The FCCs case against net neutrality rests on a deliberate misrepresentation of how the internet works

The FCC has just published the notice of proposed rulemaking that would roll back the 2015 Open Internet Order establishing net neutrality. Their first and primary justification for doing this is a way of defining broadband access thats so backwards its ridiculous. It would be funny, if the future of the internet didnt depend on this incredibly disingenuous maneuvering.

After the introductory bloviation and half-told history, the Restoring Internet Freedom proposal begins its argument in earnest. The first point they make is regarding the text of the 1996 Telecommunications Act, and how it defines telecommunications service (which is how broadband is currently defined) and information service (how it was before the net neutrality rule).

Now, Im going to list the two definitions. Which one do you think sounds like what a broadband provider does?

  1. The offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system.
  2. The transmission, between or among points specified by the user, of information of the users choosing, without change in the form or content of the information as sent and received.

Take your time.

Okay. Number 2, right? Because your ISP doesnt store the data you post on Facebook, or the address you look up on Google Maps, or the Pope you read about on Wikipedia. Its edge providers like the ones I just mentioned that do all the generating, acquiring, storing, and so on. ISPs just transmit the information, right?

Perhaps it would surprise you, then, to hear that the FCC has the exact opposite idea of how the internet works!

Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online. Whether reading a newspapers website or browsing the results from a search engine, a broadband Internet user is able to acquire and retrieve information online In short, broadband Internet access service appears to offer its users the capability to perform each and every one of the functions listed in the definition and accordingly appears to be an information service by the definition. We seek comment on analysis.

Oh, youre going to get comment on that analysis, all right. Lets just run down the obvious objections.

First, most broadband providers simply dont offer the services listed. Does Comcast have a blogging platform, a news service or a search engine that anyone actually uses on purpose? No, Comcast offers a pipe through which to reach other services. Reaching other services is the service that it itself offers! There are even safe harbor laws shielding it from liability for transmitting the things on those services because it has no control over them!

Second, broadband providers often arent even aware what information they are transmitting, because it is encrypted. They cannot transform it, generate it or process it because tampering with encrypted data is immediately evident to the user. While drafting a blog, as Im doing right now, the ISP only knows that it is handing packets between the router at this coffee shop and the IP address and port belonging to WordPress.

Third, most services that are in fact offered by the ISP, such as DNS lookup, error pages, caching and routing, all have to do with ordinary network management the work of getting packets from one place to another properly.

This analysis is like saying that because someone built a bridge, they also created the entire city on far side of it. Its absurd, and in fact the argument was already tried and found wanting in a federal court just three weeks ago. Anyone with a modicum of technical knowledge will find this interpretation truly wrongheaded and entirely incorrect. Its hard to think of this as anything other than a willful misrepresentation of the facts.

But wait, theres more!

Not only does the FCCs proposal claim that broadband providers do things they dont, it claims that they dont do things that they do! Specifically, the order denies that ISPs provide telecommunications, as defined above in No. 2.

For one, broadband internet users do not typically specify the points between and among which information is sent online. Instead, routing decisions are based on the architecture of the network, not on consumers instructions, and consumers are often unaware of where online content is stored Even IP addresses may not specify where information is transmitted to or from because caching servers store and serve popular information to reduce network loadsWe believe that consumers want and pay for these functionalities that go beyond mere transmission and that they have come to expect them as part and parcel of broadband Internet access. We seek comment on our analysis.

Well then, since you asked!

First, users absolutely, 100 percent do specify the points between and among information is sent. They specify it using a uniform resource locator or URL, the shorthand used on the entire worldwide web to describe where a given item is stored. Users request these specifically, and where they arent obvious (such as with a generated URL or content hidden behind a web app), the point the user is requesting is still implicit in the interface and protocol used. Seriously: The entire internet and web are built on the fundamental idea that users specify these points, and the transfer protocols figure out the rest.

Second, if you want to be realistic about the definitions here, point just as easily indicates a service or company as it does an IP address or server rack. We dont know the exact desk at the IRS to which we send our taxes; the points we choose are our mailbox or carrier and the all-purpose address or inbox of the second party. Facebook is a point just as much as 66.220.144.0 is.

Third, mere transmission is an exact description of the role played by ISPs in the web and internet ecosystem. Theres really nothing mere about it, though merely transmitting high-definition video at several megabytes per second across hundreds of miles or more is a titanic feat requiring much infrastructure and expertise. But its what ISPs are good at, and its what we pay them for.

Fourth, users of landline telephones never knew the exact locations of every switch, operator, relay and transfer station. They did indeed rely on telephone companies to supply this information as part and parcel of the telecommunications service they asked for.

Fifth, for that matter, the ISPs themselves dont know the location of most of this data. As I mentioned before, much of it is encrypted, or passes through a proxy, or is cached on the fly by Google or Netflix. ISPs follow the instructions of these services as items are shifted among the global data centers run by Pinterest and Instagram, dutifully transmitting packets from the point specified by the user to another point, either themselves or another service.


These are the problems I encountered in the first two pages of this section. The intro is also full of misinformation, most of which, however, I already addressed in this article summarizing the arguments against net neutrality.

The NPRM is 75 pages, and I plan to read every word of it. But I had to get this astonishingly wrong beginning out into the open, because boy is this a bad start for the FCCs agenda.

Want to let the FCC know about how wrong their analysis is? Heres how to comment on the proposal to roll back net neutrality.