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Judicial Watch • FCC Net Neutrality Fact Sheet 498

FCC Net Neutrality Fact Sheet 498

FCC Net Neutrality Fact Sheet 498

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FCC FACT SHEET
Restoring Internet Freedom
Declaratory Ruling, Report and Order, and Order Docket No. 17-108
Background: Over twenty years ago, President Clinton and Republican Congress established the
policy the United States preserve the vibrant and competitive free market that presently exists for
the Internet unfettered Federal State regulation. For decades, Commission policies encouraged
broadband deployment and the development the Internet. That ended two years ago. 2015, the
Commission imposed heavy-handed, utility-style regulation Internet service providers (ISPs). Since
then, broadband investment has fallen for two years row the first time that that happened outside
recession the Internet era. And new services have been delayed scuttled regulatory
environment that stifles innovation.
This Declaratory Ruling, Report and Order, and Order would return the bipartisan consensus lighttouch regulation, ending utility-style regulation the Internet. This will promote future innovation and
investment. And more investment digital infrastructure will create jobs, increase competition, and lead better, faster, cheaper Internet access for all Americans, especially those rural and low-income areas.
What the Declaratory Ruling Would Do:
Restore the classification broadband Internet access service information service the
classification affirmed the Supreme Court the Brand case.
Reinstate the private mobile service classification mobile broadband Internet access service.
Clarify the effects the return information service classification other regulatory
frameworks, including the need for uniform federal regulatory approach apply interstate
information services like broadband Internet access service.
What the Report and Order Would Do:
Adopt transparency requirements that ISPs disclose information about their practices
consumers, entrepreneurs, and the Commission.
Restore the Federal Trade Commission ability protect consumers online from any unfair,
deceptive, and anticompetitive practices without burdensome regulations, achieving comparable
benefits lower cost.
Eliminate the vague and expansive Internet Conduct Standard, under which the FCC
micromanaged innovative business models, along with the bright-line rules.
What the Order Would Do:
Find that the public interest not served adding the already-voluminous record this
proceeding additional materials, including confidential materials submitted other proceedings.
This document being released part permit-but-disclose proceeding. Any presentations views the
subject expressed the Commission its staff, including email, must filed Docket No. 17-108, which
may accessed via the Electronic Comment Filing System (https://www.fcc.gov/ecfs/). Before filing, participants
should familiarize themselves with the Commission parte rules, including the general prohibition
presentations (written and oral) matters listed the Sunshine Agenda, which typically released week prior
the Commission meeting. See CFR 1.1200 seq.
Federal Communications Commission
FCC-CIRC1712-04
Before the
Federal Communications Commission
Washington, D.C. 20554 the Matter
Restoring Internet Freedom Docket No. 17-108
DECLARATORY RULING, REPORT AND ORDER, AND ORDER
Adopted:
Released: the Commission:
TABLE CONTENTS
Para. INTRODUCTION ..................................................................................................................................
II. BACKGROUND ....................................................................................................................................
III. ENDING PUBLIC-UTILITY REGULATION THE INTERNET ................................................ Reinstating the Information Service Classification Broadband Internet Access Service .......... Scope ....................................................................................................................................... Broadband Internet Access Service Information Service Under the Act........................ Other Provisions the Act Support Broadband Information Service Classification .......... Reinstating the Private Mobile Service Classification Mobile Broadband Internet
Access Service ............................................................................................................................... Public Policy Supports Classifying Broadband Internet Access Service
Information Service ....................................................................................................................... Title Regulation Imposes Substantial Costs the Internet Ecosystem .............................. Utility-Style Regulation Broadband Solution Search Problem ....................... 109 Pre-Existing Consumer Protection and Competition Laws Protect the Openness the
Internet .................................................................................................................................. 140 Restoring the Information Service Classification Lawful and Necessary ................................ 155 Effects Regulatory Structures Created the Title Order .................................................. 162 Ending Title Regulation Internet Traffic Exchange ...................................................... 163 Forbearance ........................................................................................................................... 170 Returning Broadband Privacy Authority the FTC............................................................. 177 Wireline Infrastructure .......................................................................................................... 181 Wireless Infrastructure .......................................................................................................... 183
This document has been circulated for tentative consideration the Commission its December open meeting.
The issues referenced this document and the Commission ultimate resolution those issues remain under
consideration and subject change. This document does not constitute any official action the Commission.
However, the Chairman has determined that, the interest promoting the public ability understand the nature
and scope issues under consideration, the public interest would served making this document publicly
available. The FCC parte rules apply and presentations are subject permit-but-disclose parte rules. See,
e.g., C.F.R. 1.1206, 1.1200(a). Participants this proceeding should familiarize themselves with the
Commission parte rules, including the general prohibition presentations (written and oral) matters listed the Sunshine Agenda, which typically released week prior the Commission meeting. See CFR
1.1200(a), 1.1203.
Federal Communications Commission
FCC-CIRC1712-04 Universal Service .................................................................................................................. 188 Preemption Inconsistent State and Local Regulations ...................................................... 190 Disability Access Provisions ................................................................................................. 201 Continued Applicability Title III Licensing Provisions .................................................... 202
IV. LIGHT-TOUCH FRAMEWORK RESTORE INTERNET FREEDOM................................. 203 Transparency ................................................................................................................................ 205 History the Transparency Rule.......................................................................................... 207 Refining the Transparency Rule ............................................................................................ 211 Authority for the Transparency Rule..................................................................................... 228 Bright-Line and General Conduct Rules...................................................................................... 235 Transparency Leads Openness .......................................................................................... 236 Costs Conduct Rules Outweigh Benefits .......................................................................... 242 The Record Does Not Identify Authority for Comprehensive Conduct Rules...................... 263 Enforcement ................................................................................................................................. 293 COST-BENEFIT ANALYSIS ........................................................................................................... 300
VI. ORDER .............................................................................................................................................. 320 Denial INCOMPAS Petition Modify Protective Orders ..................................................... 320 Denial NHMC Motion Regarding Informal Consumer Complaints ....................................... 335
VII.PROCEDURAL MATTERS .............................................................................................................. 340 Final Regulatory Flexibility Analysis .......................................................................................... 340 Paperwork Reduction Act Analysis ............................................................................................. 341 Congressional Review Act........................................................................................................... 343 Data Quality Act .......................................................................................................................... 344 Accessible Formats ...................................................................................................................... 345
VIII. ORDERING CLAUSES .............................................................................................................. 346
APPENDIX
APPENDIX
INTRODUCTION
Over twenty years ago, the Telecommunications Act 1996 established the policy the
United States preserve the vibrant and competitive free market that presently exists for the Internet
unfettered Federal State regulation. Today, honor that bipartisan commitment free and
open Internet rejecting government control the Internet. reverse the Commission abrupt shift
two years ago heavy-handed utility-style regulation broadband Internet access service and return
the light-touch framework under which free and open Internet underwent rapid and unprecedented
growth for almost two decades. eliminate burdensome regulation that stifles innovation and deters
investment, and empower Americans choose the broadband Internet access service that best fits their
needs. take several actions this Order restore Internet freedom. First, end utilitystyle regulation the Internet favor the market-based policies necessary preserve the future
Internet freedom. the 2015 Title Order, the Commission abandoned almost twenty years
precedent and reclassified broadband Internet access service telecommunications service subject
myriad regulatory obligations under Title the Communications Act 1934, amended (the Act). U.S.C. 230(b)(2). See generally Telecommunications Act 1996, Pub. No. 104-104, 110 Stat.
(codified U.S.C. 151 seq.) (1996 Act).
See Protecting and Promoting the Open Internet, Docket No. 14-28, Report and Order Remand,
Declaratory Ruling, and Order, FCC Rcd 5601 (2015) (Title Order).
Federal Communications Commission
FCC-CIRC1712-04 reverse this misguided and legally flawed approach and restore broadband Internet access service
its Title information service classification. find that reclassification information service best
comports with the text and structure the Act, Commission precedent, and our policy objectives.
thus return the approach broadband Internet access service affirmed reasonable the U.S.
Supreme Court. also reinstate the private mobile service classification mobile broadband Internet
access service and return the Commission definition interconnected service that existed prior
2015. determine that this light-touch information service framework will promote investment and
innovation better than applying costly and restrictive laws bygone era broadband Internet access
service. Our balanced approach also restores the authority the nation most experienced cop the
privacy beat the Federal Trade Commission police the privacy practices Internet Service
Providers (ISPs).
Next, require ISPs transparent. Disclosure network management practices,
performance, and commercial terms service important for Internet freedom because helps
consumers choose what works best for them and enables entrepreneurs and other small businesses get
technical information needed innovate. Individual consumers, not the government, decide what
Internet access service best meets their individualized needs. return the transparency rule the
Commission adopted 2010 with certain limited modifications promote additional transparency, and eliminate certain reporting requirements adopted the Title Order that find unnecessary
and burdensome.
Finally, eliminate the Commission conduct rules. The record evidence, including
our cost-benefit analysis, demonstrates that the costs these rules innovation and investment outweigh
any benefits they may have. addition, have not identified any sources legal authority that could
justify the comprehensive conduct rules governing ISPs adopted the Title Order. Lastly, find that
the conduct rules are unnecessary because the transparency requirement adopt, together with antitrust
and consumer protection laws, ensures that consumers have means take remedial action ISP
engages behavior inconsistent with open Internet.
Through these actions, advance our critical work promote broadband deployment rural America and infrastructure investment throughout the nation, brighten the future innovation
both within networks and their edge, and move closer the goal eliminating the digital divide.
II.
BACKGROUND
Since long before the commercialization the Internet, federal law has drawn line
between the more heavily-regulated common carrier services like traditional telephone service and more
lightly-regulated services that offer more than mere transmission. More than fifty years ago, the
Commission decided Computer the first series decisions known the Computer Inquiries,
which, combination, created dichotomy between basic and enhanced services. 1980 Second
Computer Inquiry, the Commission established that basic services offered pure transmission capability
over communications path that virtually transparent terms its interaction with customer supplied
information and were regulated under Title the [Communications] Act. Enhanced services,
See Nat Cable Telecomms. Ass Brand Internet Servs., 545 U.S. 967 (2005) (Brand X).
See Preserving the Open Internet; Broadband Industry Practices, Docket No. 09-191, Docket No. 07-52,
Report and Order, FCC Rcd 17905, 17972 80, 17981, paras. 124 35, 137 (2010) (Open Internet Order).
Regulatory and Policy Problems Presented the Interdependence Computer and Communication Services,
Notice Inquiry, FCC (1966).
Amendment Section 64.702 the Commission Rules and Regulations (Second Computer Inquiry), Docket No.
20828, Final Decision, FCC 384, 420, para. (1980).
Id. 420, para. 96.
Id. 428, para. 114.
Federal Communications Commission
FCC-CIRC1712-04
contrast, were any offering over the telecommunications network which more than basic
transmission service. enhanced service, for example, computer processing applications are used
act the content, code, protocol, and other aspects the subscriber information. Unlike basic
services, the Commission found that enhanced services should not regulated under the Act.
Just two years later, the federal courts would draw similar line resolving the
government antitrust case against ATT. The Modification Final Judgment (MFJ) 1982
distinguished between telecommunications services, which Bell Operating Companies could offer when
actually regulated tariff, and information services, including data processing and other
computer-related services and electronic publishing services, which Bell Operating Companies
were prohibited from offering under the terms that court decision. The Communications Act
information service definition based the definition that same term used the Modification
Final Judgment (MFJ) antitrust decision, which governed the Bell Operating Companies after the breakup the Bell system. The MFJ distinguished between telecommunications and information services:
the Bell Operating Companies [BOCs] were provide local exchange telecommunications service, but
were forbidden provide interexchange telecommunications service information services. the Telecommunications Act 1996, intended promote competition and reduce
regulation, Congress drew line between lightly regulated information services and more heavily
regulated telecommunications services. also found that the Internet and other interactive computer
services have flourished, the benefit all Americans, with minimum government regulation
and declared the policy the United States promote the continued development the Internet and
other interactive computer services and other interactive media and preserve the vibrant and
competitive free market that presently exists for the Internet and other interactive computer services,
unfettered Federal State regulation. The 1996 Act went define interactive computer
service include any information service, system, access software provider that provides enables
computer access multiple users computer server, including specifically service system that
provides access the Internet
Id. 420, para. 97.
Id. 428, para. 114.
U.S. Am. Tel. Tel. Co., 552 Supp. 131, 228 (D.D.C. 1982) (MFJ Initial Decision), aff sub nom.
Maryland U.S., 460 U.S. 1001 (1983).
Id. 179.
Id. 180.
Id. 228.
Implementation the Non-Accounting Safeguards Section 271 and 272 the Communications Act 1934,
amended, Docket No. 96-149, First Report and Order and Further Notice Proposed Rulemaking, FCC Rcd
21905, 21954, para. (1996) (Non-Accounting Safeguards Order); see also, e.g., H.R. Conf. Rep. No. 104-458
126 (Jan. 31, 1996) Information service and telecommunications are defined based the definition used the
Modification Final Judgment.
Federal-State Joint Board Universal Service, Docket No. 96-45, Report Congress, FCC Rcd 11501,
11514, para. (1998) (Stevens Report) (citing MFJ Initial Decision, 552 Supp. 226-32).
Preamble, Telecommunications Act 1996, Pub. No. 104-104, 110 Stat. (1996). U.S.C. 153(24), (53). U.S.C. 230(a)(4). U.S.C. 230(b)(1), (2). U.S.C. 230(f)(2).
Federal Communications Commission
FCC-CIRC1712-04
For the next years, the Commission repeatedly adopted light-touch approach the
Internet that favored discrete and targeted actions over pre-emptive, sweeping regulation Internet
service providers. the 1998 Stevens Report, the Commission comprehensively reviewed the Act
definitions they applied the emerging technology the Internet and concluded that Internet access
service was properly classified information service. The Stevens Report also found that subjecting
Internet service providers and other information service providers the broad range Title
constraints, would seriously curtail the regulatory freedom that the Commission concluded Computer was important the healthy and competitive development the enhanced-services industry.
10. the 2002 Cable Modem Order, the Commission classified broadband Internet access
service over cable systems interstate information service, classification that the Supreme Court
upheld June 2005 the Brand decision. There was dispute that least some the elements
Internet access met the definition information services, and the Court rejected claims that [w]hen
consumer goes beyond those offerings and accesses content provided parties other than the cable
company that consumer uses pure transmission. the contrary, the Court found reasonable
the Commission understanding the nature cable modem service namely, that [w]hen end
user accesses third party Web site that user equally using the information service provided the
cable company that offers him Internet access when accesses the company own Web site, its email service, his personal Web page, citing examples the roles Domain Name System (DNS) and
caching.
11. 2004, then-FCC Chairman Michael Powell announced four principles for Internet
freedom further ensure that the Internet would remain place for free and open innovation with
minimal regulation. These four Internet freedoms include the freedom access lawful content, the
freedom use applications, the freedom attach personal devices the network, and the freedom
obtain service plan information.
12. the 2005 Wireline Broadband Classification Order, the Commission classified
broadband Internet access service over wireline facilities information service. the same time,
Federal-State Joint Board Universal Service, Docket No. 96-45, Report Congress, FCC Rcd 11501,
11536, para. (1998) (Stevens Report).
Id. 11524, para. 46.
See Inquiry Concerning High-Speed Access the Internet Over Cable Other Facilities; Internet Over Cable
Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access the Internet Over Cable Facilities, Docket No. 00-185, Docket No. 02-52, Declaratory Ruling and Notice Proposed Rulemaking, FCC
Rcd 4798, 4802, para. (2002) (Cable Modem Order).
Brand Internet, 545 U.S. 967.
Brand 545 U.S. 998.
Id. 998-1000.
Michael Powell, Chairman, Federal Communications Commission, Preserving Internet Freedom: Guiding
Principles for the Industry, Remarks the Silicon Flatirons Symposium (Feb. 2004),
https://apps.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf
Id.
See Appropriate Framework for Broadband Access the Internet Over Wireline Facilities al., Docket Nos.
02-33, 01-337, 95-20, 98-10, Docket Nos. 04-242, 05-271, Report and Order and Notice Proposed
Rulemaking, FCC Rcd 14853 (2005) (Wireline Broadband Classification Order), aff Time Warner Telecom,
Inc. FCC, 507 F.3d 205 (3d Cir. 2007).
Federal Communications Commission
FCC-CIRC1712-04
the Commission also unanimously endorsed the four Internet freedoms the Internet Policy Statement.
The Internet Policy Statement announced the Commission intent incorporate [these] principles into
its ongoing policymaking activities order foster creation, adoption and use Internet broadband
content, applications, services and attachments, and ensure consumers benefit from the innovation that
comes from competition.
13. the 2006 BPL-Enabled Broadband Order, the Commission concluded that broadband
Internet access service over power lines was properly classified information service, and the
2007 Wireless Broadband Internet Access Order, the Commission classified wireless broadband Internet
access service information service, again recognizing the minimal regulatory environment that
promoted the ubiquitous availability broadband all Americans. The Commission also found that
mobile wireless broadband Internet access service not commercial mobile radio service that
term defined the Act and implemented the Commission rules.
14. the 2008 Comcast-BitTorrent Order, the Commission sought directly enforce
federal Internet policy that drew from various statutory provisions consistent with the Internet Policy
Statement, finding certain actions Comcast contravene[d] federal policy significantly
imped[ing] consumers ability access the content and use the applications their choice. 2010,
the U.S. Court Appeals for the D.C. Circuit rejected the Commission action, holding that the
Commission had not justified its action valid exercise ancillary authority.
15. response, the Commission adopted the 2010 Open Internet Order, where once again
the Commission specifically rejected Title II-based heavy-handed regulation broadband Internet access
service. Instead, the Open Internet Order relied on, among other things, newly-claimed regulatory
authority under section 706 the Telecommunications Act establish no-blocking and nounreasonable-discrimination rules well requirement that broadband Internet access service
providers publicly disclose accurate information regarding the network management practices,
Appropriate Framework for Broadband Access the Internet over Wireline Facilities al., Docket No. 00185, Docket Nos. 02-33, 01-33, 98-10, 95-20, Docket No. 02-52, Policy Statement, FCC Rcd 14986
(2005) (Internet Policy Statement).
Internet Policy Statement, FCC Rcd 14988, para. The Commission did this, for example, incorporating
such principles its rules governing certain wireless spectrum. See Service Rules For the 698-746, 747-762 and
777-792 MHz Bands al., Docket No. 06-150 al., Second Report and Order, FCC Rcd 15289, 15361,
15365, paras. 194, 206 (2007).
See United Power Line Council Petition for Declaratory Ruling Regarding the Classification Broadband over
Power Line Internet Access Service Information Service, Docket No. 06-10, Memorandum Opinion and
Order, FCC Rcd 13281 (2006) (BPL-Enabled Broadband Order).
See Appropriate Regulatory Treatment for Broadband Access the Internet Over Wireless Networks, Declaratory
Ruling, FCC Rcd 5901, 5902, para. (2007) (Wireless Broadband Internet Access Order).
Id. 5916, para. 41.
Formal Complaint Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading
Peer-to-Peer Applications; Broadband Industry Practices; Petition Free Press al. for Declaratory Ruling that
Degrading Internet Application Violates the FCCs Internet Policy Statement and Does Not Meet Exception
for Reasonable Network Management, File No. EB-08-IH-1518, Docket No. 07-52, Memorandum Opinion
and Order, FCC Rcd 13028, 13052, 13054, paras. 43, (2008) (Comcast-BitTorrent Order).
Comcast Corp. FCC, 600 F.3d 642 (D.C. Cir. 2010) (Comcast). Among other things, the court held that section
706 the 1996 Act could not serve the source direct authority which the Commission action was ancillary
because the Commission was bound Comcast prior Commission determination that section 706 did not
constitute direct grant authority. Id. 658-59.
Open Internet Order, FCC Rcd 17905, 17972-80, 17981, paras. 124-35, 137.
Federal Communications Commission
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performance, and commercial terms its broadband Internet access services.
16. 2014, the D.C. Circuit vacated the no-blocking and no-unreasonable-discrimination
rules adopted the Open Internet Order, finding that the rules impermissibly regulated broadband
Internet access service providers common carriers,40 conflict with the Commission prior
determination that broadband Internet access service was not telecommunications service and that
mobile broadband Internet access service was not commercial mobile service.41 The D.C. Circuit
nonetheless upheld the transparency rule, held that the Commission had reasonably construed section
706 the Telecommunications Act grant authority regulate broadband Internet access service
providers, and suggested that no-blocking and no-unreasonable-discrimination rules might permissible Internet service providers could engage individualized bargaining.
17.
Later that year, the Commission embarked yet again down the path rulemaking,
proposing rely section 706 the Telecommunications Act adopt enforceable rules using the D.C.
Circuit roadmap. But November 2014, then-President Obama called the FCC reclassify
consumer broadband service under Title the Telecommunications Act. Three months later, the
Commission shifted course and adopted the Title Order, reclassifying broadband Internet access service
from information service telecommunications service, and reclassifying mobile broadband
Internet access service commercial mobile service.47 The Commission also adopted no-blocking, nothrottling, and no-paid-prioritization rules, well general Internet conduct standard and
enhancements the transparency rule.48 2016, divided panel the D.C. Circuit upheld the Title
Order United States Telecom Ass FCC, concluding that the Commission classification
broadband Internet access service was permissible under Chevron step two. The D.C. Circuit denied
petitions for rehearing the case banc, and petitions for certiorari remain pending with the Supreme
Court.
18. May 2017, adopted Notice Proposed Rulemaking (Internet Freedom NPRM),
Id. 17992 (Appendix A).
Verizon FCC, 740 F.3d 623, 655-58 (D.C. Cir. 2014) (Verizon).
Id. 650.
Id. 635 42.
See, e.g., id. 657 (quoting Cellco Partnership FCC, 700 F.3d 534, 549 (D.C. Cir. 2012)).
Protecting and Promoting the Open Internet, Docket No. 14-28, Notice Proposed Rulemaking, FCC
Rcd 5561 (2014) (2014 Notice).
President Obama, Statement Net Neutrality (Nov. 10, 2014), https://obamawhitehouse.archives.gov/the-pressoffice/2014/11/10/statement-president-net-neutrality.
Protecting and Promoting the Open Internet, Docket No. 14-28, Report and Order Remand, Declaratory
Ruling, and Order, FCC Rcd 5601 (2015) (Title Order).
Id. 5778, para. 388.
Id. 5607-09, paras. 15-24.
United States Telecom Ass FCC, 825 F.3d 674 (D.C. Cir 2016) (USTelecom).
United States Telecom Ass FCC, No. 15-1063, 2017 1541517, (D.C. Cir. May 2017) (stating that
[e]n banc review would particularly unwarranted this point light the uncertainty surrounding the fate
the FCC Order
Petition for Writ Certiorari, U.S. Telecom Ass 825 F.3d 674 (No. 17-504).
See Restoring Internet Freedom, Notice Proposed Rulemaking, FCC Rcd 4434 (2017) (Internet Freedom
NPRM).
Federal Communications Commission
FCC-CIRC1712-04 which proposed return the successful light-touch bipartisan framework that promoted free
and open Internet and, for almost twenty years, saw flourish. Specifically, the Internet Freedom NPRM
proposed reinstate the information service classification broadband Internet access service. The
Internet Freedom NPRM also proposed reinstate the determination that mobile broadband Internet
access service not commercial mobile service.53 determine how best honor the Commission
commitment restoring the free and open Internet, the Internet Freedom NPRM also proposed reevaluate the Commission existing rules and enforcement regime analyze whether ante regulatory
intervention the market necessary. Specifically, the Internet Freedom NPRM proposed eliminate
the Internet conduct standard and the non-exhaustive list factors intended guide application that
rule. also sought comment whether keep, modify, eliminate the bright-line conduct and
transparency rules.
III.
ENDING PUBLIC-UTILITY REGULATION THE INTERNET
19. reinstate the information service classification broadband Internet access service,
consistent with the Supreme Court holding Brand Based the record before us, conclude
that the best reading the relevant definitional provisions the Act supports classifying broadband
Internet access information service. Having determined that broadband Internet access service,
regardless whether offered using fixed mobile technologies, information service under the Act, also conclude that information service, mobile broadband Internet access service should not
classified commercial mobile service its functional equivalent. find that well within our
legal authority classify broadband Internet access service information service, and reclassification
also comports with applicable law governing agency decisions change course. While find our legal
analysis sufficient its own support information service classification broadband Internet access
service, strong public policy considerations further weigh favor information service classification.
Below, find that economic theory, empirical data, and even anecdotal evidence also counsel against
imposing public-utility style regulation ISPs. The broader Internet ecosystem thrived under the lighttouch regulatory treatment Title with massive investment and innovation both ISPs and edge
providers, leading previously unimagined technological developments and services. conclude that return Title classification would facilitate critical broadband investment and innovation removing
regulatory uncertainty and lowering compliance costs.
Reinstating the Information Service Classification Broadband Internet Access
Service
Scope
20. continue define broadband Internet access service mass-market retail
service wire radio that provides the capability transmit data and receive data from all
Id. 4453, para. 55.
Id. 4458, para. 70.
Id. 4458, para. 72.
Id. 4460, para. 76, 4461-64, paras. 80-91.
Brand 545 U.S. 980. mass market, mean services marketed and sold standardized basis residential customers, small
businesses, and other end-user customers such schools and libraries. Schools would include institutions
higher education the extent that they purchase these standardized retail services. For purposes this definition,
mass market also includes broadband Internet access service purchased with the support the E-rate and Rural
Healthcare programs, well any broadband Internet access service offered using networks supported the
Connect America Fund (CAF), but does not include enterprise service offerings special access services, which are
typically offered larger organizations through customized individually negotiated arrangements. See Open
Internet Order, FCC Rcd 17932, para. 45; Title Order, FCC Rcd 5745-46, para. 336, n.879.
Federal Communications Commission
FCC-CIRC1712-04
substantially all Internet endpoints, including any capabilities that are incidental and enable the
operation the communications service, but excluding dial-up Internet access service.
21.
The term broadband Internet access service includes services provided over any
technology platform, including but not limited wire, terrestrial wireless (including fixed and mobile
wireless services using licensed unlicensed spectrum), and satellite. For purposes our discussion, divide the various forms broadband Internet access service into the two categories fixed and
mobile. With these two categories services fixed and mobile intend cover the entire
universe Internet access services issue the Commission prior broadband classification
decisions, well all other broadband Internet access services offered over other technology
platforms that were not addressed prior classification orders. also make clear that our
classification finding applies all providers broadband Internet access service, delineate them
here, regardless whether they lease own the facilities used provide the service.61 Fixed
broadband Internet access service refers broadband Internet access service that serves end users
primarily fixed endpoints using stationary equipment, such the modem that connects end user
home router, computer, other Internet access device the Internet. The term encompasses the
delivery fixed broadband over any medium, including various forms wired broadband services (e.g.,
cable, DSL, fiber), fixed wireless broadband services (including fixed services using unlicensed
spectrum), and fixed satellite broadband services. Mobile broadband Internet access service refers
broadband Internet access service that serves end users primarily using mobile stations. Mobile
broadband Internet access includes, among other things, services that use smartphones mobilenetwork-enabled tablets the primary endpoints for connection the Internet. The term also
encompasses mobile satellite broadband services.
22. the Commission found 2010, broadband Internet access service does not include
services offering connectivity one small number Internet endpoints for particular device, e.g.,
connectivity bundled with e-readers, heart monitors, energy consumption sensors, the extent the
service relates the functionality the device.65 the extent these services are provided ISPs over
last-mile capacity shared with broadband Internet access service, they would non-broadband Internet
access service data services (formerly specialized services). the Commission found both 2010 and
2015, non-broadband Internet access service data services not fall under the broadband Internet access
service category. Such services generally are not used reach large parts the Internet; are not CFR 8.11(a); Open Internet Order, FCC Rcd 17932, para. 44; id. 17935, para. (finding that the
market and regulatory landscape for dial-up Internet access service differed from broadband Internet access service).
See Wireless Broadband Internet Access Order, FCC Rcd 5909-10, paras. 19, 22; Cable Modem Declaratory
Ruling, FCC Rcd 4818-19, para. 31; Wireline Broadband Classification Order, FCC Rcd 14860, para.
BPL-Enabled Broadband Order, FCC Rcd 13281. the Supreme Court observed Brand the relevant definitions not distinguish facilities-based and nonfacilities-based carriers. Brand 545 U.S. 997.
Open Internet Order, FCC Rcd 17934, para. 49; Title Order, FCC Rcd 5683, para. 188.
See U.S.C. 153(34); Open Internet Order, FCC Rcd 17934, para. 49. note that public safety services defined section 337(f)(1) would not meet the definition broadband
Internet access service subject the rules herein given that such services are not made commercially available
the public the provider mass-market retail service. U.S.C. 337(f)(1).
See 2010 Open Internet Order, FCC Rcd 17933, para. 47. See id. 17933, n.149.
Open Internet Order, FCC Rcd 17965-66, paras. 112-13; Title Order, FCC Rcd 5696, para. 207; see
also Illinois DoIT Comments 1-2 believe important highlight this distinction between BIAS and nonBIAS data services allow development innovative business models that address consumer needs, that are not
met through standard BIAS offering.
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FCC-CIRC1712-04
generic platform, but rather specific applications-level service; and use some form network
management isolate the capacity used these services from that used broadband Internet access
services. Further, observe that the extent ISPs use their broadband infrastructure provide
video and voice services, those services are regulated their own right.
23.
Broadband Internet access service also does not include virtual private network (VPN)
services, content delivery networks (CDNs), hosting data storage services, Internet backbone
services (if those services are separate from broadband Internet access service), consistent with past
Commission precedent. The Commission has historically distinguished these services from mass
market services, they not provide the capability transmit data and receive data from all
substantially all Internet endpoints.70 not disturb that finding here.
24.
Finally, observe that the extent that coffee shops, bookstores, airlines, private enduser networks such libraries and universities, and other businesses acquire broadband Internet access
service from broadband provider enable patrons access the Internet from their respective
establishments, provision such service the premise operator would not itself considered
broadband Internet access service unless was offered patrons retail mass market service,
define here. Likewise, when user employs, for example, wireless router Wi-Fi hotspot
create personal Wi-Fi network that not intentionally offered for the benefit others, she not
offering broadband Internet access service, under our definition, because the user not marketing and
selling such service residential customers, small business, and other end-user customers such
schools and libraries.
Broadband Internet Access Service Information Service Under the Act
25. deciding how classify broadband Internet access service, find that the best
reading the relevant definitional provisions the Act supports classifying broadband Internet access
service information service. Section the Act defines information service the offering capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, making
available information via telecommunications, and includes electronic publishing, but does not include
any use any such capability for the management, control, operation telecommunications system the management telecommunications service. Section defines telecommunications
service, contrast, the offering telecommunications for fee directly the public, such
classes users effectively available directly the public, regardless the facilities used.
Finally, Section defines telecommunications used each the prior two definitions the
transmission, between among points specified the user, information the user choosing,
without change the form content the information sent and received. Prior the Title
Order the Commission had long interpreted and applied these terms classify various forms Internet
access service information services conclusion affirmed reasonable the Supreme Court
Title Order, FCC Rcd 5697, para. 209.
Cox Comments 33.
2010 Open Internet Order, FCC Rcd 17933, para. 47.
Id. Consistent with past Commissions, note that the rules adopt today apply only far the limits
ISP control over the transmission data from its broadband customers.
See 2010 Open Internet Order, FCC Rcd 17935, para. 52. Although not bound the rules adopt today, encourage premise operators disclose relevant restrictions broadband service they make available their
patrons. See id. 17936, para. 163. U.S.C. 153(24). U.S.C. 153(53). U.S.C. 153(50).
Federal Communications Commission
FCC-CIRC1712-04
Brand Our action here simply returns that prior approach.
26.
When interpreting statute administers, the Commission, like all agencies, must
operate within the bounds reasonable interpretation. And reasonable statutory interpretation must
account for both the specific context which language used and the broader context the
statute whole. Below, first explore the meaning the capability contemplated the
statutory definition information service, and find that broadband Internet access service provides
consumers the capability engage all the information processes listed the information service
definition. also find that broadband Internet access service likewise provides information processing
functionalities itself, such DNS and caching, which satisfy the capabilities set forth the information
service definition. then address what capabilities believe are being offered ISPs, and
whether these are reasonably viewed separate from inextricably intertwined with transmission, and
find that broadband Internet access service offerings inextricably intertwine these information processing
capabilities with transmission.
27. find that applying our understanding the statutory definitions broadband Internet
access service offered today most soundly leads the conclusion that information service.
Although the Internet marketplace has continued develop the years since the earliest classification
decisions, broadband Internet access service offerings still involve number capabilities within the
meaning the Section definition information services, including critical capabilities that all ISP
customers must use for the service work does today. While many popular uses the Internet
have shifted over time, the record reveals that broadband Internet access service continues offer
information service capabilities that typical users both expect and rely upon. Indeed, the basic nature
Internet service [p]rovid[ing] consumers with comprehensive capability for manipulating information
using the Internet via high-speed telecommunications has remained the same since the Supreme Court
upheld the Commission similar classification cable modem service information service twelve
years ago.
28. body precedent from the courts and the Commission served the backdrop for the
1996 Act and informed the Commission original interpretation and implementation the statutory
definitions telecommunications, telecommunications service, and information service. The
classification decisions the Title Order discounted ignored much that precedent. Without
viewing ourselves formally bound that prior precedent, find eminently reasonable, legal
matter, give significant weight that pre-1996 Act precedent resolving how the statutory definitions
apply broadband Internet access service, enabling resolve statutory ambiguity manner that
believe best reflects Congress understanding and intent.
Brand 545 U.S. 998 (finding reasonable the Commission understanding the nature cable modem
service and affirming its classification information service).
Utility Air Regulatory Group EPA, 134 Ct. 2427, 2442 (2014).
Brand 545 U.S. 987.
Our analysis thus not odds with the statement USTelecom that the 1996 Act definitions were not intended freeze place the Commission existing classification various services. U.S. Telecom Ass FCC, 825
F.3d 674, 703 (D.C. Cir. 2016) (USTelecom); see also, e.g., Free Press Reply (arguing that the Commission
should not base its current judgments solely analogies proceedings from the Bell era
See, e.g., Global Crossing Telecomms., Inc. Metrophones Telecomms., Inc., 550 U.S. 45, (2007) [R]egulatory history helps illuminate the proper interpretation and application the provisions the Act
issue there); Brand 545 U.S. 992-93 Congress passed the definitions the Communications Act against the
background [the Commission Computer Inquiries] regulatory history, and may assume that the parallel
terms telecommunications service and information service substantially incorporated their meaning, the
Commission has held ADTRAN Comments This precedent relevant not simply stare decisis, but
because the Commission those previous decisions had analyzed the facts, nature the services, and the
(continued
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Broadband Internet Access Service Information Processing
Capabilities
29. begin evaluating the information service definition and conclude that
encompasses broadband Internet access service. Broadband Internet access service includes
capabilit[ies] meeting the information service definition under range reasonable interpretations
that term. other contexts, the Commission has looked dictionary definitions and found the term
capability broad and expansive, including the concepts potential ability and the capacity used, treated, developed for particular purpose. Because broadband Internet access service
necessarily has the capacity potential ability used engage the activities within the
information service definition generating, acquiring, storing, transforming, processing, retrieving,
utilizing, making available information via telecommunications conclude that best
understood have those capabilit[ies]. The record reflects that fundamental purposes broadband
Internet access service are for its use generating and making available information others, for
example through social media and file sharing; acquiring and retrieving information from sources
such websites and online streaming and audio applications, gaming applications, and file sharing
applications; storing information the cloud and remote servers, and via file sharing applications;
(Continued from previous page)
legislative interplay and history conclude that BIAS information service. ACA Comments 44.
Consistent with this approach traditional tool statutory interpretation, reject arguments insofar they
suggest that should disregard this precedent largely out-of-hand. See, e.g., Free Press Reply [T]he MFJ
and Computer Inquiries were based large part the Commission interpretation its own rules and authority,
but the passage the 1996 Act superseded them. Public Knowledge Reply [T]he 1996
Telecommunications Act supersedes the MFJ. More generally, course, this precedent, and Brand
particular, demonstrate that the Act does not unambiguously compel telecommunications service classification.
See U.S. Telecom Ass FCC, 855 F.3d 381, 384 (D.C. Cir. 2017) (Srinivasan, J., and Tatel, J., concurring the
denial rehearing banc) The issue Brand was whether the Communications Act compelled the FCC
classify cable broadband ISPs telecommunications providers subject regulatory treatment common carriers.
The Court answered that question no.
Review the Section 251 Unbundling Obligations Incumbent Local Exchange Carriers, al., Docket Nos.
01-338, 98-147, 96-98, Report and Order and Order Remand and Further Notice Proposed Rulemaking,
FCC Rcd 16978, 17020, para. n.194 (2003), rev other grounds U.S. Telecom Ass FCC, 359 F.3d 554
(D.C. Cir. 2004). U.S.C. 153(24); see also, e.g., ATT Comments (asserting that broadband Internet access service
qualifies under each the eight, independent parts the statutory definition that term Comcast Comments
12; Verizon Comments 35; Charter Comments 14; NCTA Comments 13; Reason Foundation Comments ADTRAN 5-6; Alaska Communications Comments ACA Comments 50-51; CenturyLink Comments
20; CTIA Comments 28-29; Free State Foundation Comments ITIF Comments 12-13; Inmarsat Comments 9-10; LGBT Technology Partnership Comments Mobile Future Comments 10-11; T-Mobile Comments
13; ATT Reply 60; Comcast Reply 4-6; CTIA Reply 22; Free State Foundation Comments 10; Cox
Reply Comments
See, e.g., ACA Exhibit Declaration Chris Kyle ACA Exhibit Declaration Brian Lynch ACA
Exhibit Declaration Steve Timcoe Cisco Comments 14, n.43; Mobile Future Comments 10-11;
CenturyLink Comments 23; Cisco Comments 14, n.43; Free State Foundation Comments 10; Mobile Future
Comments 11; Verizon Comments 35; Comcast Comments 13; Cox Comments
See, e.g., Cisco Comments 14, n.43; Free State Foundation Comments 10; Mobile Future Comments 1011; ADTRAN Comments 5-6; Free State Foundation Comments 10; Mobile Future Comments 10-11;
CenturyLink Comments 21-22; Verizon Comments 35; CenturyLink Comments 23; Comcast Comments
12; Cox Comments NCTA Comments 13-14.
See, e.g., Verizon Comments 35; CenturyLink Comments 23; Cisco Comments 14, n.43; Comcast
Comments 13; Cox Comments Free State Foundation Comments 10; Mobile Future Comments 10-11;
NCTA Comments 13-14.
Federal Communications Commission
FCC-CIRC1712-04
transforming and processing information such manipulating images and documents, online
gaming use, and through applications that offer the ability send and receive email, cloud computing and
machine learning capabilities; and utilizing information interacting with stored data.86 These are
just few examples how broadband Internet access service enables customers generate, acquire,
store, transform, process, retrieve, utilize, and make available information. These are not merely
incidental uses broadband Internet access service rather, because not only has the capacity
used for these particular purpose[s] but was designed and intended so, find that broadband
Internet access best interpreted providing customers with the capability for such interactions with
third party providers.
30. also find that broadband Internet access information service irrespective
whether provides the entirety any end user functionality whether provides end user functionality tandem with edge providers. not believe that Congress intended the classification question
turn analysis which capabilities the end user selects, which could change over time. Further,
are unpersuaded commenters who assert that order considered information service,
ISP must not only offer customers the capability for interacting with information that may offered
third parties click-through but must also provide the ultimate content and applications themselves.
Although there dispute that many edge providers likewise perform functions facilitate information
processing capabilities, they all depend the combination information-processing and transmission
that ISPs make available through broadband Internet access service. The fundamental purpose
See, e.g., ACA Exhibit Declaration Chris Kyle ACA Exhibit Declaration Brian Lynch ACA
Exhibit Declaration Steve Timcoe (asserting that their broadband Internet access services grants their
customers the capability transform content their request); Cisco Comments 14, n.43 (asserting that
broadband Internet access users transform and process information every time they input plaintext command into
browser search engine); Cox Comments Mobile Future Comments 10-11; CenturyLink Comments 2224; Free State Foundation Comments 10; Verizon Comments 35; Comcast Comments 13.
See, e.g., CenturyLink Comments 21- 22; Cisco Comments 14, n.43; Comcast Comments 13; Cox
Comments Free State Foundation Comments 10; Mobile Future Comments 11; NCTA Comments 1314.
Review the Section 251 Unbundling Obligations Incumbent Local Exchange Carriers, al., FCC Rcd
17020, para. 194 (discussing definition capability
ATT Comments Giving consumers the capability for such interactions with third party providers
course the very essence broadband Internet access. see also NCTA Comments 13. further observe that
even though the record reflects that broadband Internet access service possesses all the statutorily enumerated
capabilities, the use the conjunction among the listed capabilities requires that service only offer one
capability bring service within the statutory definition information service. See Comcast Comments 19;
Free State Foundation Comments 10, 12.
See NCTA Reply
See Public Knowledge Comments 27; Internet EngineersComments 20-21; CDT Comments see also
OTI New America Comments 29-30 (asserting that when information service was defined the MFJ, the
phrase meant that the information service provider itself engaged the processing the information [but] the
examples listed the NPRM are not that, and [i]f telecommunications service were transformed into
information service because made available the information services others, then general use service could
ever constitute telecom service. (emphasis original)); Peha Reclassification Comments Ben Kreuter
Comments New Media Rights Comments Netflix Reply
Cf., e.g., Mitchell Lazarus Comments Examples are Facebook, Wikipedia, and almost any other website.
See Comcast Comments When consumer uploads new content Facebook, for instance, not only
Facebook that provides the information-processing functionality necessary for such activity; also the BIAS
provider whose information-processing capabilities enable consumers connect and interact with Facebook
servers the first place.
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FCC-CIRC1712-04
broadband Internet access service enable constant flow computer-mediated communications
between end-user devices and various servers and routers facilitate interaction with online content.
31.
From the earliest decisions classifying Internet access service, the Commission
recognized that even when ISPs enable subscribers access third party content and services, that can
constitute capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, making available information via telecommunications. the Commission explained the Stevens
Report, [s]ubscribers can retrieve files from the World Wide Web, and browse their contents, because
their service provider offers the capability for acquiring, retrieving [and] utilizing
information. Thus, even where ISP enables end-users access the content applications
third party, the Commission nonetheless found that constituted the requisite information services
capability. When the Title Order attempted evaluate customer perception based their usage
broadband Internet access service, failed persuasively grapple with the relevant implications prior
Commission classification precedent. The Title Order argued that broadband Internet access service
primarily used access content, applications, and services from third parties unaffiliated with the ISP support the view that customers perceive separate offering telecommunications.97 The Title
NCTA Reply see also Free State Foundation Reply (explaining that ISPs coordination with third
parties, itself, does not alter the nature the functionality service that broadband ISPs ultimately offer end
users. such circumstances, the broadband ISPs that combine third-party supplied functionalities with their
own and ultimately provide the integrated service offering end users with end users routinely unaware
whether which particular functions might happen performed third parties rather than broadband ISPs
infra para. 56.
See, e.g., Wireless Broadband Internet Access Order, FCC Rcd 5910, para. 25; BPL-Enabled Broadband
Order, FCC Rcd 13285-86, para. Wireline Broadband Classification Order, FCC Rcd 14860-61,
para. Cable Modem Order, FCC Rcd 4821-22, para. 37; Stevens Report, FCC Rcd 11537, para. 76.
Stevens Report, FCC Rcd 11538, para. (emphasis added); see also id. 11538-39, para. (explaining
with specific respect e-mail that the ISP does not send that message directly the recipient akin
paperless fax, but instead sends the recipient mail server, which stores until further stored, rewritten,
forwarded otherwise processed). Attempts distinguish the Commission classification precedent thus are
unfounded insofar they fail account for this aspect the Commission analysis those orders. See, e.g.,
Scott Jordan Reply The Stevens Report concluded that dial-up Internet access service was information
service because ISP-provided webpage hosting, webpage caching, and email offered such capabilities, not because
dial-up Internet access service enabled end user utilize third party information service applications. (footnotes
omitted)).
See, e.g., ACA Comments [O]ffering capability for engaging all these activities such using
Facebook YouTube exactly what provided broadband Internet access (quoting U.S. Telecom Ass
FCC, 855 F.3d 381, 395 (D.C. Cir. 2017) (Brown, J., dissenting from denial rehearing banc) and citing Stevens
Report, FCC Rcd 11537-38, para. 76); ATT Comments 69-70 the Commission and Solicitor General
explained Brand Internet access inherently offers the capability click[] through third-party websites and
obtain the contents the requested web page[], allowing subscriber interact[] with stored data. The
Commission reclassification decision erroneously turned this point its head, finding that Internet access
pure transmission service because useful consumers today primarily conduit for reaching modular
content, applications, and services that are provided unaffiliated third parties. the contrary, precisely
because Internet access useful consumers for these purposes that falls squarely within the statutory definition information service. USTelecom Comments 31-32; Comcast Reply [T]he definition information
service nowhere requires that ISP capabilities solely responsible for any end-user functionality; requires only
that ISPs offer integrated capability beyond mere transmission, which they unquestionably do. Cox Reply 5-6; NCTA Reply 6-7; Verizon Reply 32, 34.
See, e.g., Title Order, FCC Rcd 5753-55, paras. 347-50; see also USTelecom, 825 F.3d 698-99; AARP
Comments 91; Atty General al. Comments 13-15; Internet Engineers Comments 13; OTI New America
Comments 28; Public Knowledge Comments 31-32, 39; RISE Stronger Comments 15-16; EFF Comments
17-19; OTI New America Reply 18-19.
Federal Communications Commission
FCC-CIRC1712-04 Order offers explanation why its narrower view capability was more reasonable than the
Commission previous, long-standing view (other than seeking advance the classification outcome
that Order was driving towards). Consequently, the Title Order essentially assumed away the legal
question whether end-users perceive broadband Internet access service offering them the capability
for acquiring, retrieving [and] utilizing information under the broader reading capability prior Commission precedent.
32.
But even capability were understood requiring more the information processing performed the classified service itself, find that broadband Internet access service meets that
standard. Not only ISPs offer end users the capability interact with information online each and
every one the ways set forth above, they also through variety functionally integrated
information processing components that are part and parcel the broadband Internet access service
offering itself. particular, conclude that DNS and caching functionalities, well certain other
information processing capabilities offered ISPs, are integrated information processing capabilities
offered part broadband Internet access service consumers today. 100
33.
DNS. find that Domain Name System (DNS) indispensable functionality
broadband Internet access service. 101 DNS core function broadband Internet access service that
involves the capabilities generating, acquiring, storing, transforming, processing, retrieving, utilizing
and making available information. 102 DNS used facilitate the information retrieval capabilities that
See, e.g., CenturyLink Comments 24; ATT Comments But even ISPs had provide dataprocessing data storage functionalities their own before Internet access could qualify information
service, Internet access would still qualify such because invariably includes such functionalities (e.g., DNS
and/or caching). Comcast Comments 7-8 Not only does BIAS still offer end users the capability interact
with information online each and every one the ways set forth the Act information service definition,
also does through variety functionally integrated information-processing components such Domain
Name Service DNS functionalities; spam, malware, and other consumer protection security features; caching;
email; storage; and other capabilities that are part and parcel the offer broadband service and that confirm
the correctness the information service classification. addition DNS and caching, the record reflects that ISPs may also offer variety additional features that
consist information processing functionality inherently intertwined with the underlying service. See, e.g.,
CenturyLink Comments 26. These additional features include, and are not limited to: email, speed test servers,
backup and support services, geolocation based advertising, data storage, parental controls, unique programming
content, spam protection, pop-up blockers, instant messaging services, on-the-go access Wi-Fi hotspots, various
widgets, toolbars, and applications. See, e.g., CenturyLink Comments 24-26; ATT Comments 80-81. While not find the offering these information processing capabilities determinative the classification
broadband Internet access service, their inclusion the broadband Internet access service and the capabilities, and
functionalities necessary make these features possible, further support the information service classification.
See CTIA Comments 40; ATT Reply The additional functionalities offered most ISPs are plainly
information services, and because they are routinely offer[ed] with Internet access part service bundle, they
independently compel information service classification (citation omitted)); Comcast Comments 7-8;
CenturyLink Comments 24.
100
See Peha Reclassification Comments not relevant which services were offered used decades ago. the Internet services and technology 2017 that matter. cf. Commercial Network Services Comments The definition information service was created the telecommunications act 1996, time when
CompuServe, America Online and Prodigy were how America spent their time online and all were accessed
dial-up telephone modem company. ACLU/EFF Reply 13; OTI New America Reply
101
While accept that DNS not necessary for transmission, reject assertions that not indispensable the
broadband Internet access service customers use and expect today. See, e.g., Peha Reclassification Comments
13, 18; CDT Comments 8-9; ITIF Comments 13.
102
See Nominum Comments Sandvine Comments (explaining that such servers generate recursive DNS
queries, acquire and store domain name information, transform and process end user queries, retrieve domain name
data from the Internet, utilize domain name data, and make available information various types that stored
(continued
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are inherent Internet access. 103 DNS allows click through access from one web page another, and
its computer processing functions analyze user queries determine which website (and server) would
respond best the user request. 104 Because translates human language (e.g., the name website)
into the numerical data (i.e., address) that computers can process, indispensable ordinary
users they navigate the Internet. 105 Without DNS, consumer would not able access website typing its advertised name (e.g., fcc.gov cnn.com). 106 The Brand Court recognized the
importance DNS, concluding that [f]or Internet user, DNS must. [N]early all the
Internet network services use DNS. That includes the World Wide Web, electronic mail, remote
terminal access, and file transfer. 107 While ISPs are not the sole providers DNS services, 108 the vast
majority ordinary consumers rely upon the DNS functionality provided their ISP, 109 and the absence ISP-provided DNS would fundamentally change the online experience for the consumer. 110 also
(Continued from previous page)
the DNS); ATT Comments (expressing DNS provides ISPs with data-processing and data storage
functionalities its own).
103
See CTIA Comments 39; ATT Comments 74-75.
104
ATT Comments 74.
105
ATT Comments (citations omitted); see also Reason Foundation Comments 9-10 DNS
fundamental importance the functionality the Internet, enabling users devices, though web browsers, search
engines and other tools, identify and connect websites and web pages. Eliminating DNS would likely
dramatically reduce the value the entire domain naming system, harming both providers content and services
and users that content and those services.
106
ATT Comments 74-75; see also Farsight Comments (explaining that With the Domain Name System,
you able easily get Google just typing google.com. Without the Domain Name System you have
remember and enter numeric IPv4 address such 172.217.7.228, or, even worse, IPv6 address such
2607:f8b0:4004:802::2004. This would fundamentally (and negatively) change broadband Internet user online
experience. Fred Baker Comments Sandvine Comments Cox Comments 11; Wireline Broadband
Classification Order, FCC Rcd 14864, para. [A]n end user wireline broadband Internet access service
cannot reach third party web site without access the Domain Nam[e] Service (DNS) capability. The end
user therefore receives more than transparent transmission whenever she accesses the Internet. see also
Brand 545 U.S. 999; ATT Comments find any content the Internet, they would have know
the address the server where that content located. Consumers also could not access web page clicking hypertext link. Nominum Reply Comments
107
Brand 545 U.S. 999; see also ATT Comments (quoting Brand 545 U.S. 998, 1000).
108
See, e.g., IEP Comments 26; Commercial Network Services Comments Atkins Comments 1-2; David Comments Benjamin Kreuter
109
See, e.g., Nominum Reply Comments [A]pproximately percent consumers receive their DNS service
through their ISP broadband offering. This sky-high adoption and reliance the DNS service provided
ISPs, particularly when there are other alternatives the market, many which are free, indicates that consumers
want and expect their broadband service include DNS. Much consumers expect purchase car with
steering wheel and tires, consumers expect turnkey broadband service from their ISPs and that includes DNS
services.
110
See, e.g., Farsight Comments Charter Comments 14-15 (explaining that DNS more than merely
incidental the broadband internet service that ISPs provide, and that without DNS, broadband Internet access
would cease exist resemble the seamless information retrieval service which customers have become
accustomed); Sandvine Comments Yes, correct that for the overwhelming majority customers, the ISP performing the DNS function. rare customer the United States that knows how manually change their
DNS settings, takes time so, and does all their many connected devices. ATT Comments
(asserting that [v]irtually all consumers today rely their broadband ISP include DNS look-up functionality integral part broadband Internet access service and that [m]ass-market consumers would find broadband
services without DNS utterly useless for accessing the Internet Satchell Comments DNS very useful
the customer. The use names instead numbers key the acceptance the Web the general public.
(continued
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observe that DNS, used today, provides more than functionally integrated address-translation
capability, but also enables other capabilities critical providing functional broadband Internet access
service the consumer, including for example, variety underlying network functionality information
associated with name service, alternative routing mechanisms, and information distribution. 111
34.
The treatment similar functions MFJ precedent bolsters our conclusion. 112
particular, when analyzing gateway functionalities which BOCs would provide end-users with access third party information services, the MFJ court found that address translation, which enabled the
consumer [to] use abbreviated code signal order access the information service provider
such through the translation mnemonic code into [a] telephone number, rendered gateways
information service. 113 The address translation gateway function appears highly analogous the DNS
function broadband Internet access service, which enables end users use easier-to-remember domain
(Continued from previous page)
Without DNS, the Internet would not ubiquitous today. see also Sandvine Comments ISP DNS
servers tend superior 3rd party DNS servers simply because they reside within the ISP network and are
distributed much more widely and locally than 3rd party DNS servers, which tend centralized just few
datacenters serve the entire U.S. result, queries 3rd party DNS may traverse large section the
country get 3rd party DNS. the industry knows, the trend towards more locally distributed content and
services; the closer they are the end user the better the performance will be.
111
See CenturyLink App. Bronsdon Decl. 7-8 (asserting that DNS enables other capabilities critical
providing functional broadband Internet access service the consumer including for example, variety
underlying network functionality information such name service (NS), mail exchange (MX) and service (SRV)
records; mechanisms, such canonical name (CNAME), delegation name (DNAME), and pointer (PTR) records
for selecting alternative routes information; and facilitating information distribution content delivery systems);
Cox Comments 10, 11; Comcast Comments 15-16; Farsight Comments DNS widely used more than
just addressing scheme.
112
Despite the fact that the telecommunications management exception (and information service definition more
broadly) was drawn most directly from the MFJ, the Title Order essentially ignored MFJ precedent when
concluding that DNS fell within the statutory telecommunications management exception. See generally Title
Order, FCC Rcd 5765-69, 5770, paras. 365-69, 371; see also, e.g., INCOMPAS Comments 54-55 (arguing
that finding DNS fall within the telecommunications management exception keeping with Computer
cf. id. [A]s Justice Scalia argued, DNS scarcely more than routing information, which expressly
excluded from the definition information service the telecommunications systems management exception set
out the last clause section 3(24) the Act. NASUCA Comments 16; OTI New America Comments
29-30. addition, even the Title Order limited use Computer Inquiries precedent focused mostly
relatively high-level Commission statements about the general sorts capabilities that could basic (or adjunct-tobasic) drew analogies specific holdings that are best ambiguous their application broadband Internet
access service. See, e.g., Title Order, FCC Rcd 5768-69, 5771-72, paras. 367, 373, 375; see also, e.g.,
Barbara van Schewick and Patrick Leerssen Reply 29-31 (citing general statements Computer Inquiries
precedent regarding data processing features necessary for the operation packet-switched network
113
U.S. West. Elec. Co., Inc., 673 Supp. 525, 593 n.307 (D.D.C. 1987) (MFJ Initial Gateway Decision), aff part and rev part other grounds, 900 F.3d 283 (D.C. Cir. 1990). recognize that gateway
functionalities and broadband Internet access service are not precisely coextensive scope. See, e.g., Public
Knowledge Reply (arguing that broadband internet does not provide, for example, billing management for
all the edge services that users access, introductory information content do, however, find similarities
between functionalities such address translation and storage and retrieval key functionalities provided ISPs part broadband Internet access service, and conclude the court found such gateway and similar
functionalities independently sufficient warrant information service classification under the MFJ. See, e.g.,
U.S. West. Elec. Co., 714 Supp. 19-20 (D.D.C. 1988) (MFJ Gateway/Storage Retrieval Decision)
(analyzing storage and retrieval separately from other gateway functionalities); MFJ Initial Gateway Decision, 673 Supp. 587 275 (observing that the transmission information services issue there involves number
functions that any fair reading the term information services would included that definition MFJ
Initial Gateway Decision, 673 Supp. 593 307.
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names initiate access the associated addresses edge providers. That MFJ precedent, neglected the Title Order, thus supports our finding that the inclusion DNS broadband Internet access
service offerings likewise renders that service information service.114
35. thus find that the Title Order erred finding that Domain Name System (DNS)
functionalities fell within the telecommunications systems management exception the definition
information service. 115 That exception from the statutory information service definition was drawn
from the language the MFJ, 116 and was understood directed internal operations, not services
for customers end users. 117 interpret the concepts management, control, operation 118 the
telecommunications management exception consistent with that understanding. Applying that
interpretation, find the record reflects that little nothing the DNS look-up process designed
help ISP manage its network; instead, DNS functionalities provide stored information end users help them navigate the Internet. 119 ATT explains: When end user types domain name into
his her browser and sends DNS query ISP, the ISP converts the human-language domain
name into numerical address, and then conveys that information back the end user [who] (via
his her browser) thereafter sends follow-up request for the Internet resources located that numerical address. 120 DNS does not merely manage telecommunications service, some commenters
114 rely this analogy between DNS and particular functions classified under pre-1996 Act precedent not
because the technologies are identical all particulars, but because they share the same relevant characteristics for
purposes making classification decision under the Act. Given the close fit between DNS and the address
translation function classified information service under the MFJ coupled with the fact that the statutory
information service definition (and telecommunications management exception) was drawn more directly from the
MFJ, find the MFJ precedent entitled more weight than analogies Computer Inquiries precedent. thus
are not persuaded arguments seeking analogize DNS directory assistance, which the Commission classified adjunct-to-basic under the Computer Inquiries. See, e.g., OTI New America Comments 33-34 The parallel telephone service computer-assisted directory assistance, where user can find the phone number (like
address BIAS) person based their name (like domain name BIAS). This service has long been
adjunct-to-basic and did not transform telephone service into information service. DNS similarly does not direct classification BIAS information service. Barbara van Schewick and Patrick Leerssen Reply 32-33;
Harold Hallikainen Comments 13; Peha Reclassification Comments 19; Ben Kreuter Comments
Commercial Network Services Comments Satchell Comments 26.
115
Title Order, FCC Rcd 5765 66, para. 366.
116
The court definition information services excluded capabilities for the management, control, operation telecommunication system the management telecommunications service. MFJ Initial Decision, 552
Supp. 229. Under the Communications Act, the definition information services includes identicallyworded telecommunications management exception. U.S.C. 153(24). Commission precedent and legislative
history likewise recognize that the definition was drawn from the MFJ. See, e.g., Implementation the NonAccounting Safeguards Section 271 and 272 the Communications Act 1934, amended, Docket No. 96149, First Report and Order and Further Notice Proposed Rulemaking, FCC Rcd 21905, 21954, para.
(1996) (Non-Accounting Safeguards Order); H.R. Conf. Rep. No. 104-458 126 (Jan. 31, 1996) Information
service and telecommunications are defined based the definition used the Modification Final Judgment.
117
United States Am. Tel. Tel. Co., 1989 119060, (D.D.C. Sept. 11, 1989) (citing Department Justice,
United States Western Electric Company, Inc., and American Telephone Telegraph Company; Competitive
Impact Statement Connection With Proposed Modification Final Judgment, Notice, Fed. Reg. 7170, 7176
(Feb. 17, 1982) (DOJ Competitive Impact Statement)).
118
Although the exception worded terms management, control, operation, for convenience here refer those collectively times management the like.
119
ATT Comments 77-78; see also T-Mobile Comments 14; Charter Comments 13-14; CTIA Comments
39-40; Harold Hallikainen Comments Verizon Comments 58; ATT Reply 70-71; Cox Reply 6-7;
CTIA Reply 28-30; NCTA Reply 9-10; Comcast Comments 19.
120
ATT Comments 78.
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assert, 121 but rather function that useful and essential providing Internet access for the ordinary
consumer. 122 are persuaded that [w]ere DNS simply management function, this would not the
case. 123 Comparing functions that would fall within the exception illustrates our conclusion. For
example, contrast DNS interaction with users and their applications, 124 non-user, management-only
protocols might include things such Simple Network Management Protocol (SNMP), Network Control
Protocol (NETCONF), things such DOCSIS bootfiles for controlling the configuration cable
modems. 125 These protocols support services that manage the network independent the transmission information initiated user. 126
36.
The Title Order drew erroneous conclusions from Computer Inquiries precedent and
too quickly rejected objections its treatment DNS meeting the telecommunications management
exception. 127 Under the Computer Inquiries framework, the Commission held that some capabilities
may properly associated with basic [common carrier] service without changing its nature, with
enhanced service without changing the classification the latter unregulated under Title the
Act. 128 These commonly came known adjunct capabilities. 129 The Commission has held that
functions had classified adjunct-to-basic under the Computer Inquiries framework will fall within
the statutory telecommunications management exception the information service definition. 130
Drawing loose analogies certain functions described adjunct-to-basic under Commission precedent,
the Title Order held that DNS fell within the telecommunications management exception.
37.
The Title Order incorrectly assumed that long functionality was, part, used manner that could viewed adjunct-to-basic, necessarily was adjunct-to-basic regardless what
121
CDT Comments ITIF Comments 13; New Media Rights Comments 4-5 [B]ecause these services
[like DNS, DHCP, caching, and others] are necessary route, manage, otherwise use BIAS, they fall under the
management exception embodied the definition information service. (citations omitted)); AARP Comments
85; WGAW Comments
122
Nominum Comments (asserting that the features DNS-based services are focused enhancing the
consumer Internet experience and well-beyond what needed for the management and control
telecommunications system
123
Sandvine Comments see also USTelecom Comments (asserting that DNS capabilities uniformly
permit enhance the use the World Wide Web; they not manage telecommunications system service
124
See Domain Name system (DNS) Parameters, https://www.iana.org/assignments/dns-parameters/dnsparameters.xhtml (last visited Oct. 12, 2017) (for full set information types supported the DNS protocol).
125
Sandvine Comments
126
Other functions that would fall into the telecommunications systems management exception might include
information systems for account management and billing, configuration management, and the monitoring failures
and other state information, and keep track which addresses are reachable through each the interconnected
neighboring networks. See Peha Reclassification Comments 20.
127
These same shortcomings are present the Title Order analysis caching, well.
128
Communications Protocols Under Section 64.702 the Commission Rules and Regulations, Docket No.
80-756, Memorandum Opinion, Order, and Statement Principles, FCC 584, 591, para. (1983) (Protocols
Order).
129
See, e.g., North American Telecommunications Association Petition for Declaratory Ruling Under 64.702 the
Commission Rules Regarding the Integration Centrex, Enhanced Services, and Customer Premises Equipment,
Memorandum Opinion and Order, 101 FCC 349, 359, para. (1985) (NATA Centrex Order) The computer
processing services recognized permissible adjuncts basic service are services which might indeed fall
within possible literal readings our definition enhanced service, but which are clearly basic purpose and
use.
130
See, e.g., Non-Accounting Safeguards Order, FCC Rcd 21958, para. 107.
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the functionality otherwise accomplished. 131 Although confronted with claims that DNS is, significant
part, designed useful end-users rather than providers, the Title Order nonetheless decided that
fell within the telecommunications management exception.132 While conceding that DNS, well
other functions like caching, provide benefit subscribers, 133 the Title Order held that they
nonetheless fell within the telecommunications management exception because found some aspect
their operation also was use providers managing their networks. 134 This expansive view the
telecommunications management exception transposes the analysis the approach embodied the MFJ
and Computer Inquiries; under that approach, the analysis would instead begin with the broad language
the information service enhanced service definitions, generally excluding particular functions only
the purpose served clearly was narrowly focused facilitating bare transmission. The Commission and
the courts made clear the narrow scope the adjunct-to-basic telecommunications management
categories numerous decisions many different contexts. 135
131
See, e.g., Title Order, FCC Rcd 5766-68, paras. 367-68. addition the MFJ precedent, Bureau
precedent similarly has observed that adjunct-to-basic capabilities not include functions useful end users,
rather than carriers. Petitions for Forbearance from the Application Section 272 the Communications Act
1934, Amended, Certain Activities, Bell Operating Companies, Docket No. 96-149, Memorandum Opinion
and Order, FCC Rcd 2627, 2639, para. (Com. Car. Bur. 1998) (272 Forbearance Order). Given the lack
ambiguity the MFJ holding this regard, find more reasonable interpret this precedent call for
similar requirement that adjunct basic services not include services primarily useful end-users, and reject
arguments the contrary. See, e.g., Public Knowledge Reply The rule ATT attempts extract from this simply another paragraph the telecommunications management exception which, applied DNS, still does not
lead the result wants. any case, because the definition information service, including the
telecommunications management exception, was drawn from the MFJ, the MFJ precedent alone would entitled
significant weight interpreting the scope the telecommunications management exception.
132
Title Order, FCC Rcd 5768, para. 368 n.1037. The same true the Title Order treatment
caching. Id. 5768, para. 368 n.1037.
133
Id.
134
Id.
135
See, e.g., Computer III Phase Order, 104 FCC 967-68, para. [d]ata processing, computer memory
storage, and switching techniques can components basic service they are used solely facilitate the
movement information (emphasis added)); NATA Centrex Order, 101 FCC 360, para. (speed dialing
and call forwarding serve but one purpose: facilitating establishment transmission path over which telephone
call may completed (emphasis added)); id. 360, para. (directory assistance that provides only that
information about another subscriber telephone number which necessary allow use the network place
call that other subscriber may offered adjunct basic service while offering access data
base for most other purposes the offering enhanced service (emphasis added)); Computer Final Decision, FCC 384, 419, para. (1980) [a] basic transmission service one that limited the common carrier
offering transmission capacity for the movement information id. 420-21, para. [a]n enhanced service any offering over the telecommunications network which more than basic transmission service id. 421,
para. computer processing applications such call forwarding, speed calling, directory assistance, itemized
billing, traffic management studies, voice encryption, etc. are ancillary services directly related [the]
provision basic telephone service that not raise questions about the fundamental communications data
processing nature given service (internal quotation marks omitted)); MFJ Initial Gateway Decision, 673
Supp. 587 n.275 (rejecting arguments that transmission information services fall outside the definition
information services focusing the first instance the breadth the information services definition see
also DOJ Competitive Impact Statement, Fed. Reg. 7176 (telecommunications services may include related
functions that are essential such transmission, so, for example, where function constitutes inherent aspect the technology used transmission and switching would not result the service being classified
information service under the MFJ). Notably, the focus remains the purpose use the specific function
question and not merely whether the resulting service, whole, useful end-users. See, e.g., Public
Knowledge Reply maintain, ATT does, that something that useful end user cannot fall
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38.
The Title Order also put misplaced reliance Computer Inquiries adjunct-to-basic
precedent from the traditional telephone service context comparison when evaluating broadband
Internet access service functionalities. 136 Because broadband Internet access service was not directly
addressed pre-1996 Act Computer Inquiries and MFJ precedent, analogies functions that were
classified under that precedent must account for potentially distinguishing characteristics not only
terms technical details but also terms the regulatory backdrop. The Communications Act
enunciates policy for the Internet that distinguishes broadband Internet access from legacy services like
traditional telephone service. The Act explains that federal policy preserve the vibrant and
competitive free market that presently exists for the Internet and other interactive computer services,
unfettered Federal State regulation. 137 The application potentially ambiguous precedent
broadband Internet access service should informed how well how poorly advances that
deregulatory statutory policy.
39.
The regulatory history traditional telephone service also informs our understanding
Computer Inquiries precedent, further distinguishing from broadband Internet access service. Given the
long history common carriage offering that service the time the Computer Inquiries,
understandable that some precedent started with presumption that the underlying service was basic
service. 138 But similar assumptions would not warranted the case services other than traditional
telephone service for which there was similar longstanding history common carriage. Thus, not
only did the Title Order rely specific holdings that are best ambiguous their analogy
technical characteristics broadband Internet access service, but failed adequately appreciate key
regulatory distinctions between traditional telephone service and broadband Internet access service.139
(Continued from previous page)
under the management exception absurd, the entire purpose broadband useful end users, the
entire purpose telephony.
136
See, e.g., Title Order, FCC Rcd 5768-69, para. 369.
137 U.S.C. 230(b)(2).
138
See, e.g., NATA Centrex Order, 101 FCC 358, para. [W]e did not intend that our definition
enhanced services should interpreted forbidding carriers use the processing and storage capabilities within
their networks offer optional tariffed features which facilitate use traditional telephone service. Accordingly,
the Final Decision carried forward from the Tentative Decision our recognition that there are computer processing
services which may offered conjunction with basic telephone service. Computer Final Decision, FCC 421, para. The intent was recognize that while POTS basic service, there are ancillary services
directly related its provision that not raise questions about the fundamental communications data processing
nature given service. Accordingly, are not here foreclosing telephone companies from providing
consumers optional services facilitate their use traditional telephone service. West Communications
Petition for Computer III Waiver, Docket No. 90-623, Order, FCC Rcd 1195, 1199, para. (Com. Car. Bur.
1995) [T]he Commission held the NATA Centrex Order that carriers may use some the processing and
storage capabilities within their networks offer optional tariffed features adjunct basic services, the
services: (1) are intended facilitate the use traditional telephone service; and (2) not alter the fundamental
character telephone service. cf., e.g., ATT Corp. Petition for Declaratory Ruling Regarding Enhanced
Prepaid Calling Card Services, Regulation Prepaid Calling Card Services, Docket Nos. 03-133, 05-68,
Order and Notice Proposed Rulemaking, FCC Rcd 4826, 4830-31, paras. 15-16 (2005) (ATT Calling Card
Order) (ATT prepaid calling card service involves offer the customer anything other than telephone
service, nor the customer provided with the capability anything other than make telephone call, and
relying Computer Inquiries precedent the Commission found that unprompted advertisements inserted ATT
were adjunct-to-basic and thus leave the service telecommunications service under the 1996 Act definitions.).
139
Title Order, FCC Rcd 5768-69, para. 369 (summarily asserting that the traditional telephone service
context its cited precedent provides basis discard the logic that analysis the broadband context see
also, e.g., ACLU/EFF Reply the NATA Centrex Order had concerned Internet access, would doubtless
have read offering access data base for purposes obtaining Internet numbers adjunct basic
Internet service. Thus, for example, the fact that the adjunct-to-basic classification directory assistance arose
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40.
Caching. also conclude that caching, functionally integrated information
processing component broadband Internet access service, provides the capability perform functions
that fall within the information service definition. 140 Caching does much more than simply enable the
user obtain more rapid retrieval information through the network; 141 caching depends complex
algorithms determine what information store where and what format. 142 This requires extensive
information processing, storing, retrieving, and transforming for much the most popular content the
Internet, 143 and such, caching involves storing and retrieving capabilities required the information
service definition. 144 The Court affirmed this view Brand finding reasonable the Commission
understanding that Internet service facilitates access third-party Web pages offering consumers
the ability store, cache, popular content local computer servers, which constitutes the
capability for acquiring, [storing] retrieving [and] utilizing information. 145
41. find that ISP-provided caching does not merely manage ISP broadband
Internet access service and underlying network, enables and enhances consumers access and use
information online. 146 The record shows that caching can realized part service, such DNS,
which predominantly the benefit the user DNS caching ).147 Caching can also realized
terms content that can accumulated the ISP through non-confidential (i.e., non-encryption) 148
(Continued from previous page) the traditional telephone context likewise persuades give relatively little weight here analogy
DNS, and reject arguments the contrary. See, e.g., OTI New America Comments 33-34; Barbara van
Schewick and Patrick Leerssen Reply 32-33.
140
See Comcast Comments 15-16; ITIF Comments 13; Charter Comments 14.
141
ITIF Comments 13.
142
CTIA Comments 37; see ATT Comments 75-76 ISPs routinely arrange for the use caching enhance
their customers ability acquire information. ATT Feb. 18, 2015 Parte Letter
143
ITIF Comments 13.
144
See ATT Comments 75-76 The prevalence caching confirms that broadband Internet access falls
within the scope information service (because definition consists storing and retrieving
information. such, reject commenter assertions the contrary. See, e.g., Public Knowledge/Common
Cause Comments 48-49.
145
Brand 545 U.S. 999-1000.
146
See Comcast Comments 19; Verizon Comments 58; CTIA Comments 36-37 Caching capabilities
enhance users quality experience and add[] value their broadband Internet access service, Rysavy explains, providing faster and more dependable service. (citations omitted)). Reason Foundation Comments 10;
Charter Comments 14-15.
147
See Stevens Report, FCC Rcd 11537-38, para. 76; Cable Modem Order, FCC Rcd 4809-10, para.
n.76 Caching similarly behind-the-scenes service that speeds content delivery and thus improves consumers
online experience
148 disagree with assertions record that suggest that ISP-provided caching not vital part broadband
Internet access service offerings, may stymied the use HTTPS encryption. See ACLU/EFF Reply
(stating ISP caching significantly stymied the use HTTPS encryption, which has increased from just
2010 more than 50% 2017 (citations omitted); see also Public Knowledge/Common Cause Comments HTTP Secure HTTPS accounted for 49% web traffic February 2016, compared 13% April 2014
(citing Peter Swire al., Online Privacy and ISPs: ISP Access Consumer Data Limited and Often Less than
Access Others, The Inst. for Info. Sec. Privacy Ga. Tech (Feb. 29, 2016) (white paper),
http://www.iisp.gatech.edu/sites/default/files/images/online_privacy_and_isps.pdf)). Recently, the Commission
concluded that encryption not yet ubiquitous and that truly pervasive encryption the Internet still long way
off, and that many sites still not encrypt. Protecting the Privacy Customers Broadband and Other
Telecommunications Services, Report and Order, FCC Rcd 13911, 13922, para. (2016) (2016 Privacy Order). the same proceeding, the Commission also found that DNS queries are almost never encrypted. Id. 13921,
(continued
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retrieval information from websites Web caching this case, the user benefits from rapid
retrieval information from local cache repository information while the ISP benefits from less
bandwidth resources used the retrieval data from one more destinations. DNS and Web caching
are functions provided part and parcel the broadband Internet access service.
42.
When ISPs cache content from across the Internet, they are not performing functions, like
switching, that are instrumental pure transmission, but instead storing third party content they select
servers their own networks enhance access information. 149 The record reflects that without
caching, broadband Internet access service would significantly inferior experience for the consumer,
particularly for customers remote areas, requiring additional time and network capacity for retrieval
information from the Internet. 150 such, conclude that the Title Order erred incorrectly
categorizing caching falling within the telecommunications system management exception the
definition information service.
43. addition, the Title Order failure consider applicable MFJ precedent led
mistaken analogies when concluded that caching fell within the statutory telecommunications
management exception. 151 relevant precedent, the MFJ court observed that the information service
restriction generally prohibits the [BOCs] from storing and retrieving information, but identified
quite distinct settings which storage capabilities the [BOCs] could used the information
services market. 152 One the categories storage and retrieval identified the court appears highly
comparable caching. That category involved BOC provision storage space their gateways for
databases created others such information service providers and end users, making
communication more efficient moving information closer the end user, thereby reducing
transmission costs. 153 This functionality recognized information service the MFJ court
appears highly analogous caching, and lends historical support our view that the caching
functionality within broadband Internet access service best understood rendering broadband Internet
access service information service. 154
(Continued from previous page)
n.39. While recognize that the 2016 Privacy Order and the rules adopted therein have been nullified under the
Congressional Review Act, nonetheless find the Commission analysis the record that proceeding this
point relevant.
149
See USTelecom Comments 34-35.
150
See, e.g., NCTA Comments 15; Brand 545 U.S. 999 (noting that caching obviates the need for the end
user download anew information from third-party Web sites each time the consumer attempts access them,
thereby increasing the speed information retrieval Charter Comments 14-15 (explaining that without
caching, customers would experience greater delays retrieving such information and when they find it); Verizon
Comments (explaining that caching behind-the-scenes service that speeds content delivery and thus
improves consumers online experience, and for that reason, not network management process but instead
valuable component the information service that ISPs offer consumers). For these reasons, reject
arguments the contrary. See, e.g., Public Knowledge Comments (Caching operates not just for the benefit the end user, who may experience faster transmission, but also for the benefit the network provider, reducing
the resource demands and traffic loads their network Scott Jordan Reply 12-13 [I]f broadband Internet
access service provider chooses implement caching inside its network, and not content delivery network
service offered edge providers, then doing order manage its broadband Internet access service.
151
See generally Title Order, FCC Rcd 5770-71, para. 372; see also, e.g., INCOMPAS Comments 54-55
(arguing that finding caching fall within the telecommunications management exception keeping with
Computer
152
153
MFJ Gateway/Storage Retrieval Decision, 714 Supp. n.73, 19.
Id. 19.
154
The first category the court identified was very short term storage, including, among other things, the basic
packet switching function, which involves the breakdown data voice communications into small bits
(continued
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44.
Ignoring that MFJ precedent, the Title Order erred seeking analogize caching
store and forward technology [used] routing messages through the network part basic
service mentioned the Computer Final Decision. 155 fact, consistent with the MFJ court
identification distinct uses storage and forwarding, the cited portion the Computer Final
Decision recognized that the kind enhanced store and forward services that can offered are many
and varied. 156 that regard, the Computer Final Decision