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.
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.
> 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.)
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.
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.
> 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!
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 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.
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)
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?
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).
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?
> 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.
