BrandX argument
The BrandX transcript is worth reading, even though it's heavy sledding for the non-telecom-literate. To the extent the Court's intentions can be gleaned from its questioning pattern, the FCC surely lost this argument. The Justices jumped all over the petitioners (TW and the DOJ), and let the respondent offer a calm tutorial — barely interrupted by a question. The Commission's logic:
1. Phone companies have always been common carriers. Cable companies have not.
2. Phone companies have to provide separate pure transmission services (”telecommunications services”). Cable companies do not.
3. Because of 1 and 2, cable companies offering transmission to the internet plus email (”enhanced service”) over cable modems shouldn't be regulated as common carriers.
4. Besides, it would be the wrong thing to do to impose interconnection/nondiscrimination obligations on cable modem service, and maybe we won't attach those obligations to naked DSL service (although, right now, we do).
The Commission's argument has to stem from the premise that the internet itself is an “information service” — some kind of giant data processor — and providing access to it is also an information service. TW's lawyer, Paul Cappuccio, said that accessing a web site is different from making a phone call:
[Accessing a site] is not simply sending bits over a line and having those bits not changed and not interfered with. When you retrieve something from a server, you have to take it in form it is on the server, you have to then put it through the transmission system, and you have to reconvert it back into what you want to see. It's an interactive process that is more than just sending information.
What? The browser does conversion, sure, but what's the cable operator doing? It's providing access — transmission — to a network. So are ISPs. So is everyone in the chain.
So now that we know that everyone in the chain is potentially a common carrier, the thing to do is to take a Netcom-like approach to this issue. Rather than make everyone liable for the traditional regulatory burdens of common-carrier-dom, let's dismantle the whole edifice. As in Netcom, let's say that direct, physical access to the consumer/business (in the Netcom context, direct infringement) is the thing we'll regulate. We'll turn it into a public utility. And we'll leave everything above that alone. We did this with energy — we can do it with online access. Sure, there will be a few takings cases — but that will be entertaining (and lucrative) for everyone.
It seems to me that the 1980 FCC proceedings (that talked about computers owned by common carriers doing data-processing) did not have the internet in mind. But everyone involved in the telecom rewrite discussion – cable companies, Commission, phone companies – believe that there's nothing particularly special about the internet. “Oh, we talked about that 25 years ago,” they say.
The internet is not a data-processor, and it isn't under the FCC's jurisdiction, and IP-enabled services are not (or should not be) “information services.” It's time to take this all apart.
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Somehow the transcript left out the part where Scott McNealy shouts from the viewing area, “the network IS the computer!”
Oh, when will they learn . . .