Net Neutrality

At its Open Meeting this morning, the FCC voted to issue a Notice of Proposed Rulemaking seeking public comment on how best to protect and promote an open Internet. As expected, the Notice is based on the principles suggested by Chairman Wheeler (see TMI Blog posting FCC’s Wheeler “Sets the Record Straight” on New Open Internet Rules) but with an expanded discussion of the alternative of reclassifying broadband Internet access as a Title II (common carrier) service (see TMI Blog posting Debate Heats Up Over Proposed Net Neutrality Rules). The following summary is based on FCC documents released after the meeting and TMI notes from listening to the meeting.


When are comments due?

An extended four-month public comment period will be available. Interested parties may file comments until July 15, 2014 (60 days from May 15, 2014). Reply comments must be submitted by September 10, 2014 (57 days from July 15, 2014).


Who will the proposed rules apply to?

The FCC proposes to retain the definitions and scope of the 2010 rules, which governed broadband Internet access service providers, but not services like enterprise services, Internet traffic exchange and specialized services. The Notice will seek additional comment on the whether to revise the application of the rules to mobile broadband providers. (Under the 2010 rules, the transparency and anti-blocking rules applied to both mobile and fixed broadband providers but the anti-discrimination rule only applied to fixed broadband providers.)


Will there be a transparency rule?

The FCC proposes to retain and enhance the transparency rule (upheld by the D.C. Circuit) to provide consumers, edge providers, and the FCC with “tailored disclosures.” These disclosures could include information on the nature of congestion that may adversely impact the experience of end users, including at interconnection points, and information about new practices, like any paid prioritization, to the extent that it is otherwise permitted. The Notice will also ask whether broadband providers should be required to disclose specific network practices, performance characteristics (e.g., effective upload and download speeds, latency and packet loss) and/or terms and conditions of service to end users (e.g., data caps).


Will there still be a no-blocking rule?

The FCC proposes to retain the “no-blocking” rule but add a caveat prohibiting providers from blocking edge providers from obtaining access to end users. This is intended to ensure that all who use the Internet can enjoy robust, fast and dynamic Internet access.


What about “commercial reasonableness”?

The FCC proposes to add a new requirement that providers adhere to a legal standard of “commercial reasonableness.” The Notice will: (1) seek comment on how to define that standard, including how to devise a rigorous, multi-factor “screen” to analyze whether any conduct hurts consumers, competition, free expression and civic engagement, and other criteria; (2) ask whether paid prioritization should be banned outright; and (3) tentatively conclude that priority service offered exclusively by a broadband provider to an affiliate should be considered illegal until proven otherwise.


Will the rules address dispute resolution?

The FCC is proposing to adopt a multi-faceted process to promptly resolve and head off disputes, including an ombudsperson to act as a watchdog on behalf of consumers and start-ups and small businesses. The ombudsperson would have significant enforcement authority. The Notice will seek comment on how to ensure that all parties, and especially small businesses and start-ups, have effective access to the FCC’s dispute resolution and enforcement processes. It will also consider allowing anonymous reporting of violations to alleviate fears by start-ups of retribution from broadband providers.


What is the legal authority for the decision?

The FCC said it will seek comment on a series of detailed questions about what legal authority provides the most effective means of keeping the Internet open: Section 706 or Title II. As outlined by the Chairman, the proposal uses the Section 706 blueprint for restoring the Open Internet rules offered by the D.C. Circuit in its decision overturning the FCC’s 2010 rules. With respect to Title II, the Notice will also ask whether and how the FCC should forbear from applying certain Title II obligations should it decide to use that authority. The Notice will seek comment on the benefits of both Section 706 and Title II, including the benefits of one approach over the other to ensure the Internet remains an open platform for innovation and expression. The Notice will also: (1) explore other available sources of legal authority, including Title III for wireless services; and (2) seek comment on the best ways to define, prevent, expose and punish the practices that threaten an Open Internet.


Do the proposed rules address interconnection?

No. The Notice does not include rules addressing interconnection (“peering”) between the consumer’s network provider and the various networks that deliver to that ISP. However, the FCC does seek comment on whether it should expand the scope of the rulemaking to cover issues related to traffic exchange.


Where did the various Commissioners stand?

Chairman Wheeler and Commissioner Clyburn voted for the Notice; Commissioner Rosenworcel concurred. Commissioners Pai and O’Rielly dissented. All the Commissioners acknowledged the thousands of consumer comments the FCC has received in the past few weeks and encouraged the public to continue to participate in the proceeding.



FCC Commissioners