The story of the FCC's net neutrality decision and why it won't stand up in court.

• Author: Pai, Ajit
• Position: II. Defects in Substance A. Reclassification (Title II

2. Recent Developments.

Developments in the marketplace since the Stevens Report make it even more clear that ISPs do not "merely offer transmission" between points of the user's choosing but instead offer a highly complex information service.

Take the most basic example of visiting a webpage via a browser. When the user types a domain name into a browser, the browser typically queries the ISP's Domain Name System (DNS) service for the proper IP address to send that information. The DNS service determines whether that information is stored on the local server; if so, it returns that IP address to the user, and if not, it queries another DNS server. Such DNS servers are typically arranged in a hierarchy and searched recursively; once the URL is found, the appropriate information is forwarded and stored by each DNS server in the chain. These functionalities--caching information and storing and forwarding information--are classic enhanced services. (166)

It gets even more complicated. For one, there is no necessary one-to-one correlation between domain names and IP addresses. (167) So if an Internet user in California and a user in New York City both seek the IP address for www.yahoo.com, an ISP could return different IP addresses to each user. The assignment could be random (to balance the load the server at each IP address must handle). Or the ISP could make the decision based on any number of factors, such as the physical proximity of the servers to the user (to reduce the latency of the connection).

For another, even with an IP address, an ISP may not connect a user with a particular end point. Instead, ISPs regularly cache popular content-anything from simple text to streaming video--so that when a subscriber requests such content it can be retrieved more quickly (and with less load on the network) than would occur if the request were sent to its specified destination. (168) And it's not just an ISP's own servers that cache content; an entire industry of content delivery networks have sprung up to move content closer to Internet users to improve performance. (169)

And there's still more: ISPs are eliminating viruses and other malicious attacks on their networks, including by (1) implementing DNS Security Extensions to verify the integrity of the DNS information retrieved for subscribers, (2) erecting firewalls and other screening mechanisms to prevent denial-of-service attacks and the effectiveness of botnets, and (3) monitoring network traffic patterns to ensure early detection of security threats. (170) They are using network address translation to establish non public IP addresses for their subscribers. (171) And they are processing protocols to bridge the gap between IPv4 and IPv6. (172)

The end result of all this? Even for the most basic web browsing functions, an ISP is doing more than merely offering transmission between points of the user's choosing. Indeed, as one commenter put it, "it is literally impossible for a broadband user to specify the 'points' of an Internet 'transmission' on the web" since the user is really just "specifying the original source of the information the user wants to retrieve" and the ISP then uses that information to choose the endpoint among several alternatives. (173) Or as the Stevens Report put it, Internet access service enables subscribers "to access information with no knowledge of the physical location of the server where that information resides," (174) not "between or among points specified by the user." (175)

The contrary conclusion--that Internet access service is a telecommunications service and that DNS service, caching, and "a variety of new network-oriented, security-related computer processing capabilities" (176) all fall within the telecommunications system management exception (177)--is in error. These capabilities serve the interests of subscribers, not ISPs. For instance, DNS service doesn't facilitate an ISP's "management ... of a telecommunications system or ... service"; it allows a subscriber's request for access to particular content to be translated into an IP address. And in any case, these capabilities are not telecommunications services unless the underlying service itself is a telecommunications service--which, as explained above, it is not.

Moreover, the notion that these capabilities might fall within the management exception to the definition of information services would have been unthinkable to the Congress that enacted the Telecommunications Act. Had Internet access service been a basic service, dominant carriers could have offered it--and all related computer-processing functionality-outside the parameters of the Computer Inquiries. Had Internet access service been a telecommunications service, Bell operating companies could have offered it themselves under the Modified Final Judgment. But I cannot find a single suggestion that anyone in Congress, anyone at the FCC, anyone in the courts, or anyone at all thought this was the law during the passage of the Telecommunications Act. (178) Statutory interpretation "must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency." (179) And it is highly unlikely that Congress drew upon historical sources to define a statutory term, but then intended to give the FCC the discretion to reach the exact opposite result. (180)

Furthermore, given the increasing use of computer processing in the networking, I do not see how "[c] hanged factual circumstances" could lead the FCC to revisit the classification of Internet access service. (181) Although the FCC's prior determinations rested on "a factual record compiled over a decade ago," (182) the Order does not identify any actual change.

First, the Order points to "consumer conduct" (183) to show that consumers use the Internet "today primarily as a conduit for reaching modular content, applications, and services that are provided by unaffiliated third parties." (184) "Examples include 350-400 million visits a day to Google and YahooFs 'popular alternatives to the email services provided' by ISPs, Go Daddy providing 'website hosting,' and Apple, Dropbox, and Carbonite operating 'cloud-based' storage.'" (185)

But the availability and popularity of third-party content is hardly new. Yahoo! Mail went online in 1997. (186) HoTMaiL (the original web based email) launched in 1996. (187) GeoCities, a website-hosting service, launched in 1994 and was the third most-visited site on the web in 1999. (188) And Amazon.com was selling books, music, and videos before the turn of the century, and began offering cloud-based Amazon Web Services in 2002. (189) Were the most successful sites back then as large as the most successful sites today? Of course not. The number of broadband Internet connections has skyrocketed from 4.3 million in 2000 (at speeds of 200 kbps) to 122 million (at speeds of 10 Mbps) (190)--and a rising tide lifts all ships (or most, except alas for GeoCities).

And the FCC was certainly aware that consumers were visiting thirdparty sites and using third-party applications in its previous classification decisions. The Cable Modem Order itself noted that "cable modem service subscribers, by 'click-through' access, may obtain many functions from companies with whom the cable operator has not even a contractual relationship. For example, a subscriber to Comcast's cable modem service may bypass that company's web browser, proprietary content, and e-mail. The subscriber is free to download and use instead, ft# example, a web browser from Netscape, content from Fox News, and e-mail in the form of Microsoft's 'Hotmail.'" (191) So what has changed? Nothing legally relevant. New automotive makes, models, and functions have arrived since 2005; that doesn't change the fact that what we are doing is driving. LED bulbs are replacing incandescent bulbs by the millions; that doesn't change the fact that we're using something to light up a room. We access and use the capabilities that Internet access service provides in new and novel ways; that doesn't change the fact that we're accessing and using the Internet.

Next, the Order points to "broadband providers' marketing and pricing strategies." (192) Some "advertisements ... emphasize transmission speed as the predominant feature that characterizes broadband Internet access service offerings," such as AT&T's claim that it offers the "[n]ation's most reliable 4G LTE network" with "speeds up to lOx faster than 3G." (193) Others "link higher transmission speeds and service reliability with enhanced access to the Internet at large," such as RCN's claim that its "110 Mbps High-Speed Internet" offering is "ideal for watching Netflix." (194) And ISPs "price and differentiate their service offerings on the basis of the quality and quantity of data transmission" with higher prices for faster speeds. (195)

But again, this is nothing new. In 1999, Qwest asked customers "Could your business use the bandwidth to change everything?" and advertised service fast enough to access "every movie ever made in any language anytime, day or night." (196) In 2001, Charter was offering "Internet Light" (256 kbps service for $24.95 per month) and "Residential Classic" (1024 kbps for $39.95 per month) as part of its "Charter Pipeline" service. (197) Even America Online in 1999 was advertising how it "spent over $1 billion to build the world's largest high-speed network--now with 56k, connections are faster than ever!" (198)

And again, the FCC knew this when it decided the Cable Modem Order. In the Commission's Second Broadband Deployment Report in 2000, the FCC noted the prices for broadband Internet access service, from "low-end ADSL service" priced at $39.95 to $49.95 per month, to "[f]aster ADSL services" at $99.95 to $179.95 per month, and "symmetric DSL ... well-suited to applications ... such as...