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FCC struggles to convince the judge that broadband is not "telecommunications"



  A protest holds a sign with a picture of a bullhorn and the words,
Magnify / A protest holds a sign outside the FCC headquarters on December 14, 2017 before the poll to abolish net neutrality rules.

Getty Images | Bloomberg

A lawyer from the Federal Communications Commission met a skeptical panel of judges today when the FCC defended its abolition of net neutrality rules and deregulation of the broadband industry.

Advocate General of the FCC, Thomas Johnson, struggled to explain why broadband should not be considered a telecommunications service and struggled to explain the FCC's lack of protection against public security agencies from ISPs that block or slow down the content.

Oral arguments were held today in the case, which is decided by a three panel of judges of the US Court of Appeals for the District of Columbia Circuit. (The sound of the four-hour plus oral arguments is available here.) Spraying firefighter data plans played an important role in today's oral arguments.

Of the three judges, Judge Patricia Millett expressed the most skepticism associated with Johnson's arguments, repeatedly challenging the FCC's definition of broadband and its breach of public security agency arguments. She also asked the FCC's claim that the net neutrality rules damaged broadband investments. Circuit Judge Robert Wilkins also expressed some skepticism about FCC arguments, while Senior Circuit judge Stephen Williams seemed more susceptible to FCC arguments. (Williams earlier partially rejected a 2016 ruling that upheld the Obama-era net decision rules. Now, the same court is considering the FCC chairman Ajit Pais's cancellation of these rules.)

The lawsuit attempting to reverse the nullity of nullity was filed by more than three dozen units, including state lawyers in general, consumer law groups, and tech companies such as Mozilla and Vimeo.

Is Broadband Telecommunications?

To deregulate broadband, the FCC argued that broadband itself is not a telecommunications service and is instead an information service. According to US law, telecommunications is defined as "transmission between or between points specified by the user, information about the user's choice without modification of the form or content of the information transmitted and received."

However, US law says an information service is "the opportunity to generate, acquire, store, transform, process, retrieve, exploit, or make available information via telecommunications." It is up to the FCC to decide whether something is a telecommunications or information service, but FCC decisions can be overridden by a court if they are not sound.

Millett pointed out the importance of "telecommunications" phrase in information service definition, making it clear that an information service rides on top of a telecommunications network. For broadband itself to be an information service, ISPs need to offer nothing more than a mere transfer service.

Johnson said broadband is an information service because ISPs offer Domain Name System (DNS) services and caching as part of the broadband package. DNS and caching "is crucial here" because they allow broadband users to perform all the functions listed in the definition of an information service (for example, acquiring, storing, and processing information), he said.

"DNS, for example, it generates queries to other servers, stores and retrieves domain name information, it translates domain name information that the user provides to an IP address and back," he said. "Caching stores popular content on local servers that users can access However, the DNS / caching argument did not seem to satisfy Millett, she repeatedly asked Johnson why the FCC still considers the telecommunications service to be telecommunications, despite the fact that broadband "I have a lot of trouble understanding" how the FCC description of broadband will not apply to phone service, she said.

As a broadband, "phone service is increasingly accustomed to obtaining information and sharing information," Millett She used the filling of medical prescriptions as an example. Someone can call a pharmacy over the phone and use their voice or press a number of buttons It's getting prescription filled, just as they can get prescription filled by going to a doctor's website, she said. "It seems to be exactly the same functionality, but one is voice and a printer," she said.

Millett also noted that people who are hearing impaired use telephone services with special technology that allows them to communicate. "It's a telecommunication aspect of phones," she said. But the existence of this technology that rides over the telephone network has not caused the FCC to decide that the telephone service is not telecommunications.

Johnson claimed that DNS and caching are "functionally integrated, important information technology components of broadband that distinguish it from traditional telephone service."

Gassing of firefighters

Verizon Wireless & # 39; throttling an unlimited data plan that was used of Santa Clara County firefighters last year played a role in today's oral arguments. Santa Clara County Counsel Danielle Goldstein told the judges that the FCC failed to address the potential impact that blockage and throttle could have on public safety.

Blocking, throttle or any kind of paid priority that causes other traffic to be delivered slower than priority traffic can affect both public security agencies and consumers who rely on broadband to get emergency messages, she noted. As an example, she said that the county public health website provides information on vaccine populations when outbreaks of influenza.

The US law requires the FCC to assess the safety of security, Goldstein said. "The FCC cannot fail to cope with public security, especially in an order that suggests preempting the state and the municipality's ability to fill the regulatory gap," she said, noting that the FCC is attempting to foresee state and local neutrality laws.

Compliance is not sufficient for public security, because such remedies will come after emergencies that cause death, she said.

Millett grilled Johnson on the topic of public safety. "Post-hoc remedies do not work in the public security situation, and unless I missed it, nothing was addressed in the [repeal] order," Millett said.

Johnson responded that "the burden should be on them [the public safety agencies] to show concrete evidence of harm. "

Millett cut in and said," Why is the burden on them? The statute repeatedly states that public security is an important goal, you had comments [from the public] expressing concerns, many of them They seem to have a statutory obligation, you had a lot of comments, a serious problem that should have been addressed by the commission in the order. It's not a burden for them. "

Judge Wilkins addressed the public security – and coherent presets, and constituted a hypothetical character in which New York issues a state law stating that ISPs cannot lubricate services to firefighters.

"Your order seems to ban it [hypothetical law] because your order is written very broadly," Wilkins said. "Doesn't it say that basically all state and local broadband regulations are preempted?"

Johnson said that the FCC does not attempt to predict traditional public security functions performed by states, and said whether a particular state law is preempted "would depend on the facts of the particular case." He did not give a specific answer as to whether a state could prohibit the removal of firefighters' Internet service.

The FCC requires ISPs to continue to provide blocking, deletion, and paid priority to consumers. Johnson claimed that disclosure requirements will prevent bad behavior, because the Federal Trade Commission can penalize companies lurking consumers.

But Millett asked how blocking or damaging could be considered misleading if the ISP reveals it. Johnson admitted the point and said, "If it is fully released, it would not be misleading."


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