FCC’s definition of information is a bad 1990s nostalgia trip

14 October 2018 by Steve Blum
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The Federal Communications Commission is strenuously and – I’d say – unconvincingly arguing that broadband is an information service and not a telecommunications service, as it defends last year’s decision to roll back network neutrality rules. In a brief filed with a Washington, D.C. appeals court, the FCC defended both the logic of its decision and the way it arrived at it.

Courts have already told the FCC that it needs to define broadband as a telecoms services before it can impose common carrier obligations on providers, which, for all practical purposes is what network neutrality rules do.

The FCC’s defence of its conduct relies primarily on older rules, and even older studies, that prevailed before the Obama administration’s commission, with its democratic majority, changed course in 2015 and declared broadband is a common carrier, telecommunications service.

When the Trump administration’s republican led FCC reversed that decision last year, broadband went back to being a largely unregulated information service. It’s accused now of acting quickly without giving the decision as much consideration as the law requires. Its frontline defence amounts to the other guys were arbitrary and capricious, we’re just putting it back to what it was for 20 years.

In the mid–1990s, platforms like AOL offered generic internet access, but it was an add-on to the main business of providing a walled garden line up of data, services and fora. That’s not what broadband providers do now, though. Most Internet traffic is a simple transmission link, between a user and third party service or content platform. So the FCC brief tries to concoct a new definition that fits that model…

A service that offers a capability to generate and process information is an information service, but a service, like broadband, that offers a capability to acquire, retrieve, and utilize information is also an information service.

The problem with the FCC’s argument is that its new definition of information looks a lot like the legal definition of telecommunications…

The term “telecommunications” means 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.

It’s not 1995 anymore. This attempt to redefine information is blatant fantasy. The question will be whether the court will abandon the usual deference it shows to the supposed technical and subject matter expertise of federal regulatory agencies and come down on the side of reality.