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Sun Feb 3, 2019, 09:52 AM

FCC struggles to convince judge that broadband isn't "telecommunications"

A Federal Communications Commission lawyer faced a skeptical panel of judges today as the FCC defended its repeal of net neutrality rules and deregulation of the broadband industry.


FCC General Counsel Thomas Johnson struggled to explain why broadband shouldn't be considered a telecommunications service, and struggled to explain the FCC's failure to protect public safety agencies from Internet providers blocking or slowing down content.

Oral arguments were held today in the case, which is being decided by a three-judge panel of the US Court of Appeals for the District of Columbia Circuit. (Audio of the four-hour-plus oral arguments is available here.) Throttling of firefighters' data plans played a major role in today's oral arguments.

Of the three judges, Circuit Judge Patricia Millett expressed the most skepticism of Johnson's arguments, repeatedly challenging the FCC's definition of broadband and its disregard for arguments made by public safety agencies. She also questioned the FCC's claim that the net neutrality rules harmed broadband investment. Circuit Judge Robert Wilkins also expressed some skepticism of FCC arguments, while Senior Circuit Judge Stephen Williams seemed more amenable to FCC arguments. (Williams previously dissented in part from a 2016 ruling that upheld the Obama-era net neutrality rules. Now the same court is considering FCC Chairman Ajit Pai's repeal of those rules.)

The lawsuit seeking to overturn the net neutrality repeal was filed by more than three dozen entities, including state attorneys general, consumer advocacy groups, and tech companies such as Mozilla and Vimeo.

https://arstechnica.com/tech-policy/2019/02/throttling-of-firefighters-hurts-fcc-case-as-it-defends-net-neutrality-repeal/

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Arrow 30 replies Author Time Post
Reply FCC struggles to convince judge that broadband isn't "telecommunications" (Original post)
orangecrush Feb 3 OP
Autumn Feb 3 #1
blogslut Feb 3 #3
Autumn Feb 3 #5
calimary Feb 4 #25
PatrickforO Feb 3 #17
RichardRay Feb 3 #2
blogslut Feb 3 #4
RichardRay Feb 3 #7
blogslut Feb 3 #9
RichardRay Feb 3 #24
SWBTATTReg Feb 3 #6
RichardRay Feb 3 #8
SWBTATTReg Feb 3 #10
eggplant Feb 3 #23
elleng Feb 3 #15
JohnnyRingo Feb 3 #18
marylandblue Feb 4 #26
onenote Feb 4 #28
PeeJ52 Feb 3 #11
Towlie Feb 3 #13
onenote Feb 4 #29
yaesu Feb 3 #12
Bob_in_VA Feb 3 #14
scarytomcat Feb 3 #16
thesquanderer Feb 3 #19
SWBTATTReg Feb 4 #27
onenote Feb 4 #30
BobTheSubgenius Feb 3 #20
jalan48 Feb 3 #21
thesquanderer Feb 3 #22

Response to orangecrush (Original post)

Sun Feb 3, 2019, 10:07 AM

1. I would like answers on why and how more than half

of the 21.7 million public comments supporting the rule change were likely faked. I commented and there were 3 other comments with all my information that were the exact opposite of my position, using the exact same comment on all 3 of those faked comments. That didn't just happen out of the blue and it wasn't just online trolls.

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Response to blogslut (Reply #3)

Sun Feb 3, 2019, 10:16 AM

5. That second link? Wow. Move a pile of maggots and there's Roger Stone.

Thanks for the link.

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Response to blogslut (Reply #3)

Mon Feb 4, 2019, 10:44 AM

25. Good stuff. Thanks for posting these, blogslut!

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Response to Autumn (Reply #1)

Sun Feb 3, 2019, 12:11 PM

17. Yeah, I and other members of my family commented during the

'open comment' period prior to the criminal Pai's ruling, and my comments certainly were in favor of keeping net neutrality.

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Response to orangecrush (Original post)

Sun Feb 3, 2019, 10:08 AM

2. Judges are unqualified...

... to decide many questions requiring more than a modestly sophisticated layman’s understanding of technical issues. Senators and Representatives, too. There should be a ‘qualification’ or ‘certification’ available, and people making decisions on technology issues required to have such a imprimatur in order to rule on cases within that purview.

(It would be nice to use similar qualification to filter message boards and discussion forums 🤔.)

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Response to RichardRay (Reply #2)

Sun Feb 3, 2019, 10:15 AM

4. Are you arguing that internet/broadband should not be classified as telecommunications?

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Response to blogslut (Reply #4)

Sun Feb 3, 2019, 10:31 AM

7. Am I? What does it sound like to you?

I said that judges making decisions on technical matters beyond the scope of lay acquaintance with the technology should be qualified to comprehend the arguments. Having arguments ‘dumbed down’ for decision makers is pretty silly.

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Response to RichardRay (Reply #7)

Sun Feb 3, 2019, 10:37 AM

9. Where in the article does it say the arguments were "dumbed down" for the judges?

Internet/Broadband is a public utility. Period. The public deserves to have access to it without the price-gouging and tier-based tolls of providers.

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Response to blogslut (Reply #9)

Sun Feb 3, 2019, 12:54 PM

24. The entire tone of the discussion is dumbed down.

If it weren’t, the silliness of arguing about bandwidth would be obvious.

Yes. Internet bandwidth is a public good and should be regulated as such.

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Response to RichardRay (Reply #2)

Sun Feb 3, 2019, 10:24 AM

6. Generally, experts are called in to prep the attorneys who are preparing to go before the FCC...

and testify. Lots of materials used are prepared by SMEs within the telephone companies too, in advance of the testify dates, so attorneys and their staffs are usually pretty well prep'ed or have detailed position papers on the topics to be discussed.

I hope senators and legislators are prepared in a similar manner (I don't know about them), but I did help prep our (at my former place of work, a major telecommunications company) in-house teams going before the FCC in some matters. The FCC and staff, I'm not sure about, on how they prep'ed, you would think that they would have the technical qualifications to judge on matters related to telecommunications but I doubt it, being a political appointed office (perhaps their staff have the qualifications).

This is one of the sad things about regulation via the FCC, or each states' regulatory commissions, in that every time a rate increase is needed or a new service or etc., is developed, a trip to the public utility commission and/or FCC was mandated. Some deregulation allowed certain factors in a company's mix of business (fall below a certain percentage, land lines within a market) allows it to finally escape regulation.



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Response to SWBTATTReg (Reply #6)

Sun Feb 3, 2019, 10:33 AM

8. That's what I'd like to avoid.

SME’s are often required to ‘spin’ information as they dumb it down. Let the decision makers gain native proficiency in understanding the basics of a field before they re required to make crucial decisions involving regulation.

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Response to RichardRay (Reply #8)

Sun Feb 3, 2019, 10:37 AM

10. That would of course be the goal of every informed person, but sometimes I think other ...

nefarious goals are in mind instead of the common sense ones (be smart on making decisions like you say). Take care.

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Response to RichardRay (Reply #8)

Sun Feb 3, 2019, 12:47 PM

23. This is how all court cases work when things get complicated.

In medical cases, each side has their "experts" to testify. Civil engineering failures. All sorts of liability cases. The list goes on.

SMEs are never neutral. They testify on behalf of one side or the other. This is the nature of jurisprudence.

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Response to RichardRay (Reply #2)

Sun Feb 3, 2019, 11:49 AM

15. That's why the regulatory agencies were developed,

to address your concerns, but their decisions are then reviewed by courts.

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Response to RichardRay (Reply #2)

Sun Feb 3, 2019, 12:17 PM

18. The lawsuits don't question whether it's technically a good idea

The suits call into question the legality of such a move. Technology has nothing to do with it at this point. The moral argument of handing the internet over to profiteers is not a legal issue and has no venue other than the ballot box.

Fortunately, the panel seems to be leaning two to one for dismissing the repeal of net neutrality. Fingers crossed.

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Response to RichardRay (Reply #2)

Mon Feb 4, 2019, 11:00 AM

26. In other countries, courts hire their own technical experts to advise them

This way they get neutral advice to help make their decision.

The problem with requiring a judge to have a technical qualification, is that you then have to get someone who is dual certified in both law and a specialized technical field. Such people are very hard to find. So you would end up with cases with nobody qualified to judge them.

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Response to RichardRay (Reply #2)

Mon Feb 4, 2019, 01:20 PM

28. The issues presented do not simply relate to technical matters.

Here is how one of the leading pro-net neutrality groups characterized the issues presented in the brief they filed with the Court of Appeals:

"Whether the Order’s reclassification of broadband Internet access service as an “information service,” and mobile broadband Internet access service as a "private mobile service,” misinterprets or violates the law; and the FCC’s failure to consider the evidence, abandonment of the open Internet rules, and denial of motions to introduce additional evidence, violates the APA or is otherwise contrary to law."

Terms like "telecommunications" and "information services" and "private mobile service" are defined statutory and/or regulatory terms, established by Congress and/or the FCC. Technical experts play a small role in addressing these legal issues.

If you were right, by the way, it would mean that Joe and Jane Q. Public shouldn't have much of a role when Congress and/or agencies make decisions on matters with a technical component.

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Response to orangecrush (Original post)

Sun Feb 3, 2019, 11:28 AM

11. There is no way this can win...

Internet is used more than phone lines now. Broadband IS telecommunications!!!

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Response to PeeJ52 (Reply #11)

Sun Feb 3, 2019, 11:47 AM

13. It might win.

No matter how absurd a claim, you never know how a court might rule on it. After all, a court in 1970 ruled that "It is quite obvious that the national motto and the slogan on coinage and currency 'In God We Trust' has nothing whatsoever to do with the establishment of religion."

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Response to PeeJ52 (Reply #11)

Mon Feb 4, 2019, 01:24 PM

29. Telecommunications has a specific statutory definition.

Whether it is used more or less than phone service doesn't impact the application/interpretation of that definition.

The relevant terms include telecommunications carrier, telecommunications, and information services, defined in 47 USC as follows:

A “telecommunications carrier” is a “provider of telecommunications services,” which is “an offering of telecommunications for a fee directly to the public. . . .” 47 USC §§ 153(51), (53). “Telecommunications,” in turn, is defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change.
in the form or content of the information as sent and received.” Id. § 153(50). Telecommunications services allow users to reach “information services,” defined as an “offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications . . . .” Id. § 153(24).

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Response to orangecrush (Original post)

Sun Feb 3, 2019, 11:42 AM

12. MSM, most owned by corporations that will profit off the death of net neutrality, have not

reported on it at all, not a peep, including MSNBC. They know there is no defending the FCC decision so they forbid even talking about it.

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Response to orangecrush (Original post)

Sun Feb 3, 2019, 11:48 AM

14. Puzzled

Could someone explain to me how the Internet is not a telecommunications medium, given that my phone service - provided by my Internet provider - is VOIP? I would be real curious to see the answer.

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Response to Bob_in_VA (Reply #14)

Sun Feb 3, 2019, 12:00 PM

16. exactly this seems very simple to me

the telecoms are trying muddy the water for financial gain. I hope the judges see though it. To bad the FCC isn't standing up for the people like it should. They have sold us out.

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Response to Bob_in_VA (Reply #14)

Sun Feb 3, 2019, 12:21 PM

19. Read the linked article for the foundation for that argument. (n/t)

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Response to Bob_in_VA (Reply #14)

Mon Feb 4, 2019, 12:58 PM

27. Because the telephone companies over the years have different definitions for what ...

constitutes telephony (e.g., analog data etc.) vs. telecommunications...and there literally isn't a difference in the technologies, its just semantics, and thus, different pricing applies, different cost structures applies, different laws (for example, telecommunications services are deregulated, vs. the vast bulk of telephone services, the land lines, etc. are regulated). All it does is freedom from regulations, and different pricing...

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Response to Bob_in_VA (Reply #14)

Mon Feb 4, 2019, 01:27 PM

30. See post #29

I'm not disagreeing with the argument that the definition of the term "telecommunications" should encompass Internet Access, just that the issues are not, thanks to the statutory provisions at issue, as clear as they might otherwise be.

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Response to orangecrush (Original post)

Sun Feb 3, 2019, 12:26 PM

20. A 5 minute search on Google would turn up the information the judges need,

They should enter "packet switching" as the search input. If the descriptions and definitions in the first few results don't convince then, I'm sure there is a person with telecom bona fides available to the "repeal" side that can explain it in under a minute.

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Response to orangecrush (Original post)

Sun Feb 3, 2019, 12:37 PM

21. This is campaign donation money talking.

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Response to orangecrush (Original post)

Sun Feb 3, 2019, 12:40 PM

22. They're basing the argument on DNS services and caching...

...i.e. that they don't just facilitate communication, they also provide an information service. But that seems really weak to me. Even a telecommunications service needs a method to route person/device A to person/device B, a DNS function is in effect just a fancy switchboard, not an information service. And caching is not integral to the existence of broadband, nor does the end user's device ever specifically request that info be provided specifically from the cache. If I come up with a way to get you your milk more quickly, that doesn't make me a cow.

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