Its ordinarily understandable when a journalist makes a technical mistake regarding network topologies. But the ordinary benefit of the doubt doesn’t apply to TechCrunch’s mistaken accusation that the FCC’s analysis of net neutrality “deliberately” misrepresents how the internet works. When a publication puts “tech” in its name, it ought to know better, especially when the issue involves the relationship between network topologies and legal definitions.
TechCrunch erred when it ridiculed the FCC’s observation that “Internet service providers do not appear to offer ‘telecommunications,’” which the law defines as the transmission of information “between or among points specified by the user.” According to TechCrunch, broadband internet users “absolutely, 100 percent do specify the points” of their communications when they type in a URL because (again, according to TechCrunch) the statutory term “points” is ambiguous.
Though TechCrunch’s argument might appear reasonable when the term “points” is considered in isolation, courts interpret statutory terms within their broader statutory context. As the late Justice Scalia noted, “A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” When the term “points” is considered in context, it’s clear that broadband internet users don’t specify the points of internet transmissions.
In the context of communications regulation, “points” is a term of art with an accepted meaning that preexists its use in the definition of telecommunications, and like all terms of art, should be interpreted by reference to the industry to which it applies.
Because the FCC’s express jurisdiction is limited to communications that cross state boundaries, since at least 1945, the FCC has determined the nature of a communication by applying an “end-to-end” analysis. This analysis considers the “continuous path of a communication,” from the “point” at the inception of a communication to the end “point” at its completion, and typically rejects attempts to divide communications at intermediate points. As I explain in considerable detail here, when a user makes a plain old telephone call, the user specifies the end points of the call merely by dialing a telephone number, because each telephone number is assigned to a specific phone line or mobile device.
TechCrunch’s attempt to equate the use of an IP address (or its assigned URL) with dialing a telephone number is factually inaccurate. Unlike a telephone number, an IP address is not assigned to a specific line or device — an IP address identifies only the network interface (or “host”) between specific devices and the internet. On the broadband internet, the information associated with a URL can be transmitted to a user from the origin server or an intermediate device (e.g., via proxy caching using a third-party content delivery network). In marked contrast to the telephone network, when a user types a URL into a web browser, the user is not specifying an end point for a transmission; the user is specifying the original source of the information the user wants to retrieve.
Due to this fundamental difference between a circuit-switched phone call and internet routing, the FCC concluded over a decade ago that the origination and termination points of a broadband communication are “impossible” to specify. It’s thus axiomatic that broadband networks do not transmit information “between or among points specified by the user” as the legal definition of “telecommunications” requires. TechCrunch’s opposing claim is, in TechCrunch’s own words, “so backwards it’s ridiculous.”