This is the fourth and final research note from Smarika Kumar, one of the short-term social media research fellows at The Sarai Programme.

In the last post, I discussed the role classification plays in locating the internet as a subject of law. I reflected on how two very different, yet competing identities: an identity upon function, and an identity upon means, have been framed for the internet in the debate around Voice over Internet Protocol (VoIP) regulation in India. Once these competing identities have been framed, the question that looms is how law negotiates between the two? This post attempts to reflect on this question.

Offering a Car v. Offering a Pizza: A Win for Classification by Function over Classification by Means

A reading of the Brand X decision of 2005 of the United States Supreme Court in this background of regulation and pricing of VoIP services and the classificatory justifications that come with it, can provide the required insight to answer this question. This is because the Brand X decision is broadly about an issue of classification under the U.S. Communications Act as amended by the Telecommunications Act of 1996, concerning broadband cable internet service. In this case, the Communications Act defined among others, two categories of regulated services: telecommunication carriers, and information-service providers. While the Act regulated telecommunication carriers as common carriers, information-service providers were not mandated to be regulated as common carriers. Regulation as common carriers implied among other things, that telecommunication carriers must charge just, reasonable and non-discriminatory rates to their customers, and make their communication networks interoperable with the networks of other carriers.[1] The case was brought to court when the Federal Communications Commission (FCC), the telecommunications regulatory agency in the US, sought to require cable companies providing broadband internet services to offer other ISPs access to their facilities on the terms of common carrier. This move was resisted by the cable companies on the ground that cable modem service did not qualify as a “telecommunication service” and hence could not be regulated as a common carrier.

The question before the court then was whether broadband internet provided via a cable modem should be classified as a “telecommunication carrier”, or as an “information-service provider”? A “telecommunication service,” as defined by the 1996 Act, refers to “the offering of telecommunications for a fee directly to the public…regardless of the facilities used.”[2] “Telecommunications carrier(s)” are defined as “providers(s) of telecommunication services.”[3] The term “telecommunication” here refers to “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”[4] “Information service” on the other hand, refers to “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications . . . .”[5]

The decision of how to classify cable broadband service pivoted mainly on the meaning of the term “offering” in the definition of “telecommunication service.” The majority opinion of Justice Thomas did not see cable broadband service as “the offering of telecommunications”[6], whereas in his dissenting opinion, Justice Scalia did[7].

1. Envisioning Cable Broadband as an Integrated Product: A car dealer “offers” maybe a car, not so much an engine

To decipher what exactly an “offer” means in this context, each opinion utilised different analogies. Justice Thomas in his opinion used the analogy of a car dealership to explain the meaning of an “offer”:

“One might well say that a car dealership “offers” cars, but does not “offer” the integrated major inputs that make purchasing the car valuable, such as the engine or the chassis. It would, in fact, be odd to describe a car dealership as “offering” consumers the car’s components in addition to the car itself. Even if it is linguistically permissible to say that the car dealership “offers” engines when it offers cars, that shows, at most, that the term “offer,” when applied to a commercial transaction, is ambiguous about whether it describes only the offered finished product, or the product’s discrete components as well. It does not show that no other usage is permitted.”[8]

In making this analogy, Justice Thomas emphasises upon the ambiguity of the term “offer.” He points that it would not strictly be amiss to say that a car dealer “offers” a car, and “offers” an engine, even though it would probably be more common to hear of the dealership “offering” a car. Justice Thomas then goes into whether an internet connection offered through cable service can be understood as having sufficiently integrated transmission component with the finished product offered. If yes, then cable-modem service for broadband internet may not qualify as a “telecommunication service”, because the telecommunication component of the service would not be sufficiently distinct to be “offered” directly to the public. Upon consideration, this question is answered in the affirmative:

“The question, then, is whether the transmission component of cable modem service is sufficiently integrated with the finished service to make it reasonable to describe the two as a single, integrated offering. We think that they are sufficiently integrated, because a consumer uses the high-speed wire always in connection with the information-processing capabilities provided by Internet access, and because the transmission is a necessary component of Internet access. In the telecommunications context, it is at least reasonable to describe companies as not “offering” to consumers each discrete input that is necessary to providing, and is always used in connection with, a finished service. We think it no misuse of language, for example, to say that cable companies providing Internet service do not “offer” consumers DNS, even though DNS is essential to providing Internet access.”[9]

The final decision of the majority opinion eventually held that there was some ambiguity in the understanding of “offering” and whether cable broadband services should qualify as “telecommunications services”, in which case the FCC was held to be entitled to apply its own construction of “offering” and relevant classification (whereby FCC later classified cable-modem service as an “information service”).

However what is essential to note here that the car analogy enabled a perception of cable internet broadband as an organic whole, in terms of content and delivery be an integrated and indistinguishable service. It is the functional aspect of the cable-modem internet broadband service then, which is emphasised on by this treatment of the service as an integrated whole, with inseparable components. In a way, this establishes the identity of cable-modem service upon function.

2. Envisioning Cable Broadband as Offering Content and Delivery: A pizzeria “offers” pizza, and “offers” delivery

Justice Scalia on the other hand, brought up the analogy of a pizzeria offering home delivery to the situation of cable-modem service. While recognising the existence of integrated services and that of cable-modem service being one of such joint offering, he held that it was still possible to separate its components, and state that each component was being offered. Accordingly, he stated, “There are instances in which it is ridiculous to deny that one part of a joint offering is being offered merely because it is not offered on a “stand-alone” basis.”[10]

The pizzeria analogy was used to illustrate this idea:

“If, for example, I call up a pizzeria and ask whether they offer delivery, both common sense and common usage would prevent them from answering: “No, we do not offer delivery but if you order a pizza from us we’ll bake it for you and then bring it to your house.” The logical response to this would be something on the order of, “so, you do offer delivery.” But our pizza-man may continue to deny the obvious and explain, paraphrasing the FCC and the Court: “No, even though we bring the pizza to your house, we are not actually “offering” you delivery, because the delivery that we provide to our end users is “part and parcel” of our pizzeria-pizza-at-home service and is “integral to its other capabilities.”[11]

This analogy manages to recognise distinctly the two offers made by the pizzeria: that of the pizza, and its delivery, and in parallel, by the cable-modem internet broadband service—that of content, and its delivery. Accordingly, Justice Scalia argued that a cable-modem service did “offer” telecommunications directly to the public, and hence should be classified as a “telecommunications service”. Pertinently, here it is the separation of delivery and application/content as two distinct components of the service which allow for its classification as a “telecommunication service.” The ability to separate the components of the service betrays an emphasis on the means through which the service is realised. It clues into the idea that the identity of cable-modem service in this dissent is developed on means.

Why Function over Means?

In the Brand X decision then, function-based mode of classification trumped over means-based classification. Why though? I don’t think there is any particular, or a single answer to this. Very broadly, the case also sat on the debate of legislative and executive power struggles, and deciding the scope of authority of executive-controlled, specialised agencies like the FCC. A function-based classification allowed for an expanded discretion to such executive “expertise.”

But that is a pragmatic, consequence-dependant perspective on the question in front of us. What I think would be far more interesting is if one focused on the natures of these classifications themselves: Is there something inherently attractive or rational about a function-based classification over a means-based classification?

Modern classification, in the manner it erupted in the seventeenth century, placed incredible weight on observation. However this concept of observation itself limited several sites of knowledge. Foucault notes this in context of the development of the discipline of natural history, “Observation, from the seventeenth century onward, is a perceptible knowledge furnished with a series of systematically negative conditions[…] which leaves sight with almost an exclusive privilege, being the sense by which we perceive extent and establish proof, and in consequence, the meaning to an analysis partes extra partes acceptable to everyone.”[12]

Once the sense of sight is given privilege, it is the visible, and the visibly obvious that becomes the basis for the “correct” choice of classification. Nevertheless, not every visible aspect of the artefact forms the basis for classification: “…[E]verything that presents itself to our gaze is not utilisable…The area of visibility in which observation is able to assume its powers is thus only what is left after these exclusions: a visibility freed from all other sensory burdens and restricted, moreover, to black and white.”[13]

And what really is visible to a consumer of the internet? Perhaps it is the functionality of the connection—its ability to provide content. It is the car which is visible, not the engine, though of course any intelligent consumer will figure that an engine must exist somewhere if the car is to function. But it is the functioning car itself, as a whole, which is visible and valued. Justice Thomas notes that nobody would think twice about a remark that “cable companies providing Internet service do not “offer” consumers DNS, even though DNS is essential to providing Internet access.”[14] And maybe this lack of reflection is tied to the “invisible” role of DNS in providing the internet, an “invisibility” brought through “sufficient integration” for rendering the requisite function. And perhaps that is why classification based on an identity upon function seems the more alluring option by virtue of being “visible”, hence “rational.”

Bruno Latour talks about this invisibility of a well-functioning technology, in his case, the VAL, a high speed, driverless underground train network for urban transport: “Hundreds of thousands of Lille residents head for VAL every morning: they go its stations, follow its signs, , learn how to pay, wait on the platforms in front of closed doors, sense the train gliding past the glass windows in a white blur, listen to announcements made by a synthetic voice, , and look at the doors that close before they are carried off into dark tunnels. Actually that’s not true; they see nothing, feel nothing, hear nothing. Only tourists are still surprised to see a simple placard in place of a driver and are a little shaken up by the station stops required by the intrinsic security system. Lille residents have come to take VAL so much for granted that they no longer think about it, no longer mention it when they want to go from one place in the region to another.”[15] The means of making the train work, the means of making the internet work, are rendered invisible by the success of its function.

Which is not to say of course, that an identity upon means for the internet is not visible, or observable at all. But once identity upon function is chosen as the classificatory basis, the other identities do become ignored, hence invisible: “The system is arbitrary in its basis, since it deliberately ignores all differences and all identities not related to the selected structure.”[16] Which possibly only tells us that the path of law attempted to follow a rational choice for classification for the internet, providing it with “rational identity. But the choice of this “rational” itself seems purely subjective.

There is another aspect to be considered here: In an earlier post, I discussed the judgment in Shreya Singhal, which ruled Section 66A of the Information Technology Act to be unconstitutional. Therein, I made the argument that the judgment is borne out of a tension between two different ideas of the authority of law: one, that legal authority is borne off the transcendental nature of legal standards irrespective of the media they seek to govern; and another, that legal authority over a new medium is borne off effective transformation of legal standards to enable governance of the medium. What happens when one considers a similar analysis for the Justice Thomas’ reasoning? The function-based approach taken by Justice Thomas regards the internet as an integrated whole, unlike other media prior to it, like the telephone, thereby classifying cable-modem internet service as an “information service.” In this way, it manages to enable different legal standards than prior media to be applied to govern it. In Justice Scalia’s opinion however, cable-modem internet service is seen as a “telecommunication service” in a manner similar to other two-way communication media prior to it. This choice of classification allows for the use of same legal standards for both cable-modem broadband service, and other prior media. A similar tension like that in Shreya Singhal concerned with defining the authority of law is thus seen in the Brand X judgment as well, whereby different choices of classification seem to give rise to different imaginations of legal authority.

Notes:

[1] See page 3, Opinion of Justice Thomas in National Cable & Telecommunications Association v. Brand X internet Services (04-277) 545 U.S. 967 (2005), available at: https://www.law.cornell.edu/supct/pdf/04-277P.ZO

[2] 47 U. S. C. §153(46)

[3] 47 U. S. C. §153(44)

[4] 47 U. S. C. §153(43)

[5] 47 U. S. C. §153(20)

[6] Opinion of Justice Thomas in National Cable & Telecommunications Association v. Brand X internet Services (04-277) 545 U.S. 967 (2005), available at: https://www.law.cornell.edu/supct/pdf/04-277P.ZO

[7] Opinion of Justice Scalia in National Cable & Telecommunications Association v. Brand X internet Services (04-277) 545 U.S. 967 (2005), available at: https://www.law.cornell.edu/supct/pdf/04-277P.ZD

[8] See page 18, Opinion of Justice Thomas in National Cable & Telecommunications Association v. Brand X internet Services (04-277) 545 U.S. 967 (2005), available at: https://www.law.cornell.edu/supct/pdf/04-277P.ZO

[9] See page 18-19, Opinion of Justice Thomas in National Cable & Telecommunications Association v. Brand X internet Services (04-277) 545 U.S. 967 (2005), available at: https://www.law.cornell.edu/supct/pdf/04-277P.ZO

[10] See page 3, Opinion of Justice Scalia in National Cable & Telecommunications Association v. Brand X internet Services (04-277) 545 U.S. 967 (2005), available at: https://www.law.cornell.edu/supct/pdf/04-277P.ZD

[11] See page 3-4, Opinion of Justice Scalia in National Cable & Telecommunications Association v. Brand X internet Services (04-277) 545 U.S. 967 (2005), available at: https://www.law.cornell.edu/supct/pdf/04-277P.ZD

[12] Michel Foucault, The Order of Things: An Archaeology of the Human Sciences, 133 (Vintage Books, 1994).

[13] Michel Foucault, The Order of Things: An Archaeology of the Human Sciences, 133 (Vintage Books, 1994).

[14] See page 19, Opinion of Justice Thomas in National Cable & Telecommunications Association v. Brand X internet Services (04-277) 545 U.S. 967 (2005), available at: https://www.law.cornell.edu/supct/pdf/04-277P.ZO

[15] Bruno Latour, Aramis, or the Love of Technology, 75-76 (Harvard University Press, 1996).

[16] Michel Foucault, The Order of Things: An Archaeology of the Human Sciences, 140 (Vintage Books, 1994).