If Someone Asks You About BrandX…
[Cross-posted to SCOTUSblog]
If someone asks you what the Supreme Court thinks about the internet today, you've got a couple of responses.
1. In Grokster, the Court seems to understand that the case before it isn't just about P2P, and that the development of technology is really at issue. It doesn't want to let one industry — the content industry — use its statutory copyright monopoly to control the growth of another industry. On the other hand, the Court also recognizes that going after individual filesharers is very difficult, and that it may be necessary to go after intermediaries where sufficient evidence of intent is present. (This could be called the “There Must Be Liability In Here Somewhere” argument.) Result: some risk of liability for copyright infringement by technology providers, and a roadmap for what evidence is relevant when those cases come up.
2. In BrandX, the Court takes an entirely different approach. Using homespun analogies to pizza and dogs, and based on some fundamental misunderstandings about technology, the Court defers to the FCC's determinations about internet services. (This could be called the “This is Really Hard And We Want Out” tack.) Result: unfettered discretion lodged in the FCC to do what it wants with all internet services.
Now, the BrandX case is about a classification question. Should cable modem services be classified as “telecommunications services” or “information services”? If cable modem internet access is a telecommunications service, then many common-carrier obligations kick in — like the obligation to allow others to plug into your network, to charge only set rates, and to contribute to the costs of rural telephone systems. The FCC didn't want to impose all of those costs on the cable industry, and so they said that cable internet access is really an “information service.” This means that the FCC can apply “social policies” to the service (which can be very onerous and costly — just as costly as the common-carrier rules), but won't set prices or require interconnection.
The problem with this classification by the FCC is that the statutory definition of “information service” doesn't fit with what internet access actually is. Information services are supposed to be things that generate, acquire, store, transform, process, retrieve, or make available information across telecommunications connections. The FCC reasoned that cable modem service is an information service because it gives people the ability to manipulate information using the internet across high-speed telecommunications. But that's not really right. Cable modem service allows people to reach online information, but doesn't necessarily allow them to manipulate it.
Your browser software allows you to see graphical online pages. Your email program allows you to receive and send email. Your IM client allows you to chat with friends. None of these things are necessarily provided by your cable service company. The 1996 telecom act, which contained these definitions, didn't foresee what the internet would become or how it would be used.
The Court defers to the FCC's classification, and along the way drops some very powerful dicta that gets ahead of the rewrite of the telecom act that is now in progress. Federal telecommunications policy, the Court says, should be set by the Commission. Everything accessed online is an information service. The Court says “the Commission has jurisdiction to impose additional regulatory obligations [on information service providers] under its Title I ancillary jurisdiction to regulate interstate and foreign communications.”
The opinion has no limiting principles. The FCC can call anything that processes information an “information service,” including any application you can think of. And it can impose any rules it wants to on that information service. We'll be relying on the Commission's self-restraint from now on.
That should be good cocktail-party banter.
[UPDATE: In response to emails and comments — I agree with the Court's holding to the extent that it will result in freeing both naked DSL and cable modem access from Title II obligations. What I'm arguing about here is the FCC 's assumption that the world is divided neatly into two things — information services and telecommunications services — that it has jurisdiction over all of 'em (including web sites), and that it can impose “social policies” without limit. The Court's dicta in BrandX supports this FCC adventurousness. I understand that many people believe the 1996 Act did this in the first place, but I don't agree with that assumption for reasons I've explained in Shortness of Vision.]
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5 Responses to “If Someone Asks You About BrandX…”
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How odd. As a transport medium, CATV transport frequencies are regulated, separated, similarly to broadcast frequencies. As a network service, CATV internet is not self-contained, dependent as it is on common carrier points of presence and/or related routing, switching to provide CATV subscribers with internet “access.” CATV itself evolved from “community” access television whose evolution the FCC once acknowledged for monopolistic and monopsonic potential in the context of tv programming alone. Yet, today's FCC, supported by SCOTUS, would have us believe CATV internet is not a network (telecommunication) service nor a network (telecommunication) transport providing network (telecommunication) access to unregulated content, but a form of commercial information service creating content subject to regulation? So the sky CAN be any colour they want.
Or did BrandX attorneys eschew their Powerpoint exhibits of OSI architecture and where, exactly, cable/CATV transports fit in?
monopsonicmonopsonistic. Sheesh.So, if you get your home phone service through your cable modem, is it still just an information service? Did the court's opinion leave room for that?
The opinion has no limiting principles. The FCC can call anything that processes information an “information service,” including any application you can think of. And it can impose any rules it wants to on that information service. We'll be relying on the Commission's self-restraint from now on.
And on the rules which govern judicial review of administrative action, surely? It seems to me that curial deference to the FCC is not a bad thing, even where the FCC makes bad decisions.
The solution is not a better FCC, not more FCCs, and the Supreme Court has properly leaned in that direction. Compare to the eminent domain decision, for instance. Somewhere in all this curial deference to administrative bodies is a whiff of consistency, surely?