So with the proviso that a more complete reading will uncover more, set out below is an overview.
The
FCC emphasized the need for narrowly crafted rules designed to “prevent
specific practices we know are harmful to Internet openness—blocking,
throttling, and paid prioritization—as well as a strong standard of conduct
designed to prevent the deployment of new practices that would harm Internet
openness.”
The Commission emphasized that ISPs have
both the incentive and ability to leverage access in ways that can thwart the virtuous
cycle of innovation and investment in the Internet ecosystem:
The key insight of
the virtuous cycle is that broadband providers have both the incentive and the
ability to act as gatekeepers standing between edge providers and consumers.
As gatekeepers, they can block access
altogether; they can target competitors, including competitors to their own
video services; and they can extract unfair tolls.
The
FCC considers it essential that ISPs not have the ability to exploit Internet
access in anticompetitive ways that would reduce demand for Internet services.
The Commission established a clear, ISP nondiscrimination rule:
Any person engaged
in the provision of broadband Internet access service, insofar as such person
is so engaged, shall not unreasonably interfere with or unreasonably
disadvantage (i) end users’ ability to select, access, and use broadband
Internet access service or the lawful Internet content, applications, services,
or devices of their choice, or (ii) edge providers’ ability to make lawful
content, applications, services, or devices available to end users.
Reasonable network management shall not be
considered a violation of this rule.
The
FCC also clarified and strengthened its requirement that ISPs operate with
transparency
so that both retail broadband subscribers and upstream carriers and sources of
content understand the manner in which they can acquire broadband services.
However the FCC specified that its Internet
access requirements only apply to the retail practices of ISPs, vis a vis
downstream end users, and not to the terms and conditions of interconnection
between ISPs and other upstream carriers and sources of content.
The
FCC now considers ISPs as gatekeepers standing between end users, who rely on common
carriage, telecommunications service and upstream content and applications still
treated as information services.
While the Commission determined that the
common carrier classification applies to both upstream and downstream interconnections,
it will refrain from applying the access restrictions on upstream
interconnection unless and until anticompetitive conduct arises.
Similarly the FCC specified that it will not
apply open Internet access rules on data services, which may traverse the same
networks used for Internet access.
However,
the Commission will seek to ensure that ISPs do not use this exemption as a way
to evade the nondiscrimination requirements.
The
FCC emphasized that while subjecting ISPs to Title II, common carrier
oversight, the Commission will use its statutory authority quite narrowly as
evidenced by the decision to forbear
from applying “27 provisions of Title II of the Communications Act, and over
700 Commission rules and regulations.”
The Commission recognized the need to explain
how the new requirements satisfy pressing needs, but in the most narrow and
well calibrated matter in light of virulent opposition from most ISPs and the
two Republican Commissioners.
The Order
reports that “there will be fewer sections of Title II applied than have been
applied to Commercial Mobile Radio Service (CMRS), [the regulatory
classification for wireless voice telecommunications service] where Congress
expressly required the application of Sections 201, 202, and 208, and permitted
the Commission to forbear from others.
In fact, Title II has never been applied in such a focused way.”
The FCC opted not to construct an order
applying Section 706 of the Communications Act as the sole foundation for
creating narrowly calibrated non-common carrier rules applicable to ISPs in
their capacity as information service providers. The Commission interpreted the D.C. Circuit
Court of Appeals for the District of Columbia as limiting the scope and
efficacy of Section 706 based on the court’s determination that the FCC could
not impose common carrier duties, even though the court acknowledged that ISPs
perform a traffic carriage function for upstream sources of content, commonly
referred to as edge providers:
[A]bsent a classification of broadband
providers as providing a ‘telecommunications service,’ the Commission could
only rely on section 706 to put in place open Internet protections that steered
clear of regulating broadband providers as common carriers per se. Thus, in order to bring a decade of debate to
a certain conclusion, we conclude that the best path is to rely on all
available sources of legal authority—while applying them with a light touch
consistent with further investment and broadband deployment. Taking the Verizon decision’s implicit
invitation, we revisit the Commission’s classification of the retail broadband
Internet access service as an information service and clarify that this service
encompasses the so-called ‘edge service.’”
The FCC established “clear,
bright-line rules” prohibiting ISPs from blocking lawful traffic, deliberately
slowing traffic down absent legitimate network management requirements and
offering to managed and deliver traffic on a preferential basis, commonly known
as “paid prioritization.” The Commission’s ban on traffic blocking uses clear
cut language:
A person engaged in
the provision of broadband Internet access service, insofar as such person is
so engaged, shall not block lawful content, applications, services, or
non-harmful devices, subject to reasonable network management.
The
FCC also establishes an absolute ban on throttling absent legitimate network management
requirements:
A person engaged in
the provision of broadband Internet access service, insofar as such person is
so engaged,
shall not impair or degrade
lawful Internet traffic on the basis of Internet
content, application, or service, or use of a non-harmful device, subject
to reasonable network management.
To prevent ISPs from dividing the
Internet into fast-lanes offered at a premium with slow lanes constituting an
inferior baseline, the FCC prohibits paid prioritization:
A person engaged in the provision of broadband
Internet access service, insofar as such person is so engaged, shall not engage
in paid prioritization. ‘Paid prioritization’ refers to the management of a
broadband provider’s network to directly or indirectly favor some traffic over
other traffic, including through use of techniques such as traffic shaping,
prioritization, resource reservation, or other forms of preferential traffic
management, either (a) in exchange for consideration (monetary or otherwise) from
a third party, or (b) to benefit an affiliated entity
In
addition to the specific prohibitions on blocking, throttling and paid
prioritization, the FCC established a general prohibition on ISP practices that
would unreasonably interfere with, or disadvantage downstream consumers and upstream
edge providers of content, applications and services. The Commission will consider on a
case-by-case basis whether an ISP has engaged in a practice “that unreasonably
interfere[s] with or unreasonably disadvantage[s] the ability of consumers to
reach the Internet content, services, and applications of their choosing or of
edge providers to access consumers using the Internet.” The Commission opted to apply more open-ended
evaluative than legal standard prohibiting commercially unreasonable practices
it had proposed in the 2014 Open Internet NPRM.
The Commission concluded that it should “adopt a governing standard that looks to
whether consumers or edge providers face unreasonable interference or
unreasonable disadvantages, and makes clear that the standard is not limited to
whether a practice is agreeable to commercial parties.”
The
FCC reported that it will use the “no-unreasonable interference/disadvantage”
standard to evaluate controversial subjects including the lawfulness of “sponsored
data” arrangements where an ISP accepts advertiser payment in exchange for an
agreement not to meter and debit the downstream traffic delivery. The Commission also will use this standard to
consider the lawfulness of data caps that tier service by the amount of
permissible downloading volume. In both
instances, the FCC sees the potential for an ISP to create artificial scarcity to
extract higher revenues, to favor corporate affiliates and third parties
willing to pay a surcharge as well as the potential for disadvantaging
competitors, e.g., using data caps to harm new vendors of video programming
that compete with an ISP service. On the
other hand, the Commission recognizes that service tiering can promote innovation
and new, customized services.
The Order expresses the view that reclassifying Internet access
as a telecommunications service provides the strongest legal foundation for the
Open Internet regulations, coupled with a secondary reference to Section 706 of
the Telecommunications Act of 1996 and Title III, which addresses the use of
radio spectrum and applies common carriage regulation to wireless voice
carriers.
By using the stronger Title II foundation, the FCC asserts that it can
establish clear and unconditional statutory authority, but also use the
flexibility contained in Title II to forbear from applying most common carrier
requirements not relevant to modern broadband service just as occurs for
wireless telephone service.
However with
a Title II regulatory foundation, the Order makes it possible for the FCC to
create an open Internet conduct standard that ISPs cannot harm consumers or
edge providers with enforcement tools available to sanction violations.
While the debate over network neutrality has
become quite contentious and hyperbolic, the three core requirements imposed by
the Order have generated much popular support.
With the common carrier reclassification, the FCC considers it lawful to
impose explicit requirements that ISPs not: block, legal content, applications,
services, or non-harmful devices; throttle, impair or degrade lawful Internet
traffic on the basis of content, applications, services, or non-harmful
devices; or offer paid prioritization that would favor some lawful Internet
traffic over other lawful traffic in exchange for additional compensation, or
based on corporate affiliation.
The Order addresses the need for ISPs to have the ability to manage
their networks and to offer specialized services not available to all
users. The FCC seeks to promote
flexibility without creating a loophole for practices that violate network
neutrality. Coupled with requirements that ISPs operate with transparency in
terms of how they provide service, the FCC will permit deviations from absolute
neutrality on a case-by-case basis taking into consideration the particular
engineering attributes of the technology used as well as the rationale
supporting the legitimacy of the practice.
The
FCC will have to defend its legal right to reclassify services in light of
changed circumstances. Additionally the
Commission will have to convince an appellate court that the Communications Act
authorizes service reclassifications, or lacks specificity thereby allowing an
expert regulatory agency to clarify ambiguities.
“We
ground the open Internet rules we adopt today in multiple sources of legal
authority—section 706, Title II, and Title III of the Communications Act. We marshal all of these sources of authority
toward a common statutorily-supported goal:
to protect and promote Internet openness as platform for competition,
free expression and innovation; a driver of economic growth; and an engine of
the virtuous cycle of broadband deployment.
We therefore invoke multiple,
complementary sources of legal authority. As a number of parties point out, our
authority under section 706 is not mutually exclusive with our authority under
Titles II and III of the Act.” Id. at
¶¶273-74.
