I'm spoiled by SCOTUSblog's case analysis in terms of legal tea leaf reading, which ArsTechnica is most definitely not, but I'll try to do it anyways. If I understand the case properly, there's a few different moving pieces going on here.
On the first, whether or not broadband can be classified as information service... I expect the ruling to be that it can be. The fact is that the FCC had classified it as such in the past, and only very recently changed that classification. We can sit here and laugh about how minimal the support is (the only information service that the FCC can find to cite is DNS, after all), but this amounts to (from a legal perspective) challenging the technical definition of the agency providing said technical definition, which is generally destined to fail (see Chevron).
There is a wrinkle, of course, that the FCC's process for making this determination is flawed, so it's possible that the court could rule that, while the decision per se isn't wrong, the process is wrong, so the FCC would have to go back and redo that. This article doesn't give much of a clue as to how the court would rule here.
The last question is if the rules here preempt local rules. I've always thought this argument had a tough time, because the argument of the FCC is (in effect) that it doesn't have the authority to regulate broadband as an information service but its non-authority to regulate them preempts states' authority to regulate them. For federal deregulation to preempt potential state regulation, it has to be fairly explicit in law, not just an agency decision. It looks like there is some pushback here in that the judges think that the FCC's deregulatory claims here are too broadly scoped.
Given Ars's editorial slant, I'm assuming that we're getting most of the pro-net-neutrality segments of the argument cherry picked, which would lead me to conclude that this is not going to be a ruling that net neutrality advocates are hoping for.
They leave the problems for the very end, where they note that the supreme court has already said that classifying a cable modem as an information service is an allowed reading of the law.
My overall impression reading the definions is what salawat said, that something about the ordinary use of language isn't happening. But even with those definitions my question would be if broadband isn't a telecommunication service then what is the telecommunication service it is over?
Unfortunately, "the supreme court was just plain wrong last time" is not really allowed in legal decisions. It sounds like at least one of the judges wants to argue that since ISP email is no longer generally used things have changed.
"...if broadband isn't a telecommunication service then what is the telecommunication service it is over?"
Exactly. The most they can argue credibly is that it's both, not that it's only an information service. And frankly, even saying it's both is an admission of a conflict of interest on the part of the telecom companies. It's a bad idea to have the "information service" and the "telecommunications service" be owned by the same people. But the companies to which Pai and the FCC are apparently playing errand-boys have been doing everything they could in recent years to blur the line. OK fine then, blur the line; in some ways it was an arbitrary distinction anyway. (All communications involves information and all information insofar as it gets transferred involves communication.) But that means you're either
1) strictly a telecom
2) a telecom while maybe being an info svc too, and therefore in a conflict of interest, which I think we should remedy by regulating you as a telecom
> But even with those definitions my question would be if broadband isn't a telecommunication service then what is the telecommunication service it is over?
When you state it like that, the answer is really, really obvious.
Too bad the courts won’t allow us to treat this equally simple.
I haven't read the decision in question carefully, but I did skim some of the briefs in this case. My understanding is that the decision basically said "broadband is providing both telecommunication and information services, so it's acceptable to classify is information service." Mozilla et al. is arguing that the information services broadband--e.g., Usenet, personal website hosting--used to provide are no longer being provided, so that broadband companies are no longer providing the information services needed to let them be classified as information services.
> My understanding is that the decision basically said "broadband is providing both telecommunication and information services, so it's acceptable to classify is information service"
I don't see why these are mutually exclusive. If they are both, shouldn't they be subject to both sets of rules? Or perhaps they should be required to separate them.
"[FCC General Counsel Thomas Johnson] said broadband is an information service because Internet providers offer DNS (Domain Name System) services and caching as part of the broadband package."
"For broadband itself to be an information service, ISPs have to offer something more than a pure transmission service."
DNS is integral to the utility of the web as an "information system"--not really a user friendly service to have to enter the IP address to order on Grubhub. Yet, DNS can be provided by a third party. It's the sort of thing you add to your service to make it easier for users to adopt. But if you take it away, then don't we just have a telecommunication service?
Not only that, but websites don't have TLS certificates securing their IP-address-form hostnames. The user's browser probably wouldn't even allow the site to load, if the web server even accepted the IP address as a hostname to begin with. The modern web is virtually useless without DNS.
The poor decisions of developers in relying on the crutch of DNS does not somehow magically elevate IP routing away from being a telecommunications service.
I can establish a completely IP based network infrastructure that provides valuable service to customers at broadband speeds. It wouldn't be fun, but it would work. That's inarguably telecom, based on their argument, because it wouldn't involve DNS.
If you try to argue against broadband being telecom because it has an automated yellow pages, I don't know what to tell you except you're outright lying about the science, and attempting to perpetuate a maliciously narrow tooled definition in bad faith.
Now that we bring up the topic, what the heck is an information service other than a service that serves information over a telecommunication line thereby rendering it a telecommunication service?
I feel like I live in a different universe from these people. Like there's fundamental rules or mechanisms I've learned about using language to render a shared experience/common worldview with others that are just absent in these types of proceedings.
It has gotten to the point that when I read or listen to these types of things, what people aren't saying sticks out more to me than what they are saying. It's infuriating.
"I feel like I live in a different universe from these people."
It's the same universe. Remember that it is difficult to get a person to understand something when their salary depends upon not understanding it.
The real paymasters behind the leadership of the FCC expect the FCC to continue drawing the distinctions that serve their interest. Any understanding of the matter that is contrary to "the FCC can't regulate broadband" is, therefore, incomprehensible.
> Now that we bring up the topic, what the heck is an information service other than a service that serves information over a telecommunication line thereby rendering it a telecommunication service?
I expect they would say that the medium an information service uses isn't relevant. A kiosk on the street or one served over the internet are conceptually the same: someone approaches them for information, and they receive the best answer available.
The fact that it takes place over the internet shouldn't convey a status of telecommunication service. However, it seems pretty clear that providing both information and telecommunication services, as ISPs do, doesn't mean they are only an information service.
On the first, whether or not broadband can be classified as information service... I expect the ruling to be that it can be. The fact is that the FCC had classified it as such in the past, and only very recently changed that classification. We can sit here and laugh about how minimal the support is (the only information service that the FCC can find to cite is DNS, after all), but this amounts to (from a legal perspective) challenging the technical definition of the agency providing said technical definition, which is generally destined to fail (see Chevron).
There is a wrinkle, of course, that the FCC's process for making this determination is flawed, so it's possible that the court could rule that, while the decision per se isn't wrong, the process is wrong, so the FCC would have to go back and redo that. This article doesn't give much of a clue as to how the court would rule here.
The last question is if the rules here preempt local rules. I've always thought this argument had a tough time, because the argument of the FCC is (in effect) that it doesn't have the authority to regulate broadband as an information service but its non-authority to regulate them preempts states' authority to regulate them. For federal deregulation to preempt potential state regulation, it has to be fairly explicit in law, not just an agency decision. It looks like there is some pushback here in that the judges think that the FCC's deregulatory claims here are too broadly scoped.
Given Ars's editorial slant, I'm assuming that we're getting most of the pro-net-neutrality segments of the argument cherry picked, which would lead me to conclude that this is not going to be a ruling that net neutrality advocates are hoping for.