Want to Play FCC Fantasy Baseball? Follow The Title II Debate.

Ever since FCC Chair Genachowski announced his plans to hit the legal reset button and classify some aspect of broadband access service as Title II “telecom” rather than as a Title I “information service,” the little hard core world of policy has been all abuzz about what the FCC might do and how that might work or not work or would have this or that unintended consequence. AT&T’s Bob Quin provides a good example of this sort of analysis here, wherein he concludes that the Genachowski proposal can’t achieve the desired net neutrality rules and therefore analogizes this effort to Pickett’s Charge.  [Additional props to Quin for comparing the effort to something that turned out to be a huge tactical mistake and that the folks executing Pickett’s Charge were fighting for a cause most of us in the progressive side oppose (the Confederacy).]

For me, this sort of speculation has much more in common with Fantasy Baseball than with an actual historic event — or what is likely to happen. What we’ve got right now is Genachowski outlining his approach in as close to layman’s terms as possible, and FCC General Counsel Austin Schlick providing an only slightly more detailed legal over view. No one can reasonably expect this to contain the level of detail and nuance of the FCC’s upcoming Notice of Inquiry on Title II and whatever forbearance proposal the FCC actually publishes.  So all us policy wonks digging into the minutia of what we think the FCC might say and how that would or wouldn’t accomplish is a lot of fun. It’s also potentially educational in allowing us to explore  possible issues and develop and hone arguments. But using this collective internet chatter to judge the effective of what the real FCC will actually do in reality, and therefore whether the FCC should take action at all, is as foolish as trying to predict the 2010 World Series from how well my fantasy baseball team performs.

Still, being a hardcore policy wonk, I can’t resist the urge to put my Fantasy FCC team against AT&T’s and the others. So I will give my replies to the most common “why the FCC won’t be able to do what it wants based on what Genachowski and Schlick said,” with the following caveats:

1) This is not written with the precision and nuance of a legal brief.

2) Substantive legal and tech comments, either pro or against, are certainly welcome. I just may not get a chance to respond given how busy things are.

3) The FCC still has an enormous capacity to do this wrong and mess things up. So while they could do it right, and I hope they will (I shall certainly do my best to push them) they could also screw up big time.

So welcome to Fantasy FCC! I’m going to pull what I think are the relevant statutes and my team of precedents and rules. I’ll be competing against the other Fantasy FCC players who (absent an actual FCC action) have fielded their arguments and precedents for our imaginary Order.

First, there are four terms that are important: “telecommunications,” “telecommunications carrier,” “telecommunications service,” and “information service.”  All of these are found in the “definitions section” of 47 U.S.C. 153.

153(20) Information service

One of the important things which we will come back to later is that you can use “telecommunications” without offering “telecommunications service.”

Argument #1: Carriers Will Still Be Able To Block Or Degrade Content Anyway, So What’s The Point.

This argument appears to derive from the fact that Genachowski and Schlick have argued for targeted and limited classification of ‘the transmission component” as a Title II telecommunications service.  It basically argues that because the blocking/degrading/prioritizing/whatever we call it takes place in some “other” part of the network (in the routers, in the middle mile), classifying the “transmission component” of broadband access is either ineffective (because the discrimination can/does take place elsewhere) or too hard.

The specifics of the answer depend on the flavor, but they all belong to a general class of argument I call “IP=magic pixie dust.” Proponents argue that IP (internet protocol) is so amazingly different from any other communications system that ever existed that those ancient statutory definitions and hoary old for the primitive telephone system with its mechanical switches just can’t possibly apply. So if we have what is basically a telecommunications system (taking information of the user’s choosing at point A and moving it to Point B) and sprinkle magic IP pixie dust on it, then it becomes an “information service.”

The FCC actually rejected this approach to some degree with the AT&T Phone to Phone IP Order and the old ATM and Frame Relay Orders. I read those precedents to say “just because there is some IP in there somewhere doesn’t make it an ‘information service.’ The statutory definitions are technologically neutral so if it is ‘telecom’ and then you throw in IP, that (alone) doesn’t change the classification.”

That doesn’t get us all the way there. But it does knock out some of the arguments like “well, telecom is what’s between the wires, but not what goes on in the router, because the router is all about ‘information processing.'” True enough, a router does a lot more than a circuit switch. But the definitions actually address that. The definition of “information service” explicitly “does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” So the mere fact that the “transmission component” involves routers and other information processing doesn’t somehow slip back into Title I. Information processing to control transmission — including to block/degrade/delay p2p as Comcast did — is not an “information service” according to the statute if it is simply part of the telecommunications.

Which brings us to Bob Quin’s “ISP/transmission component” argument. That is, Quin reads Genachowski and Schlick as saying they won’t regulate ISPs as entities but only the underlying transmission component as if that is somehow different from the service. I don’t think it will work that way. Again, lets go back to the statutes.

“Telecommunications” is moving info of the users choosing back and forth. A “telecommunications service” is when someone offers “telecom” to the public, or class of the public. A “telecommunications carrier” is an entity that provides “telecommunications service,” but only to the extent it is providing telecommunications service.

Lets put all this together in a modern ISP like AT&T. AT&T offers a lot of things on its copper line into the home. It offers a traditional voice service, that we regulate as a Title II voice service. It offers a service that looks a lot like a cable service, which we regulate (by and large) as a Title VI cable service.  It also offers DSL. That DSL offering includes a whole bunch of offerings bundled together. The most important is the offer to take my information (like say, the contents of this blog post) and send it to some point of my choosing (such as the server that hosts this blog). It also offers to take information addressed to me (such as the file on the server) and deliver it to me.

That is the “telecommunications service.” That offer to take information of my choice to and from anywhere else. Yes, it’s a “best efforts” offer. So what? The statute does not say anything about controlling the information from one point to another. The statute does not care how many hand offs with how many networks. All it cares about — as we’ve carefully recited since the Cable Modem Order in 2002 — is what does the service provider offer to do for me. Here, the service provider offers to take info of my choosing and deliver it, the statutory definition of a telecommunications service.

AT&T the ISP offers to do a lot more stuff, which falls into the pure information service category. For example, if I subscribed to them, they would give me an email account and would store and retrieve my email for me. That’s classic info processing. Those services will remain info services, because the statute says AT&T is only a “telecommunications carrier” for the services it offers that are “telecommunications services,” i.e. voice and (post-FCC reclassification) the part of broadband that involves the offer to move my information and deliver information addressed to me.

If that seems unusually complicated, consider that we do it already for the same wire even without getting DSL. If I subscribe to just AT&T voice (getting my video and broadband access elsewhere), I get a Title II voice service and a whole bunch of other bells and whistles: caller i.d., voice mail, possibly a second phone number — all of which are “information services” even though they come over the same line and use the same technology. Because the statute (and FCC precedent outside the “IP as pixie dust” fallacy) doesn’t give a  rat’s patootie about the technology. It is a purely functional test. So if we have DSL (or other broadband access) providing numerous services using a bunch of technologies, the FCC can still keep everything else “info service” while saying “that offer to take the subscriber’s data from one place to another, what we call the ‘transmission component,’ that’s actually a telecommunications service because you are offering it to the public.”

I’ll respond to the inevitable red herring that this somehow makes AT&T responsible for stuff that happens outside its network by observing that AT&T (and other carriers) routinely pass their Title II phone traffic through other networks. Heck, any AT&T subscriber calling me is having their information move from the AT&T network to the Verizon network. AT&T is not responsible to its subscribers if Verizon blocks, degrades, prioritizes or otherwise does something to AT&T’s incoming call. “Telecommunications” has been “best efforts” in that sense since the days of the telegraph. AT&T makes no guarantee that it can actually complete the transmission. It just offers to try. Which is all the statutory definition requires.

Argument #2: Because all Information Services Are Delivered Via Telecommunications, Classifying Broadband Access As A Telecommunications Service Would Require Classifying Facebook and Akamai as Telecommunications Services.

I don’t have a good link to this, as I’ve only heard it orally. Barbara Esbin brought it up at our debate at New America a few weeks ago. This argument runs in the opposite direction from the first. It argues that if the FCC can reach the telecommunications component in broadband access, it can reach the telecommunications component in all information services, since all information services are offered “via telecommunications.”

As with argument #1, this makes things more complicated than either the statute or FCC precedent makes it. You can have “telecom” as defined by the statute without it being a “telecommunications service” (or the entity providing the telecom being a “telecommunications carrier”). The critical ingredient is the offer to serve the public.

Lets take our two favorite examples, Facebook and Akamai. Facebook is a provider of a wide variety of interactive services. Akami is a “content delivery network” or CDN. Both of them do a lot of the same things that ISPs do. From an engineering standpoint, it looks like Akamai is delivering content and Facebook is sending people email. How is that different from what an ISP does? For better or worse, however, the Communications Act is written and interpreted by lawyers. And from the lawyer perspective, what these three entities do is very different.

As discussed above, an ISP offers (among other things) broadband access, the promise to move info from one place to another, to the general public. That’s not what Facebook does. Facebook offers to the public: “if you can get your information to me, I will store it and make it available to people.” I can’t get to Facebook without some other entity taking my information to it, or bringing it back to me. When I post a status update, I’m telling my broadband access provider “take this to the following address.” When it gets there, Facebook receives it and does stuff with it. Then it holds that information until someone else comes along and says “send me the updates on my friends, which include Harold Feld.”  Yes, it does other things as well. It might send an email for me to someone. But that doesn’t make Facebook a “telecommunications service” anymore than my local Big and Tall is a “telecommunications service” because they call me whenever they have a “special sale” they think I might like. Big and Tall uses “telecommunications” (i.e. the phone), but they are not a “phone service.” Facebook uses broadband, it does not offer broadband access. It therefore remains a classic “information service” provider no matter what the FCC says about the nature of a broadband access service.

Now let’s apply this same analysis to Akamai. Akamai is moving information from one place to another. That’s plainly “telecommunications.” But we still have the rest of the statute do address. Akami does not offer its service to “the general public” or even a distinct class of the general public. Any entity that wants to use Akamai’s CDN negotiates its own special deal with Akamai. So while Akamai offers telecom, they do not offer a “telecommunications service” and are not “telecommunications carriers.” Neither are Tier 1 backbone providers, for that matter, and to the extent they are offering “telecommunications services” they are already regulated as Title II providers and covered by the FCC’s “special access” rules.

So no, the fact that all information service is offered “via telecommunications” does not mean that an FCC determination about the nature of the “offer” in broadband access impacts other information services, like Facebook or Akamai.  They remain information services for the same reason they always have, what they offer is as different from what AT&T or Comcast offer when they offer consumers broadband access service.

Let The Real Proceeding Begin!

As I said at the beginning, Fantasy FCC is lots of fun for us telecom wonks. But just as Fantasy Baseball doesn’t substitute for an actual baseball season, all the excited speculation about how the FCC could screw up or get where it wants to go doesn’t substitute for an actual FCC proceeding. I expect folks will poke at my reasoning above, and come up with arguments I haven’t thought of yet. That’s to be expected. Heck, I welcome it — in the same way die hard baseball fans welcome the challenge from other fans who put together opposing teams. But I don’t mistake all this pregame fun and games for an actual FCC proceeding. We won’t know what the FCC does until they propose to do it. At that point, we can focus on the real arguments and see what really happens.

Stay tuned . . . .