The Federal Communications Commission’s 2018 Restoring Internet Freedom (RIF) Order reclassified broadband Internet access service from a telecommunications service to an information service, largely on the basis of an interpretation of broadband service that is fundamentally incorrect.  This reclassification gave the FCC the license not only to repeal the 2015 net neutrality rules, but to abdicate its role overseeing the broadband market.

The Restoring Internet Freedom Order's Strange View of Broadband Service

What is broadband service? The FCC’s 2015 Open Internet Order defined it as “a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to, and enable the operation of, the communications service, but excluding dial-up Internet access service.” This definition describes the core service that you pay for – your broadband provider promises to deliver your communications and requests for content to the party or website with which you are communicating and to bring back their communications and content to you. Importantly, broadband service does not include the applications you use on the Internet – email programs, web browsers, media players, cloud storage, social media, and the literally millions of other Internet-enabled apps. You almost always obtain these applications from entities other than your broadband provider.

The RIF Order’s view of broadband service is quite different. It asserts that your broadband service includes any applications that are bundled with your broadband plan, including cloud storage, parental controls, e-mail, speed test servers, backup and support, advertising, programming content, pop-up blockers, and instant messaging. The RIF Order does not attempt to explain how these bundled applications fit the definition of broadband service, namely either the capability to transmit data to, and receive data from, substantially all Internet endpoints or capabilities that enable this transmission function. Indeed, as discussed below, none of these bundled applications actually provide such capabilities.

How the Internet is Actually Designed and Built

When the Internet was designed and built, the designers recognized that they could not possibly envision all of the applications that would come to be. So, the fundamental design decision was to functionally separate the transmission and reception of data from the applications using that transmission.

The core capabilities of transmission and reception of data were put into the Internet Protocol (IP), whose function is carried out by Internet routers (along with the devices that you use).  In Figure 1, the Internet Protocol and the underlying layers are illustrated in blue hues. They offer transmission and routing of packets to the applications that ride over them.

The applications themselves were kept out of the Internet Protocol. Applications are carried out by your devices (e.g. laptops and smartphones) and by services offering those applications (e.g. webservers, video providers, cloud storage providers, and social media platforms). Applications are not carried out by Internet routers.  In Figure 1, the applications and content are illustrated in yellow-brown hues. They take advantage of the transmission offered by the Internet Protocol, and implement the features offered by each application.

What Services are Included in Broadband Service?

There is no doubt that broadband service provides the capability to transmit data to, and receive data from, substantially all Internet endpoints and the capabilities that enable this function.  Even the RIF Order left this definition unchanged from the 2015 Open Internet Order. This capability is provided by your broadband provider when it takes packets of information from your home modem or smartphone and delivers them to the party or website with which you are communicating, and vice versa. Your broadband provider uses the Internet Protocol to do this.

The Internet Protocol provides the capabilities that are referred to as telecommunications. Thus, there is no doubt that broadband service includes telecommunications. Even the RIF Order acknowledges this, although it fails to identify that this capability is provided by the Internet Protocol.

There is also no doubt that your broadband provider may bundle applications with your broadband service, e.g. email, cloud storage, and anti-virus programs. Applications provide the capabilities that are referred to as information services. Bundled applications, like other applications, are information services. 

However, the RIF Order asserts that such bundled applications are part of your broadband service. The problem here is that broadband service is defined as the capability to transmit data to, and receive data from, substantially all Internet endpoints and the capabilities that enable this transmission function. But applications do not provide the capability to transmit data to, and receive data from, substantially all Internet endpoints, nor do they offer capabilities that enable this transmission function. The Internet Protocol does this.

Furthermore, the Internet Protocol does not provide the capability for generating information. Applications do that.

Is the Transmission of Data Separable from Bundled Applications?

Even if the applications that a broadband provider may bundle with your broadband service were part of your broadband service as defined (which they are not), the legal question set out by the Supreme Court is whether these bundled applications and the underlying transmission are “functionally integrated … or functionally separate.”

The RIF Order asserts that the transmission portion of your broadband service is inseparable from the applications that your broadband provider may bundle with the service.  It asserts that such bundled applications are “functionally integrated information processing components that are part and parcel of the broadband Internet access service offering itself.”

As a matter of Internet architecture, these assertions are patently false. The Internet’s architecture dictates that the functions carried out by the Internet Protocol must be separable from the applications that ride over it. This separability achieves the design goal – to separate the transmission and reception of data from the applications using that transmission, so that applications could be designed by parties other than the broadband provider without requiring coordination with the underlying transmission function. This is the “permission-less innovation” that many talk about.

So, the most basic tenets of Internet architecture, which remain in place to this day, are that: (1) the transmission of data is provided by the Internet Protocol, (2) applications are provided by application providers which are usually not broadband providers, and (3) the transmission of data is separable from the applications that ride over it.

The expert agency that regulates communications should understand these fundamentals of Internet architecture.  And the “the factual particulars of how Internet technology works and how it is provided” should matter; even the Supreme Court said so.

Also see:

The FCC's Classification of Mobile Broadband Ignores Technology, History, and Common Sense

Scott Jordan is a Professor of Computer Science at the University of California, Irvine.  His current research interests are Internet policy issues, including net neutrality, interconnection, and device attachment.  He served as the Chief Technologist of the Federal Communications Commission during 2014-2016.

Benton, a non-profit, operating foundation, believes that communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities to bridge our divides. Our goal is to bring open, affordable, high-capacity broadband to all people in the U.S. to ensure a thriving democracy.

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