¶ The Laboratorium (3d ser.)

Let me see if I have this right.

• FCC (1998): Broadband Internet is (probably) an “information service” rather than a “telecommunications service” under the Telecommunications Act of 1996.
• 9th Circuit (2000): Broadband Internet is a telecommunications service.
• FCC (2002): Broadband Internet is an information service.
• 9th Circuit (2003): We held in 2000 that broadband Internet is a telecommunications service, so the FCC cannot now classify it as an information service.
• Supreme Court (2005): The 9th Circuit is wrong. Under Chevron the FCC’s position that broadband Internet is an information service should be upheld as long as it is a reasonable interpretation of an ambiguous statute, which it is.
• Supreme Court (2005) (Scalia, J., dissenting): The FCC’s interpretation is not reasonable; broadband Internet is unambiguously a telecommunications service.
• FCC (2008): It’s illegal for Comcast to block BitTorrent on its broadband Internet.
• D.C. Circuit (2010): If the FCC is right that broadband Internet is an information service, then there is no law prohibiting Comcast from blocking BitTorrent.
• FCC (2011): Broadband Internet is still an information service, so we’ll use a different authority to enact a rule against blocking lawful traffic.
• D.C Circuit (2014): The rule is invalid because it has the effect of treating broadband Internet as a telecommunications service, even though you still say it’s an information service.
• FCC (2015): Broadband Internet is a telecommunications service.
• D.C. Circuit (2016): Under Chevron the FCC’s position that broadband Internet is a telecommunications service should be upheld as long as it is a reasonable interpretation of an ambiguous statute, which it is.
• FCC (2018): Broadband Internet is an information service.
• D.C. Circuit (2019): Under Chevron the FCC’s position that broadband Internet is an information service should be upheld as long as it is a reasonable interpretation of an ambiguous statute, which it is.
• FCC (2024): Broadband Internet is a telecommunications service.
• Supreme Court (2024): Chevron is overruled.
• 6th Circuit (2025): Broadband Internet is an information service.
• Likely incoming FCC chair (2025): Broadband Internet is an information service.

By my reckoning, the FCC has treated broadband Internet as an information service, then a telecommunications service, then an information service again, then a telecommunications service again, and is now poised to treat it as an information service for a third time. At various times, federal appellate courts have held that the Telecommunications Act can be read to treat broadband Internet as a telecommunications service, must be read to treat broadband Internet as an telecommunications service, can be read to treat broadband Internet as an information service, and must be read to treat broadband Internet as an information service.

Is this any way to run an information superhighway?

Update, January 2: Corrected the description of the FCC’s 1998 report (I had it backwards) and added a better link.