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".
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.
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.
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.
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.
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.
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.
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.
> 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.
