Reading Case Law Is Fun

Wow, I haven't had a post in a while. Apologies for that. In the past 10 days, I've been in 6 different states, a couple of them multiple times. Moving across country is just so much fun.

There have been so many interesting news stories lately that I'm going to try to post a few times in the next few days to catch up on commentary on some of them. For today, it's this ruling by the Supreme Court regarding access to broadband. The case was brought by several smaller ISPs (Brand X, Earthlink, etc.) and a consumers rights union against various cable telecommunications groups. The purpose of the suit was to force cable companies to open up their lines to competitors. This is similar to the way that local phone companies are legally required to offer competitors access to offer phone service. This would allow customers to sign up for broadband access through Brand X or Earthlink instead of Comcast or Adelphia.

As a side note, I will admit that I was rooting for the underdogs here. Comcast and Adelphia are not exactly known for providing quality customer service. Many customers, like myself, would like for some competition in this area to force improvement of service. You know, that whole free market thing.

According to the article, the case "turned on the technical classification of cable modem services under federal communications law." Curious to find out more about the ruling, I looked it up on FindLaw. The technical classification referred to above is whether cable companies are offering an information service or simply telecommunications service. I.e., are they just passing information on, or are they doing something to the information?

It looks like the inital blame rests on the accursed FCC. Here's a relevant portion of the ruling:

For the Commission, the question whether cable companies providing cable modem service "offe[r]" telecommunications within §153(46)'s meaning turned on the nature of the functions offered the end user. Seen from the consumer's point of view, the Commission concluded, the cable wire is used to access the World Wide Web, newsgroups, etc., rather than "transparently" to transmit and receive ordinary-language messages without computer processing or storage of the message. The integrated character of this offering led the Commission to conclude that cable companies do not make a stand-alone, transparent offering of telecommunications. [italics are the emphasis of the court, bold is mine]

This seems to be saying that, because the end user is ignorant of the difference between internet access and computer programs, we should assume everything is bundled. Joe Schmoe just knows that he types something on his computer and Adelphia goes and gets it for him. Therefore, Adelphia is offering an "information service." However, many users know and understand that the translation of the streaming digital data is converted to usable information by their computers. I can set up a Web server on my computer at home and access it from other computers on my home network. No cable provider is involved. The only difference between this case and when I am trying to visit Google is that the cable company is transmitting the data. Adelphia is simply an intermediary offering telecommunications service, nothing more.

Justice Scalia understands this. He points out that "DNS, in particular, is scarcely more than routing information, which is expressly excluded from the definition of 'information service.'" I.e., the routing of data from your computer to another, then transmitting the response back is not an information service.

So the original blame falls with the FCC, for, well, making yet another ignorant ruling. The judges in the majority are correct in stating that the Chevron framework applied. However, the last part of that framework requires that the "agency's construction is reasonable." I don't believe that the Commission's construction was reasonable because it was based too much on some users' ignorance. Just because some novice users mistakenly assume that Adelphia is selling the Internet, rather than simply selling access to it, does not make it reasonable to conclude that the services are bundled.

Wow...I actually agreed with Scalia on something. In truth, I also agreed with him on another recent ruling that I will post on soon. That ruling was the one that said it is acceptable for the government to seize private property to give to others for private commercial development. More on that one later...