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Friday, October 23, 2009

Summary of FCC's Rulemaking on Net Neutrality and Preserving the Open Internet

Consistent with President Obama’s campaign promise to support network neutrality, the FCC has issued a broad sweeping Notice of Proposed Rulemaking proposing to codify the four Internet principles adopted by the Commission in 2005[1] along with two additional principles requiring nondiscrimination and transparency. [2] With the two Republican Commissioners dissenting in part and concurring in part,[3] the FCC has only started the controversial process for assessing what enforceable rules it should establish for regulating Internet Service Providers (“ISPs”), and possibly applications and content providers in certain instances, [4]independent of additional statutory authority. Because the FCC currently only had articulated a Policy Statement on the topic and because the scope of its jurisdiction conferred by statute remains uncertain, the FCC seeks to establish “rules to preserve an open Internet—the next step in an ongoing and longstanding effort at the Commission.” [5]

The FCC offers “draft rules, including a codification of the existing Internet policy principles, additional principles of nondiscrimination and transparency, [and] an acknowledgement that these principles apply to all forms of broadband Internet access . . .. [6] The Commission also proposes to exclude ‘managed’ or ‘specialized’ services” from network neutrality rules in light of the fact that that services such as IP-enabled ‘cable television, VoIP telephony, and specialized telemedicine [7] may not fit within the Commission’s definition of broadband Internet access [8] in light of the nature of these services and user requirements, i.e., the need for such “mission critical” bits to arrive without delay, possibly triggering prioritized processing which might otherwise constitute a violation of the Commission’s proposed nondiscrimination requirement.

The FCC proposes the following language as establishing the foundation for Internet neutrality with an emphasis on the wireline or wireless [9] link providing end users with access to the Internet [10]:

1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.

2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user’s choice.

3. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network.

4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers. [11]

5. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner. [12]

6. Subject to reasonable network management, a provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this part.[13]

In addition to the exemption for managed and specialized services, the Commission proposes to exempt ISPs from having to comply with the six principles when reasonable network management, [14] law enforcement, [15] and public safety and homeland/national security factors [16] warrant.

The FCC concludes that it has jurisdiction to establish enforceable rules on Internet access notwithstanding the fact that ISPs provide information services explicitly exempt from common carrier regulation established in Title II of the Communications Act. [17] The Commission bases it lawful authority to regulate ISPs on the basis of “ancillary jurisdiction” conferred by Title I of the Communications Act [18]as well as Sections 201(b), 230(b) and 706(a) of the Communications Act.[19] The Commission expects to adjudicate violations on a case-by-case basis and solicits comments on what procedural rules to adopt that could lead to citations and financial penalties for noncompliance.

[1] Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, Policy Statement, 20 F.C.C.R. 14986 (2005) (2005).

[2] Preserving the Open Internet, Notice of Proposed Rulemaking, GN Docket No. 09-191, FCC 09-93 (rel. Oct. 22, 2009); available at:

[3] Commissioner McDowell stated that “I do not share the majority’s view that the Internet is showing breaks and cracks, nor do I believe that the government is the best tool to fix it. I also disagree with the premise that the Commission has the legal authority to regulate Internet network management as proposed.” Statement of Commissioner Robert M. McDowell Concurring in Part, Dissenting in Part, Id. at 96 (questioning the scope of the FCC’s Title I “ancillary jurisdiction” and whether Sections 230 and 706 of the Communications Act, as amended, provide “the ancillary hook.”

[4] “Although the question of Internet openness at the Commission has traditionally focused on providers of broadband Internet access service, we seek comment on the pros and cons of phrasing one or more of the Internet openness principles as obligations of other entities, in addition to providers of broadband Internet access service.” Id. at ¶101.

[5] Id. at ¶2.

[6] Id. at ¶11. The Commission identified a number of prior proceedings that it implies support the inference that the rulemaking constitutes a logical and lawful extension of previous work: “As this history illustrates, the Commission is not writing on a blank slate in this proceeding. Rather, we are proposing a next step—seeking public input on draft rules—that is based on a substantial record, which includes discussion of nondiscrimination, transparency, and application of Internet openness principles to wireless broadband Internet access service providers.” Id. at ¶46.

[7] See Id. at ¶108.

[8] The Commission proposes to define Broadband Internet access as “Internet Protocol data transmission between an end user and the Internet. For purposes of this definition, dial-up access requiring an end user to initiate a call across the public switched telephone network to establish a connection shall not constitute broadband Internet access.” Id. at p. 65, Appendix A, Draft Proposed Rules for Public Input, Part 8 of Title 47 of the Code of Federal Regulations, §8.3 Definitions.

[9] “As our choices for accessing the Internet continue to increase, and as users connect to the Internet through different technologies, the principles we propose today seek to safeguard its openness for all users. We affirm that the six principles that we propose to codify today would apply to all platforms for broadband Internet access.” Id. at ¶154.

[10] “The rules we propose today address users’ ability to access the Internet and are not intended to regulate the Internet itself or create a different Internet experience from the one that users have come to expect. Instead, our proposals attempt to build on existing policies (discussed below) that have contributed to the Internet’s openness without imposing conditions that might diminish innovation or network investment. We seek to create a balanced framework that gives consumers and providers of Internet access, content, services, and applications the predictability and clarity they need going forward while retaining our ability to respond flexibly to new challenges.” Id. at ¶14.

[11] Rules one through four are set out at Id. ¶92.

[12] Id. at ¶104.

[13] Id. at ¶119.

[14] The FCC proposes to define reasonable network management as: “(a) reasonable practices employed by a provider of broadband Internet access service to (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (ii) address traffic that is unwanted by users or harmful; (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content; and (b) other reasonable network management practices.” Id. at ¶135, Appendix A.

[15] “Nothing in this part supersedes any obligation a provider of broadband Internet access service may have—or limits its ability—to address the needs of law enforcement, consistent with applicable law.” Id. at ¶143, Appendix A.

[16] “Nothing in this part supersedes any obligation a provider of broadband Internet access service may have—or limits its ability—to deliver emergency communications, or to address the needs of public safety or national or homeland security authorities, consistent with applicable law.” Id. at ¶146, Appendix A.

[17] “Beginning in 2002, the Commission has classified cable modem service, wireline broadband Internet access service, wireless-enabled broadband Internet access service, and broadband-over-powerline-enabled Internet access service as information services, removing them from potential regulation under Title II of the Communications Act.” Id. at ¶29 (citations omitted).

[18] “We have ancillary jurisdiction over matters not directly addressed in the Act when the subject matter falls within the agency’s general statutory grant of jurisdiction and the regulation is “reasonably ancillary to the effective performance of the Commission’s various responsibilities.” That test is met with respect to broadband Internet access service.”
citing United States v. Southwestern Cable Co., 392 U.S. 157, 172–73 (1968); United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972); Comcast Network Management Practices Order, 23 FCC Rcd at 13033–44, paras. 12–28; and the Commission’s Brief in Comcast v. FCC, No. 08-1291, at 25–50 (filed Sept. 21, 2009), available at

[19] Section 201(b) authorizes the FCC “to prescribe such rules and regulations as may be necessary in the public interest to carry out the provision of th[e] Act.” 47 U.S.C. §201(b); Section 230(b)(1) states that “It is the policy of the United States-- (1) to promote the continued development of the Internet and other interactive computer services and other interactive media;” 47 U.S.C. §230(b)(1); 706(a) states that the Commission “shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.” 47 U.S.C. §706(a).