FAC struggles to convince the judge that broadband is not a "telecommunication"

A lawyer from the Federal Communications Commission was confronted by a panel of skeptical judges today as the FCC defended the repeal of net neutrality rules and deregulation of the broadband sector.

FCC General Counsel Thomas Johnson has struggled to explain why broadband should not be considered a telecommunications service, and that the FCC has failed to protect Public security agencies Internet service providers blocking or slowing down the content.

The pleadings took place today in the case, which is currently being decided by a three-judge court of the US Court of Appeals for the circuit of the Federal District of Columbia. (The audio pleadings of more than four hours are available here.) The limitation of firefighter data plans has played a major role in today's oral advocacy.

Of the three judges, Patricia Millett, Circuit Judge, expressed the greatest skepticism with respect to Johnson's arguments, repeatedly challenging the FCC's broadband definition and contempt for the arguments advanced by the parties. public security agencies. She also questioned the FCC's badertion that the rules of internet neutrality were hurting broadband investments. Circuit Judge Robert Wilkins also expressed some skepticism about the FCC's arguments, while Chief Circuit Judge Stephen Williams seemed more sensitive to the FCC's arguments. (Williams had formerly dissented in part against a 2016 ruling upholding the net neutrality rules of the Obama era.This same court is now considering the repeal of these rules by FCC President Ajit Pai. )

The lawsuit aimed at canceling the repeal of net neutrality was launched by more than three dozen entities, including attorneys general, consumer advocacy groups and technology companies such as Mozilla and Vimeo.

Is broadband telecommunications?

In order to deregulate broadband, the FCC argued that broadband itself is not a telecommunications service, but an information service. Under US law, telecommunications is defined as "the transmission, between or between points specified by the user, of information of his choice, without modification of the form or content of the information sent and received".

In contrast, according to US law, an information service is "the supply of a capacity to generate, acquire, store, process, process, recover, use or make available 'information by telecommunication'. It is the responsibility of the FCC to determine whether it is a telecommunications or information service, but FCC decisions may be quashed by a court if they are not duly justified.

Millett emphasized the importance of the phrase "via telecommunication" in the definition of the information service, which clearly indicates that an information service circulates over a network telecommunication. For broadband to be itself an information service, ISPs must offer more than just a transmission service.

Johnson said that broadband is an information service because Internet service providers offer Domain Name System (DNS) services and caching as part of the broadband package. DNS and caching "are determinant here" because they allow broadband users to perform all the functions listed in the definition of an information service (for example, acquiring, store and process information), he said.

"DNS, for example, generates queries on other servers, stores and retrieves domain name information, converts domain name information provided by the user into IP addresses and vice versa" , did he declare. "Caching stores popular content on local servers that users can access, which also satisfies storage and recovery capabilities."

But the DNS / caching argument did not seem to satisfy Millett. She repeatedly asked Johnson why the FCC still considered the telephone service as a telecommunications service, whereas she had decided that broadband would not be. "I have a lot of trouble understanding" how the broadband FCC description would not also apply to telephone service, she said.

Like broadband, "the phone service is constantly used to acquire information and share information," said Millett. She used the filling of medical prescriptions as an example. Someone can call a pharmacy over the phone and use his voice or press a series of buttons to get a prescription filled, just as they can get a prescription by visiting a doctor's website, did they? she said. "It seems like it's exactly the same functionality, but one is the voice and the other is typing," she said.

Millett also noted that hearing-impaired people use telephone services with special technology that allows them to communicate. "It's an aspect of telecommunications in phones," she said. But the existence of this technology through the telephone network has not prompted the FCC to decide that the telephone service is not a telecommunication system.

Johnson argued that DNS and caching are "essential components of broadband information processing functionally integrated that distinguish it from traditional telephone service."

Strangulation of firefighters

The limitation by Verizon Wireless of an unlimited data plan used by Santa Clara County firefighters last year played a role in today's oral arguments. Santa Clara County lawyer Danielle Goldstein told the judges that the FCC had not taken into account the potential impact of the blockage and limitation in terms of safety on public safety .

Blocking, limiting, or any other form of paid priority that causes the remaining traffic to travel slower than the priority traffic could affect both public safety agencies and consumers who rely on broadband to receive messages. emergency, she noted. For example, she stated that her county's public health website provided information on the stock of vaccines in the event of an influenza outbreak.

US law requires the FCC to consider impacts on public safety, Goldstein said. "The FCC can not fail to be concerned about public safety, particularly as part of an order to pre-empt the state's and local government's ability to fill this regulatory gap," he said. she said, pointing out that the FCC was trying to preempt network and state neutrality laws.

After-the-fact solutions are not enough for public safety because they would come after emergencies resulting in death, she said.

Millett grilled Johnson on the subject of public safety. "Post-hoc remedies do not work in the context of public safety, and unless I miss it, it has not been addressed anywhere in the world. [repeal] order, "said Millett.

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

Millett said, "Why is the burden on them?" The law repeats again and again that public safety is an important goal, you have comments [from the public] expressing concerns, many of them. It seems that you have a legal obligation, that you have a lot of comments, a serious question that should have been dealt with by the commission in order. This is not a burden for them. "

Judge Wilkins discussed public safety and pre-emption issues together, hypothesizing the badumption that New York enacts a state law stating that Internet service providers can not limit service provided to firefighters.

"Your order seems to prohibit that [hypothetical law] because your order is written very widely, "said Wilkins. Does he not say that, basically, all national and local broadband regulations are pre-empted? "

Johnson said that the FCC was not trying to preempt the traditional public security functions badumed by the states, and specified that a pre-emption of the law of a specific state "would depend on the facts of this particular case ". He did not specify whether a state could prohibit the limitation of firefighters' Internet service.

The FCC always requires Internet Service Providers to disclose to consumers any blocking, limitations and paid priority. Johnson argued that requiring public disclosures would avoid reprehensible behavior because the Federal Trade Commission can punish companies that deceive consumers.

But Millett asked how blocking or strangling could be considered misleading if the ISP revealed it. Johnson conceded the point, saying, "if it's completely leaked, there would be nothing deceptive about it."