Award Winning Blog

Thursday, March 12, 2015

A Concise and Preliminary Summary of the FCC's Published Open Internet Order

        Soon after learning that the FCC would release it Open Internet Order, I started to read, skim and summarize. Nine or so hours later, I have generated a summary that should correctly provide the main points of this 400 page document.  A better formatted version of the summary is available at:
          So with the proviso that a more complete reading will uncover more, set out below is an overview.

            Opting to find and apply direct statutory links to establish lawful jurisdiction, the FCC’s 2015 Open Internet Order reclassifies broadband Internet access [1] as common carriage with no distinction between wireline and wireless Internet Service Providers (“ISPs”). [2] The Commission chose to apply muscular rules and regulations rather than continue treating ISPs as information service providers, subject to private carrier, government oversight.

            Reclassification offers the opportunity for more clear-cut regulatory oversight.  However, it certainly will trigger litigation whether the FCC has engaged in rational decision making based on a complete record evidencing substantially changed circumstances occurring in the ten years running from 2005, when the FCC opted to classify Internet access as an information service. [3]
            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.”  [4]  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. [5]
            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. [6] 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. [7]
            The FCC also clarified and strengthened its requirement that ISPs operate with transparency [8] so that both retail broadband subscribers and upstream carriers and sources of content understand the manner in which they can acquire broadband services. [9]  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. [10]
            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. [11]  While the Commission determined that the common carrier classification applies to both upstream and downstream interconnections, [12] it will refrain from applying the access restrictions on upstream interconnection unless and until anticompetitive conduct arises. [13]  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. [14]
            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 [15] from applying “27 provisions of Title II of the Communications Act, and over 700 Commission rules and regulations.” [16]  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.” [17]
            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.’”  [18]
               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. [19]
            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. [20]
            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 [21]
            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.” [22]  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.”[23]
            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. [24] 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. [25]
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.

[1]           The FCC defines “broadband Internet access service”  as: “A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service.  This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.” Protecting and Promoting the Open Internet, GN Docket No. 14-28, Report and Order on Remand, Declaratory Ruling, and Order, FCC 15-24, ¶25 (rel. March 12, 2015); available at: [hereinafter cited as 2015 Open Internet Order].
[2]           The FCC previously had imposed less stringent rules on wireless carriers in light of spectrum use, greater potential for congestion and recent entry in broadband markets.  The 2015 Open Internet Order treats wireless ISPs no differently than wireline ISPs: “Today, we find that changes in the mobile broadband marketplace warrant a revised approach.  We find that the mobile broadband marketplace has evolved, and continues to evolve, but is no longer in a nascent stage.  As discussed below, mobile broadband networks are faster, more broadly deployed, more widely used, and more technologically advanced than they were in 2010.  We conclude that it would benefit the millions of consumers who access the Internet on mobile devices to apply the same set of Internet openness protections to both fixed and mobile networks.” 2015 Open Internet Order at ¶88.
[3]           It is also well settled that we may reconsider, on reasonable grounds, the Commission’s earlier application of the ambiguous statutory definitions of ‘telecommunications service’ and ‘information service.’” Id. at ¶334. “The [Supreme] Court’s application of . . . [the] Chevron test in Brand X makes clear our delegated authority to revisit our prior interpretation of ambiguous statutory terms and reclassify broadband Internet access service as a telecommunications service.  The Court upheld the Commission’s prior information services classification because ‘the statute fails unambiguously to classify the telecommunications component of cable modem service as a distinct offering.  This leaves federal telecommunications policy in this technical and complex area to be set by the Commission . . . .’  Where a term in the Act ‘admit[s] of two or more reasonable ordinary usages, the Commission’s choice of one of them is entitled to deference.’  The Court concluded, given the ‘technical, complex, and dynamic’ questions that the Commission resolved in the Cable Modem Declaratory Ruling, ‘[t]he Commission is in a far better position to address these questions than we are.’” Id. at ¶332 (citations omitted).
[4]           Id. at ¶4.
[5]           Id. at ¶20.
[6]           “Broadband providers’ networks serve as platforms for Internet ecosystem participants to communicate, enabling broadband providers to impose barriers to end-user access to the Internet on one hand, and to edge provider access to broadband subscribers on the other.  . . .[T]he record provides substantial evidence that broadband providers have significant bargaining power in negotiations with edge providers and intermediaries that depend on access to their networks because of their ability to control the flow of traffic into and on their networks.   Another way to describe this significant bargaining power is in terms of a broadband provider’s position as gatekeeper—that is, regardless of the competition in the local market for broadband Internet access, once a consumer chooses a broadband provider, that provider has a monopoly on access to the subscriber.  . . . Broadband providers can exploit this role by acting in ways that may harm the open Internet, such as preferring their own or affiliated content, demanding fees from edge providers, or placing technical barriers to reaching end users. Without multiple, substitutable paths to the consumer, and the ability to select the most cost-effective route, edge providers will be subject to the broadband provider’s gatekeeper position.”   Id. at ¶80.
[7]           Id. at ¶21.  The FCC defines reasonable network management practice as one having
“a primarily technical network management justification, but does not include other business practices.  A network management practice is reasonable if it is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.” Id. at ¶32.
[8]           The enhanced transparency requirements include the duty to disclose prices, including the full monthly subscription charge, other fees and data caps and downloading allowances.  Additionally ISPs will have to report on actual network performance and disclose network practices, including congestion management, application-specific behavior, device attachment rules and security.  See Id. at ¶¶164-69.
[9]           “A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.” Id. at ¶23.
[10]          “[B]roadband Internet access service does not include virtual private network (VPN) services, content delivery networks (CDNs), hosting or data storage services, or Internet backbone services (to the extent those services are separate from broadband Internet access service).” Id. at ¶190.
[11]          “Based on this updated record, this Order concludes that the retail broadband Internet access service available today is best viewed as separately identifiable offers of (1) a broadband Internet access service that is a telecommunications service (including assorted functions and capabilities used for the management and control of that telecommunication service) and (2) various “add-on” applications, content, and services that generally are information services.”  Id. at ¶47. 
[12]          “[W]e find that broadband Internet access service is a ‘telecommunications service’ and subject to sections 201, 202, and 208 (along with key enforcement provisions).  As a result, commercial arrangements for the exchange of traffic with a broadband Internet access provider are within the scope of Title II, and the Commission will be available to hear disputes raised under sections 201 and 202 on a case-by-case basis: an appropriate vehicle for enforcement where disputes are primarily over commercial terms and that involve some very large corporations, including companies like transit providers and Content Delivery Networks (CDNs), that act on behalf of smaller edge providers.” Id. at ¶29.
[13]          “[W]e find that the best approach is to watch, learn, and act as required, but not intervene now, especially not with prescriptive rules.  This Order—for the first time—provides authority to consider claims involving interconnection, process that is sure to bring greater understanding to the Commission.” Id. at ¶31.
[14]          “The Commission expressly reserves the authority to take action if a service is, in fact, providing the functional equivalent of broadband Internet access service or is being used to evade the open Internet rules.” Id. at ¶35.
[15]          47 U.S.C §160(a) authorizes the FCC to streamline the scope of its Title II oversight by forbearing from applying many common carrier requirements: “[T]he Commission shall forbear from applying any regulation or any provision of this chapter to a telecommunications carrier or telecommunications service, or class of telecommunications carriers or telecommunications services, in any or some of its or their geographic markets, if the Commission determines that—
(1) enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory;  (2) enforcement of such regulation or provision is not necessary for the protection of consumers; and  (3) forbearance from applying such provision or regulation is consistent with the public interest.”
[16]          Id. at ¶5. The major provisions of Title II that  the Order will apply are: nondiscrimination and no unjust and unreasonable practices under Sections 201 and 202; authority to investigate complaints and resolve disputes under section 208 and related enforcement provisions, specifically sections 206, 207, 209, 216 and 217; protection of consumer privacy under Section 222; fair access to poles and conduits under Section 224, protection of people with disabilities under Sections 225 and 255; and providing universal funding for broadband service, but not the requirement to collect contributions to such funding through partial application of Section 254.
[17]          Id. at ¶38.
[18]          Id. at ¶42.
[19]          Id. at ¶15.   The FCC did opt to eliminate rules that would establish a baseline, minimum broadband access standard.  It acknowledged practical and technical difficulties associated with setting any such minimum level of access.  Additionally the Commission concluded that the no blocking and throttling rules would “allow broadband providers to honor their service commitments to their subscribers without relying upon the concept of a specified level of service to those subscribers or edge providers . . ..” Id. at ¶115.
[20]          Id. at ¶16.
[21]          Id. at ¶18.  Even though one can anticipate instances where a broadband subscriber would want ISPs to provide higher quality of service to reduce the potential for degraded service in the delivery of “must see” video content, the FCC largely forecloses this option.   ISPs cannot offer paid prioritization, even at the voluntary request or approval of subscribers based on the Commission’s apprehension that ISPs would abuse the opportunity by imbedding blanket authorization in subscription service agreements. “[T]here is no room for a blanket exception for instances where consumer permission is buried in a service plan—the threats of consumer deception and confusion are simply too great. Id. at ¶19.  However the FCC will allow exceptions on an ad hoc basis using rigorous criteria.  “The Commission may waive the ban on paid prioritization only if the petitioner demonstrates that the practice would provide some significant public interest benefit and would not harm the open nature of the Internet.” Id. at ¶130.  “First, the applicant must demonstrate that the practice will have some significant public interest benefit, such as providing evidence that the practice furthers competition, innovation, consumer demand, or investment.  Second, the applicant must demonstrate that the practice does not harm the nature of the open Internet, including, but not limited to, providing evidence that the practice:
           does not materially degrade or threaten to materially degrade the broadband Internet           access service of the general public;
           does not hinder consumer choice;
           does not impair competition, innovation, consumer demand, or investment; and
           does not impede any forms of expressions, types of service, or points of view.” Id. at ¶131. Note that the FCC “anticipate[s] granting such relief only in exceptional cases.” Id. at ¶132(citing extremely bandwidth intensive telemedicine applications as an example worthy of an exception).
[22]          Id. at ¶135.
[23]          Id. at ¶150.  The FCC identified a number of factors it will consider in future evaluations.  These include an assessment whether a practice allows end-user control and is consistent with promoting consumer choice, its competitive effect, whether consumers and opportunities for free expression are promoted or harmed, the effect on innovation, investment, or broadband deployment, whether the practice hiders the ability of end users or edge providers to use broadband access to communicate with each other and whether a practice conforms to best practices and technical standards adopted by open, broadly representative, and independent Internet engineering, governance initiatives, or standards-setting organization.  Id. at ¶¶139-145.
[24]          “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.
[25]          With an eye toward providing timely, certain and flexible enforcement of its open Internet rules, the FCC announced its intention to use advisory opinions similar to those issued by the Department of Justice’s Antitrust Division.  “Advisory opinions will enable companies to seek guidance on the propriety of certain open Internet practices before implementing them, enabling them to be proactive about compliance and avoid enforcement actions later.   The Commission may use advisory opinions to explain how it will evaluate certain types of behavior and the factors that will be considered in determining whether open Internet violations have occurred.  Because these opinions will be publicly available, we believe that they will reduce the number of disputes by providing guidance to the industry.” Id. at ¶229.