March 3, 2015


Who Is An ISP?

There’s talk in Washington about a major new telecommunications bill, to update the Telecom Act of 1996. A discussion draft of the bill is floating around.

The bill defines three types of services: Internet service (called “Broadband Internet Transmission Service” or BITS for short); VoIP; and broadband television. It lays down specific regulations for each type of service, and delegates regulatory power to the FCC.

In bills like this, much of the action is in the definitions. How you’re regulated depends on which of the definitions you satisfy, if any. The definitions essentially define the markets in which companies can compete.

Here’s how the Internet service market is defined:

The term “BITS” or “broadband Internet transmission service” –
(A) means a packet-switched service that is offered to the public, or [effectively offered to the public], with or without a fee, and that, regardless of the facilities used –
(i) is transmitted in a packed-based protocol, including TCP/IP or a successor protocol; and
(ii) provides to subscribers the capability to send and receive packetized information; …

The term “BITS provider” means any person who provides or offers to provide BITS, either directly or through an affiliate.

The term “packet-switched service” means a service that routes or forwards packets, frames, cells, or other data units based on the identification, address, or other routing information contained in the packets, frames, cells, or other data units.

The definition of BITS includes ordinary Internet Service Providers, as we would expect. But that’s not all. It seems to include public chat servers, which deliver discrete messages to specified destination users. It seems to include overlay networks like Tor, which provide anonymous communication over the Internet using a packet-based protocol. As Susan Crawford observes, it seems to cover nodes in ad hoc mesh networks. It even seems to include anybody running an open WiFi access point.

What happens to you if you’re a BITS provider? You have to register with the FCC and hope your registration is approved; you have to comply with consumer protection requirements (“including service appointments and responses to service interruptions and outages”); and you have to comply with privacy regulation which, ironically, require you to keep track of who your users are so you can send them annual notices telling them that you are not storing personal information about them.

I doubt the bill’s drafters meant to include chat or Tor as BITS providers. The definition can probably be rewritten to exclude cases like these.

A more interesting question is whether they meant to include open access points. It’s hard to justify applying heavyweight regulation to the individuals or small businesses who run access points. And it seems likely that many would ignore the regulations anyway, just as most consumers seem ignore the existing rules that require an FCC license to use the neighborhood-range walkie-talkies sold at Wal-Mart.

The root of the problem is the assumption that Internet connectivity will be provided only by large institutions that can amortize regulatory compliance costs over a large subscriber base. If this bill passes, that will be a self-fulfilling prophecy – only large institutions will be able to offer Internet service.


  1. I wouldn’t be at all surprised if some of these definitions had been crafted by lobbyists for the usual suspects, with the expectation that they would become barriers either to entry or to continued operation for smaller players — and especially the niche and noncommercial folks. (I know that some small ISPs had noticeable problems with the costs of complying with the old Universal Service tax rules, ditto.) Then again, CALEA’s drafts originally applied to local-area networks, so it could just be bad drafting.

    Since essentially all of these small players have large upstream providers who can watch their traffic characteristics, it’s unlikely that they’ll be able to simply ignore the regs if any significant effort is put into identifying unregistered “ISPs”. (Meanwhile, it’s quite possible that the definition could be read to exclude anyone who only provides large-scale interconnections and doesn’t service leaf nodes.)

    There’s another possible outcome for the bill that might be even more welcome to the mega-ISP’s, namely that the consumer-protection rules would be weakened or dropped because there are members of the “ISP” class for whom they would be too onerous.

  2. I haven’t read the draft bill itself yet, but based on the portion that Ed extracts above it seems odd to me that there’s no specific reference to “broadband” in the definition of a “broadband Internet transmission service.”

    Here’s another preposterous interpretation of this bill. Amateur (ham) radio operators use a modified version of the X.25 link layer protocol known as AX.25 for a variety of short-haul digital communications (the typical speed of which is 1200 bps, which hardly qualifies as broadband.) Are hams operating a BITS, and, if so, will we be subject to the new rules, including provisions like the “must carry” requirement? Oops, wait a minute — under Part 97, which regulates the Amateur Radio Service, hams are forbidden from carrying any traffic of a commercial in their communications. Hmmm. What to do, what to do!

    It’s high time that some segment of the federal government assumed responsibility for producing neutral technical assessments of bills like this rather than allowing our Congress critters, who obviously haven’t a clue, to let industry lobbyists write bills like this for them.

  3. [TinFoilHat]
    Perhaps the real intent is to ban Tor and open wireless points.

  4. avatar Alexander Wehr says:

    what about IPTV and IP telephony…

    how do those differ if theyre all carried over the internet, and how does one regulate those differently from the thoroughfares theyre superimposed upon.

  5. It’s strange that the definition is based on the use of packets (“packets, frames, cells, or other data units”). Presumably a stream based service is therefore exempt. I’m not sure of the details (embarrassing, because I’m using it for this comment) but isn’t Tor stream based? I thought it set up a stream and then everything went through it, forward and back.

  6. Cypherpunk,

    If I recall correctly, Tor makes stream connections as you describe, but then layers a packet-based protocol on top of the streams. I think that qualifies Tor as a BITS, since the bill’s definition doesn’t say that the packet-based protocol has to be at the bottom of the protocol stack. (If it did, it might exclude some ordinary ISPs.)