Legal Alerts and Articles
Proposed Rulemaking on Network Neutrality
On October 22nd, the Federal Communications Commission ("FCC") released a Notice of Proposed Rulemaking ("Notice") proposing new rules to protect the openness of the Internet. Facing what FCC Chairman Julius Genachowski called "the dangerous combination of an uncertain legal framework with ongoing as well as emerging challenges to a free and open Internet", the FCC's Notice seeks comment on the codification of six principles, as well as the application of those principles to non-wireline broadband and so-called "managed services" or "specialized services".
Background
In 2005, the FCC announced four general principles which would guide its interpretation of the Communications Act of 1934, as amended, to encourage broadband deployment as well as preserve and promote the open and interconnected nature of the internet. These principles stated that broadband consumers were entitled to a) access any lawful internet content of their choice; b) run applications and use services of their choice; c) connect legal devices of their choice; and d) competition among network, application, service, and content providers. However, these principles were merely stated as a means of guiding FCC policy, and were not established as enforceable rules.
In the Notice, the FCC identifies several challenges which it feels are threatening the openness of the internet to a degree which warrants new rules. In addition to the lack of competition among broadband providers, the FCC identifies the development of tools that allow network operators to prioritize or degrade different types of traffic as a primary challenge. The practice of traffic discrimination, the FCC says, has "the potential to change the Internet from an open platform that enables widespread innovation and entrepreneurship to an increasingly closed system with higher barriers to participation and reduced user choice and competition."
New Rules
In order to maintain the open and interconnected nature of the internet, the FCC now seeks to adopt as formal rules the four principles adopted in 2005 (see above), as well as two additional principles. The two additional principles that the FCC seeks to codify would require that broadband service providers a) treat all lawful content, applications and services in a nondiscriminatory manner, and b) disclose such information concerning network management to the public as is reasonably required to ensure the enjoyment of the protections provided by the other five principles. The FCC generally recognizes that the new rules will be subject to the demands of law enforcement, national security, delivery of emergency communications, and reasonable network management concerns. In addition, the FCC has stated that the new rules would not prohibit service providers from blocking the transfer of unlawful content.
Other Issues
While the FCC affirms that the six principles for which it has proposed new rules should apply to all broadband platforms, it recognizes in its Notice that the differing technologies and regulatory frameworks of non-wireline broadband (e.g. wireless broadband, satellite broadband, etc.) may require different implementations and applications of the new rules.
In addition, the FCC's Notice raises the issue of what it calls "managed" or "specialized" services, that is services which are internet-based and may utilize the same broadband networks, but which provide products or services which may be different from general broadband access from a regulatory and policy standpoint (e.g. IP-based voice and video subscription services). The Notice indicates that the FCC seeks to specifically define these types of services and determine whether, and if so to what extent, they should be subject to the six draft rules proposed in the Notice.
Request for Comment
The Notice requests comment from the public on all of the proposals and issues mentioned above. Comments are due to the FCC by January 14, 2010, and reply comments are due by March 5, 2010. For filing instructions or additional information about the proposed rules, see the Notice, which can be viewed at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A1.pdf.
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November 2009