate telephony either. 
>
> > > DNS is provided by Google, Cloudflare, and IBM.
>
> The DNS is two completely different things in this context:
>       a)- the DNS resolution (forward and reverse) of IP addresses assigned as part of receiving Internet connectivity
>       b)- DNS resolution of public services
>
> DNS provide by transit providers is (a), and an important part of their transit.
>
> DNS provided by non-transit providers is (b).
>
> > > Should these firms be regulated under Title II as well? 
>
> a) is like 411, and (IMO) like 411 can and should be regulated as part of telecommunications
> b) is more like the commercial versions of the yellow pages, which many different parties can (and have) published, 
> regulated in different ways (i.e., not as part of telecommunications)
>
> > > That would be problematic since Title II includes a lot of baggage in terms of price controls and privacy. 
> > > Specifically, it disallows the use of information collected in the course of operating the telecommunications 
> > > service for other purposes - such as ad targeting - without affirmative consent. Putting Google (and why not 
> > > Facebook while we’re at it, since they operate and extensive network?) under Title II means the end of ad-supported 
> > > web indexing. 
>
> If this was supposed to make be think “oh, the horror, we can’t accept that baggage”, then you did it wrong.
>
> I don’t think my *transit provider* has any business trying to monetize my access with ads without my consent. It’s 
> (to me) exactly like opening my mail or tapping my phone to track what to sell me next. 
>
> Note that this is distinct from content providers, which (like brick and mortar businesses) can track customers and 
> target ads.
>
> > > The FCC has regulated so-called dial-up ISPs as information services since the 1996 Telecommunications Act, and as 
> > > enhanced services before. Are we to believe that dial-up ISPs do some information processing magic that broadband 
> > > ISPs don’t do? If so, what would that be exactly?
>
> Historically, these dial-up services started as content providers (Prodigy, AOL, etc.), so that made sense.
>
> As dialup and broadband transitioned to transit, its regulation should have transited too (IMO).
>
> > > While many bloggers regurgitate the advocacy claim that the FCC’s 2017 Restoring Internet Freedom order disavowed 
> > > any and all authority to regulate ISPs (they usually say “broadband” but the issue is really "Internet service over 
> > > broadband”), a careful reading of the Order and the response to the challenge by Mozilla and other Silicon 
> > > Valley-friendly players shows that the FCC’s claim is much more narrow and specific. 
>
> FWIW, I was responding to the text in the cited article...
>
> > > It says Section 706 of the Act doesn’t give the FCC authority to run around enforcing rules that haven’t actually 
> > > been written down. The Obama era Title II order, you see, includes a “general conduct standard” that allows the FCC 
> > > to sanction practices that it deems objectionable even if they don’t violate the bans on blocking, throttling, and 
> > > Quality of Service for a fee specified in the order.   
> > >
> > > If you want some irony, read the RIF order or the FCC’s response alongside Section 706 and you’ll see that the 
> > > FCC’s preemption authority comes from Section 706. You’re not going to see that spelled out in the blogs.
> > >
> > > Law, like technology, can be complicated, so sometimes you need to consult primary sources.
>
> There are useful details here and we can indeed debate the way in which the orders were implemented and executed. 
> Regardless, we need to start with an opening position on whether we consider Internet access to be a common carrier 
> service (transit of information) or a content service - that determines what sections of the code apply.
>
> Although I appreciate many have hesitated to call the Internet “transit” rather than “content” — because of exactly 
> the baggage you mention earlier — IMO, that baggage might be the best way to handle things *exactly* because Internet 
> access *is* transit IMO. If we don’t like the baggage, then let’s deal with that — but I don’t think the logical 
> contortions required to claim otherwise are an effective way to avoid that issue.
>
> Joe
>
> > > RB
> > >
> > > > On Oct 13, 2018, at 5:47 PM, Dave Farber <farber () gmail com> wrote:
> > > >
> > > >
> > > >
> > > >
> > > > Begin forwarded message:
> > > >
> > > > > From: Joe Touch <touch () strayalpha com>
> > > > > Date: October 13, 2018 at 11:44:44 PM GMT+9
> > > > > To: David Jack Farber <dave () farber net>
> > > > > Subject: FCC tells court it has no “legal authority” to impose net neutrality rules
> > > > >
> > > > > FYI - it seems the FCC can’t see the ironies:
> > > > > - if DNS makes broadband ’not telecommunications’, why doesn’t 411 directory service do the same for telephony? 
> > > > > - if the FCC has no jurisdiction on federal broadband, why does it think *it* can block states (such as CA) from 
> > > > > passing their own broadband regulations (which CA just did)?
> > > > >
> > > > > Irony impaired indeed.
> > > > >
> > > > > Joe
> > > > >
> > > > > ----------    
> > > > >
> > > > > https://arstechnica.com/tech-policy/2018/10/ajit-pais-fcc-tells-court-that-net-neutrality-rules-were-illegal/
> > > > >
> > > > > FCC tells court it has no “legal authority” to impose net neutrality rules
> > > > > FCC defends repeal in court, claims broadband isn't "telecommunications."
> > > > >
> > > > > JON BRODKIN -  10/12/2018, 10:22 AM
> > > > >
> > > > > The Federal Communications Commission opened its defense of its net neutrality repeal yesterday, telling a court 
> > > > > that it has no authority to keep the net neutrality rules in place.
> > > > >
> > > > > Chairman Ajit Pai's FCC argued that broadband is not a "telecommunications service" as defined in federal law, 
> > > > > and therefore it must be classified as an information service instead. As an information service, broadband 
> > > > > cannot be subject to common carrier regulations such as net neutrality rules, Pai's FCC said. The FCC is only 
> > > > > allowed to impose common carrier regulations on telecommunications services.
> > >
> > > —
> > > Richard Bennett
> > > High Tech Forum Founder
> > > Ethernet & Wi-Fi standards co-creator
> > >
> > > Internet Policy Consultant
>
> This message was sent to the list address and trashed, but can be found online.



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