Cybertelecom
Cybertelecom
Federal Internet Law & Policy
An Educational Project
Net Neutrality FCC Policy Statements
Dont be a FOOL; The Law is Not DIY

"How do you think they’re going to get customers? Through a broadband pipe. Cable companies have them. We have them. Now what they would like to do is use my pipes for free, but I ain’t going to let them do that because we have spent this capital and we have to have a return on it. So there’s going to have to be some mechanism for these people who use these pipes to pay for the portion they’re using. Why should they be allowed to use my pipes? The Internet can’t be free in that sense, because we and the cable companies have made an investment and [for] a Google or Yahoo! or Vonage or anybody to expect to use these pipes for free is nuts!” - SBC (aka AT&T) CEO Edward Whitacre Interview of Ed Whitacre, BusinessWeek November 7, 2005

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"Infrastructures, for purposes such as transportation and communication, have long been vital to national welfare. They knit together a country's economy by facilitating the movement of people, products, services, and ideas, and play important roles in national security." - NSFNet Final ReportPDF p. 4.

Open Internet Proceedings
Policy Statements
Open Internet Rules 2015
Framework for Broadband Internet NOI (Third Way)
National Broadband Plan Sec. 4.4
Network Neutrality Order 2010 (remanded by D.C. Cir)
Joint Petition for a Declaratory Ruling that Text Messages are a Title II Service and fall under anti discrimination provisions. Comments Due Feb. 13, 2008. Replies Due Mar. 14.
Broadband Connectivity Competition Policy , FTC Staff Report, (June 2007)
Broadband Market Practices
SKYPE has filed a petition with the FCC arguing that Part 68 CFR, also known as the Carterfone Decision, should apply to wireless telecommunications networks
Service Rules for the 698-746, 747-762 and 777-792 MHz Bands et al. , Second Report and Order, 22 FCC Rcd 15289, 15364 paras. 203-204 (2007); 47 C.F.R. § 27.16
Enforcement
"a 2008 Order against Comcast for interfering with peer-to-peer file sharing, which the Commission found “contravene[d] . . . federal policy” by “significantly imped[ing] consumers’ ability to access the content and use the applications of their choice.”" Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly Degrading Peer-to-Peer Applications; Broadband Industry Practices; Petition of Free Press et al. for Declaratory Ruling that Degrading an Internet Application Violates the FCC's Internet Policy Statement and Does Not Meet an Exception for “Reasonable Network Management, File No. EB-08-IH-1518, WC Docket No. 07-52, Memorandum Opinion and Order, 23 FCC Rcd 13028, 13054, 13057, paras. 44, 49 (2008)
Madison River Alleged to have Blocked Vonage Calls (resolved through settlement) Madison River Communications, File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (Enforcement Bur. 2005)
Mergers
Comcast / NBC Merger: agreed to abide by Open Internet 2010 obligations until 2018. Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. for Consent to Assign Licenses and Transfer Control of Licenses, MB Docket No. 10-56, Memorandum Opinion and Order, 26 FCC Rcd 4239, 4275, para. 94 & n.213 (2011)

AT&T agreed to be bound by the Network Neutrality principles as a part of AT&T / Bell South Merger Conditions. AT&T Inc. and BellSouth Corp. Application for Transfer of Control , Memorandum Opinion and Order, 22 FCC Rcd 5662, 5663, para. 2, 5727-28, para. 119 (2007)

The Network Neutrality provisions were integrated into the merger conditions of (these merger conditions expired October 2007):

  • SBC Commc'ns, Inc. and AT&T Corp. Applications for Approval of Transfer of Control , Memorandum Opinion and Order, 20 FCC Rcd 18290, 18392, para. 211& Appx F. (2005);
  • Verizon Commc'ns Inc. and MCI, Inc. Applications for Approval of Transfer of Control , Memorandum Opinion and Order, 20 FCC Rcd 18433, 18537, para. 221 (2005)
Time Warner and Comcast acquisition of Adelphia (2005) (shout out to Harold Feld for point this out) para 223: "The Commission held out the possibility of codifying the Policy Statement's principles where circumstances warrant in order to foster the creation, adoption, and use of Internet broadband content, applications, services, and attachments, and to ensure consumers benefit from the innovation that comes from competition. Accordingly, the Commission chose not to adopt rules in the Policy Statement. This statement contains principles against which the conduct of Comcast, Time Warner, and other broadband service providers can be measured. [emphasis added] Nothing in the record of this proceeding, however, demonstrates that these principles are being violated by Comcast or Time Warner or that the transactions before us create economic incentives that are likely to lead to violations. Additionally, the vigorous growth of competition in the high-speed Internet access market further reduces the chances that the transactions are likely to lead to violations of the principles." Applications for Consent to the Assignment and/or Transfer of Control of Licenses, Adelphia Communications Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors, to Time Warner Cable Inc. (Subsidiaries), Assignees, Adelphia Communications Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors and Transferors, to Comcast Corporation (Subsidiaries), Assignees and Transferees, Comcast Corporation, Transferor, to Time Warner Inc., Transferee, Time Warner Inc., Transferor, to Comcast Corporation, Transferee, MB Docket No. 05-192, Memorandum Opinion and Order, 21 FCC Rcd 8203, 8299, para. 223 (2006)

Open Access:

A precursor to the NN debate is the Open Access debate - this argument was put forth largely by independent ISPs who had plentiful access to consumers over the dial up networks, but knew that they would have difficulty getting access to consumers over closed broadband networks. Independent ISPs argued for access to the broadband networks so that they could over their Internet services to consumers on the same terms and conditions as the network infrastructure providers. The argument was premised largely on Computer II, which ruled that incumbent phone companies could offer Internet services, but if they did, they had to offer their transmission services to all other ISPs on the same terms and conditions. The incumbent could not bundle there telecommunications service with their email service forcing them to pay for the incumbents email service, even when they wanted the independent's email service. Largely the FCC ruled that Internet over broadband services such as DSL and Cable are Information services and therefore incumbents do not have to unbundle their networks, providing just the transmission service to people who wanted to build new service. However, in the AOL/TW merger, the FCC rules that AOL/TW had to give access to its network to 12 ISPs.

Internet over DSL which included the Policy Statement on Broadband Internet Access and the Consumer Protection in the Broadband Era NPRM
Net over Cable NPRM Para 87 (cable open access) Having concluded that Internet over Cable was an Information Service, the FCC released a Further Notice of Proposed Rulemaking in which it inquired, among other things,

Is the threat that subscriber access to Internet content or services could be blocked or impaired, as compared to content or services provided by the cable operator or its affiliate, sufficient to justify regulatory intervention at this time?

FCC 02-77 Order: Text | Word | Acrobat PDF ¶ 87.

AOL / TW merger FCC ruled AOLTW must provide access to its Internet over cable network to 12 independent ISPs including Earthlink. 12 ISPs did sign up for the offering. Some of the ISPs said that they knew that they were getting a bad deal, but "I had to get on the bus - it was the only bus in town." The only way these ISPs would get broadband access to their customers over cable was through this deal. Either they went out of business because they did not offer broadband, or they take a risk on the AOLTW deal even though they were pretty sure they would still go out of business.
Computer Inquiries (including attaching devices (aka CPE) to the network)
Common Carriage (US Post Office) (Telegraph) (Telephone)

See FDR Four Freedoms | Audio | Text | Four Freedoms Poster | FDR Memorial

Policy Statements:

FCC Chairman Powell advocated during his tenure for facilities based broadband competition. When it was clear to him that there was a risk this was not going to happen, he released his Four Freedoms Network Neutrality principles. Under Chairman Kevin Martin, these principles were revised and released in an order as a part of the FCC's DSL proceeding declaring Internet over DSL an information service. The FCC sought to enforce these statements against Comcast, however the enforcement action was overturned by the D.C. Circuit court.

FCC Chairman Powell's "Four Freedoms"
FCC Press Release 2005
FCC Order 2005
FCC NPRM 2009

As we continue to promote competition among high-speed platforms, we must preserve the freedom of use broadband consumers have come to expect. Thus, I challenge the broadband network industry to preserve the following “Internet Freedoms:”

Four principles to encourage broadband deployment and preserve and promote the open and interconnected nature of Public Internet:

Moreover, to ensure that broadband networks are widely deployed, open, affordable, and accessible to all consumers, the Commission adopts the following principles:

Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:
Freedom to Access Content: Consumers should have access to their choice of legal content;

consumers are entitled to access the lawful Internet content of their choice;

consumers are entitled to access the lawful Internet content of their choice. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user's choice over the Internet;
Freedom to Use Applications: Consumers should be able to run applications of their choice; consumers are entitled to run applications and services of their choice, subject to the needs of law enforcement; consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.

would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user's choice;

Freedom to Attach Personal Devices: Consumers should be permitted to attach any devices they choose to the connection in their homes; and

consumers are entitled to connect their choice of legal devices that do not harm the network; and consumers are entitled to connect their choice of legal devices that do not harm the network. would not be allowed to 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;
  consumers are entitled to competition among network providers, application and service providers, and content providers.

consumers are entitled to competition among network providers, application and service providers, and content providers.

fn 15: The principles we adopt are subject to reasonable network management.

would not be allowed to deprive any of its users of the user's entitlement to competition among network providers, application providers, service providers, and content providers;
     

would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and

Freedom to Obtain Service Plan Information: Consumers should receive meaningful information regarding their service plans. (this principal does not carry forward to the 2005 versions)     would be required to 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 rulemaking.

Compare this to the Open Data Network principles articulated by the NAS Computer Science and Telecommunications Board:

An Open Data Network includes the following characteristics:

  • Open to users: It does not force users into closed groups or deny access to any sectors of society, but permits universal connectivity, as does the telephone system.
  • Open to service providers: It provides an open and accessible environment for competing commercial or intellectual interests. For example, it does not preclude competitive access for information providers.
  • Open to network providers: It makes it possible for any network provider to meet the necessary requirements to attach and become a part of aggregate of interconnected networks.
  • Open to change: It permits the introduction of new applications and services over time. It is not limited to only one application, such as TV distribution. It also permits the introduction of new transmission, switching, and control technologies as these become available in the future.

[CSTB, Realizing the Info Future p. 3 1994] [See also CSTB, Realizing the Info Future p. 14 1994 ("The committee concludes that a national infrastructure capturing the ODN architecture will not be widely deployed if competitive forces alone shape the future; deregulation, along likely lines, will not be sufficient to guide the development and deployment of the ODN architecture. While anecdotal, numerous comments from inside the cable and telephone industries suggest that the perceived costs of adding the features that support openness are discouraging the necessary investment in the current competitive climate. The committee therefore concludes that these features will not be incorporated in the evolving national information infrastructure without policy intervention. Needed now is direct action by government to ensure a planned, coordinated start to deploying the access circuit technology for the NII.")] [CSTB, Realizing the Info Future p. 67 1994 (" To define the minimum services that must be provided everywhere in the NII, it is necessary to establish a baseline of defined mandatory functionality. ")] [CSTB, Realizing the Info Future p. 68 1994 ("The real consequence of this definition of NII compliance is the maximizing of interoperation, the ability of end nodes attached to the ODN to communicate among themselves effectively, assuring users that any parts of the NII that can support a particular service will implement it in a compatible manner.")]

2005 FCC Advanced Services Order

Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review-Review of Computer III and ONA Safeguards and Requirements; Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CC Docket Nos. 02-33, 01-33, 98-10, 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986, 14987-88, para. 4 (2005) (Internet Policy Statement).

Consumer Protection in the Broadband Era NPRM

WC DOCKET NO. 05-271 Comments Due Jan. 17, 2006 Replies due Mar. 1, 2006 Consumer Protection in a Broadband Era

Powell Statements

Hearings

Lawrence Lessig to the FCC: "Neutral Networks Work"
Harold Feld at Stanford Hearing
Robb Topolski on Comcast TCP Resets
FCC Net Neutrality Hearing at Stanford by MediaCenter

David L Cohen, Comcast, Cambridge
CAUGHT: Comcast Paying to Push Public Out of Internet Debate

Related Activity

National Broadband Plan

4.4 COMPETITION FOR VALUE ACROSS THE ECOSYSTEM

“The Internet’s openness, and the transparency of its protocols, [has] been critical to its success.” As the FCC’s NPRM on Preserving the Open Internet explains, broadband is a powerful engine for innovation and investment in America in part because the Internet is an open platform, where anyone can communicate and do business with anyone else on a level playing field. The open Internet “ensures that users are in control of the content that they send and receive,” and that inventors and entrepreneurs “do not require the securing of permission” to innovate.

The NPRM notes that these characteristics have made the Internet vibrant, and its continued health and growth—as well as broadband’s ability to drive the many benefits discussed in this plan—depend on its continued openness “[B]roadband providers’ ability to innovate and develop valuable new services must coexist with the preservation of the free and open Internet that consumers and businesses of all sizes have come to depend on.”

In the latest step in a longstanding effort to ensure these interests remain balanced, the FCC adopted the NPRM on Preserving the Open Internet in October 2009, which launched a rulemaking process that is currently underway. The NPRM asked for public comment on six proposed principles:

  1. Content. 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. Applications and services. 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. Devices. 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. Competitive Options. 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.
  5. Nondiscrimination. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications and services in a nondiscriminatory manner.
  6. Transparency. 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.

The proposed rules also make clear that the principles would not supersede any obligation or limit the ability of broadband providers to deliver emergency communications or address the needs of law enforcement, public safety or homeland security authorities, consistent with applicable law.

FTC