Leaders of the House Energy and Commerce Committee and Senate Committee on Commerce, Science, and Transportation have unveiled draft legislation intended to ensure an Open Internet. The legislation will be the focus of House and Senate Hearings on January 21, 2015, and is guided by the 11 principles announced earlier. See the Regulatory Mix dated 1/15/15. The draft legislation would reinstate most of the 2010 FCC rules that were overturned by a federal appeals court. It would also require that broadband Internet access be considered an information service. Additionally, both the FCC and state commissions would be barred from relying on §706 of the Communications Act as a grant of authority to regulate broadband Internet access.
The draft legislation would define broadband Internet access 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. Such 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 obligations set forth in subsection (a).”
Subsection (a) of the draft legislation would prohibit a person engaged in the provision of broadband Internet access service from:
(1) blocking lawful content, applications, or services, subject to reasonable network management1;
(2) prohibiting the use of non-harmful devices, subject to reasonable network management;
(3) throttling lawful traffic by selectively slowing, speeding, degrading, or enhancing Internet traffic based on source, destination, or content, subject to reasonable network management; and
(4) engaging in paid prioritization2.
A provider of broadband Internet access service would also have to publicly disclose, in plain language, accurate and relevant information about its: network management practices; performance; and the commercial terms of its broadband Internet access services. The disclosures would have to be sufficient for consumers to make informed choices regarding use of the services and for content, application, service, and device providers to develop, market, and maintain Internet offerings. Disclosure would not be required for competitively sensitive information or information that could compromise network security or undermine the efficacy of reasonable network management practices.
The FCC could enforce these obligations only through adjudication of complaints and would be explicitly prohibited from expanding the openness obligations of broadband Internet access service providers. The FCC would have to adopt formal complaint procedures within 60 days of enactment of final legislation.
The draft legislation would not supersede or limit any obligation a broadband Internet access provider may have to address the needs of emergency communications, law enforcement, public safety, or national security authorities under applicable law. It also would not prohibit a provider’s reasonable efforts to address copyright infringement or other unlawful activity.
A section on consumer choice affirms the right of consumers to choose their service plans and broadband Internet access service. It also affirms the right of providers to offer specialized services, i.e., “services other than broadband Internet access service that are offered over the same network as, and that may share network capacity with, broadband Internet access service.’’ However, such services could not be offered or provided in ways that “threaten the meaningful availability of broadband Internet access service or that have been devised or promoted in a manner designed to evade the purposes of this section.”
The draft legislation declares that both broadband Internet access service and any other mass market retail service providing advanced telecommunications capability as defined in the Communications Act[3] is an information service. It would also amend §706 of the Communications Act to add a new section stating that neither the FCC nor a State commission may relay on §706 as a grant of authority.
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1 A network management practice is reasonable if it is “appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and any technology and operational limitations of the broadband Internet access service provider.”
2 Paid prioritization is defined as speeding up or slowing down of some Internet traffic in relation to other Internet traffic over the consumer’s broadband Internet access service by prioritizing or deprioritizing packets based on compensation or lack thereof by the sender to the broadband Internet access service provider.”
3 In the section referenced in the draft legislation, advanced telecommunications capability is defined, without regard to any transmission media or technology, as high speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.
