ISPs: FCC Is Title II-Faced

tell court agency can’t have it both ways
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WASHINGTON — Internet-service providers told a federal court last week that DNS (domain naming service) and caching (remote storage) can’t be defined as information services when offered by third parties like Google, and telecommunications services when offered by ISPs like Comcast and AT&T, as the Federal Communications Commission would have that court believe.

In a reply brief responding to the FCC’s court defense of its decision to reclassify ISPs as common carriers under Title II of the Communications Act, cable and phone ISPs said that the FCC’s brief confirmed the agency’s actual goal is to impose those more strict common-carrier regulations on anyone it decides is a gatekeeper.

In this case, that means last-mile provider ISPs.

The commenters, which included the National Cable & Telecommunications Association, told the U.S. Court of Appeals for the D.C. Circuit that the FCC “fundamentally misunderstands” DNS and caching.

Given that DNS allows “click-through” access between Web pages, as well as enabling parental controls and protection from scams, they argue, it provides important added value that is beyond merely managing a communications service.

“If broadband providers don’t offer DNS as part of their Internet access service, mass-market consumers would find that service useless for accessing the Internet’s various applications,” they said.

As for caching, or remotely storing some information to improve the customer experience, they argue it is clearly “information access and retrieval,” as the Supreme Court upheld in its 2005 Brand X decision.

In fact, the ISP arguments rely heavily on Brand X, which upheld the FCC’s prior determination that Internet access was an information service not subject to mandatory access rules.

But they also said the FCC has not produced “any relevant facts about DNS and caching that have changed since it expressly told the Supreme Court they are information services that do not fall within the telecommunications-management exception.”

As to the FCC’s argument that broadband providers use DNS and caching for different purposes than third parties, the ISPs say that is not only wrong — in both cases, they argue, they’re used to improve the user experience — but it’s irrelevant.

In fact, they argue, given that third parties can offer both is evidence that DNS and caching do not “manage a telecommunications network” since ISPs wouldn’t, and couldn’t, give end users the power to allow third parties to manage their networks.

“In short,” the ISPs said, “the reclassification ruling is not the result of objective analysis by the FCC of changed facts that undermined its longstanding position. It is a naked effort by the agency to achieve its desired result — subjecting broadband to “Modern Title II” — by relying on indefensible (or irrelevant) assertions of purportedly changed circumstances.”

They also argued that the FCC’s case comes down to a plea to the court for deference for an “aggressive misreading” of Brand X in service of its goal of targeting ISPs as gatekeepers.

Final briefs in the case are due Oct. 13. Oral argument is set for Dec. 4. The new, Title II-based rules have been in effect since June 12.

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