Given that the Supreme Court has previously upheld both of the FCC’s classifications of broadband under the Telecommunications Act of 1996, first as an “information service” and then as a “telecommunications service” (when Wheeler reclassified it to impose net neutrality), there is no way that they will strike down a return to the “information service” classification.
By a legal doctrine known as “Chevron deference”, the courts defer to regulatory agencies in choosing between plausible interpretations of the law, instead of choosing an interpretation themselves. From the text of the Act, it is not clear what broadband internet service is. If a “telecommunications service”, it is subject to the very extensive Title II requirements including common carriage. So while the FCC classified it as an “information service” in the early 2000s, it reclassified it as a “telecommunications service” in 2015 in order to impose net neutrality. Both of these classifications were challenged in court and survived scrutiny. Now the FCC has gone back to the “information service” classification. There is no reason to think that the court has changed its mind on the reasonableness of either interpretation of the act, so any suits challenging this would need to allege some procedural deficiency in how the FCC promulgated the new regulation. The plaintiffs are not likely to prevail.
I would hesitate to say never. When the Supreme Court allowed the FCC to designate cable broadband as an info service (Title I) in 2005, the majority basically said the facts at the time make it plausible to call ISPs that way because, well, they offer email and webpages, but that even then the better interpretation was Title II. (Scalia famously said it was ridiculous to think ISPs weren't Title II).
So the courts could now say that Title I doesn't fit at all because they are basically just hired pipes. Chevron deference only goes so far - an agency can't call a river an ocean, for instance. So this FCC is making as much as they can of DNS and ISP caching in its Order to argue ISPs are not just data transporters.
And finally, on Chevron deference - one thing to remember: many conservatives hate it since it hands power to agencies over Congress. If this ever got to the Supreme Court, watch out for Neil Gorsuch, who will have to face the choice of party over his principle hatred of Chevron deference.
Scalia’s dissent was more nuanced and not all that favorable to net neutrality advocates. He said that the connection of the home to the network was a telecommunications service, over which an information service is provided. The routing and interconnection decisions, optimizations, and prioritizations made within the ISP could very plausibly have fallen under the information service aspect. Here are some excerpts suggesting just that:
>Since the delivery service provided by cable (the broad-band connection between the customer’s computer and the cable company’s computer-processing facilities) is downstream from the computer-processing facilities, there is no question that it merely serves as a conduit for the information services that have already been “assembled” by the cable company in its capacity as ISP. This is relevant because of the statutory distinction between an “information service” and “telecommunications.” The former involves the capability of getting, processing, and manipulating information. §153(20). The latter, by contrast, involves no “change in the form or content of the information as sent and received.” §153(43). When cable-company-assembled information enters the cable for delivery to the subscriber, the information service is already complete. The information has been (as the statute requires) generated, acquired, stored, transformed, processed, retrieved, utilized, or made available. All that remains is for the information in its final, unaltered form, to be delivered (via telecommunications) to the subscriber.
This reveals the insubstantiality of the fear invoked by both the Commission and the Court: the fear of what will happen to ISPs that do not provide the physical pathway to Internet access, yet still use telecommunications to acquire the pieces necessary to assemble the information that they pass back to their customers. According to this reductio, ante, at 22–24, if cable-modem-service providers are deemed to provide “telecommunications service,” then so must all ISPs because they all “use” telecommunications in providing Internet functionality (by connecting to other parts of the Internet, including Internet backbone providers, for example).
[...]
Second, it is apparently possible to sell a telecommunications service separately from, although in conjunction with, ISP-like services; that is precisely what happens in the DSL context, and the Commission does not contest that it could be done in the context of cable. The only impediment appears to be the Commission’s failure to require from cable companies the unbundling that it required of facilities-based providers under its Computer Inquiry.
"After all is said and done, after all the regulatory cant has been translated, and the smoke of agency expertise blown away, it remains perfectly clear that someone who sells cable-modem service is “offering” telecommunications. For that simple reason set forth in the statute, I would affirm the Court of Appeals."
> Given that the Supreme Court has previously upheld both of the FCC’s classifications of broadband under the Telecommunications Act of 1996, first as an “information service” and then as a “telecommunications service” (when Wheeler reclassified it to impose net neutrality), there is no way that they will strike down a return to the “information service” classification.
That's inadequately reasoned. The fact that the Supreme Court found an application of the legal definition reasonable on the set of facts presented at one point in time and a different result of applying the same law reasonable on a different set of facts presented at a later time does not mean that a reversion to the older application at a yet later time will necessarily be upheld as consistent with the law based on the facts presented at that time.
> By a legal doctrine known as “Chevron deference”, the courts defer to regulatory agencies in choosing between plausible interpretations of the law, instead of choosing an interpretation themselves.
A big part of this suit seems to rest on the Adminstrative Procedures Act - an argument to the administrative law process, rather than to the FCC's authority to make this decision. I think that's more likely to stick, but that's a delay rather than a halt - the FCC can always try again with the right procedure.
> Given that the Supreme Court has previously upheld both of the FCC’s classifications of broadband under the Telecommunications Act of 1996, first as an “information service” and then as a “telecommunications service” (when Wheeler reclassified it to impose net neutrality), there is no way that they will strike down a return to the “information service” classification.
When was the telecommunications service classification upheld by the Supreme Court. Last I remember is that there were some petitions asking the Court to look at it, but I don't recall the Court agreeing to do so, let alone actually ruling, and Google is not turning up anything.
Thank you for the correction. The DC Circuit is the one that heard that case, declining to overturn the FCC’s reclassification of broadband to a “telecommunications service”.
By a legal doctrine known as “Chevron deference”, the courts defer to regulatory agencies in choosing between plausible interpretations of the law, instead of choosing an interpretation themselves. From the text of the Act, it is not clear what broadband internet service is. If a “telecommunications service”, it is subject to the very extensive Title II requirements including common carriage. So while the FCC classified it as an “information service” in the early 2000s, it reclassified it as a “telecommunications service” in 2015 in order to impose net neutrality. Both of these classifications were challenged in court and survived scrutiny. Now the FCC has gone back to the “information service” classification. There is no reason to think that the court has changed its mind on the reasonableness of either interpretation of the act, so any suits challenging this would need to allege some procedural deficiency in how the FCC promulgated the new regulation. The plaintiffs are not likely to prevail.