Neutrality FCC Policy Statements
"How do you think theyre 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 aint going to let them do that because we have spent this capital and we have to have a return on it. So theres going to have to be some mechanism for these people who use these pipes to pay for the portion theyre using. Why should they be allowed to use my pipes? The Internet cant 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 Withacre Interview of Ed Whitacre, BusinessWeek November 7, 2005
"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 Report p. 4.
Neutrality Proceedings Comcast / TWC Merger (possibly) Open Internet Remand 2014 Open Framework for Broadband Internet NOI (Third Way) Reopened Network Neutrality Order 2010 (remanded by D.C. Cir) Closed 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) VUZE, Free Press Petitions Regarding Network Management and Comcast's blocking of the P2P service Bit Torrent Closed 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 (2007); 47 C.F.R. § 27.16 Closed Madison River Alleged to have Blocked Vonage Calls (resolved through settlement) Closed Mergers Comcast / NBC Merger: agreed to abile by Open Internet obligations until 2018
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 (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 (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)
Closed Time Warner and Comcast acquisition of Adelphia (2005) (shout out ot 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. [empahsis 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." Closed
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 Policy Statement 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?
Closed 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. Closed Computer Inquiries (including attaching devices (aka CPE) to the network) Common Carriage (US Post Office) (Telegraph) (Telephone)
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
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.|
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).
- Remarks of Chairman Powell at the VON Fall 2004 Conference and Exposition in Boston, Mass., FCC 10/19/2004
- Remarks of Michael K. Powell Chairman, Federal Communications Commission At the Silicon Flatirons Symposium on “The Digital Broadband Migration: Toward a Regulatory Regime for the Internet Age” University of Colorado School of Law Boulder, Colorado February 8, 2004 (As prepared for delivery) PRESERVING INTERNET FREEDOM: GUIDING PRINCIPLES FOR THE INDUSTRY (aka Four Freedoms Speech)
- Powell Urges Industry to Adopt "Net Freedom" Principles., FCC 2/10/2004
Recorded Webcast: Audio-Only, Captioned | Audio/Video (third-party)
Copps Statement: Word | Acrobat
Adelstein Statement: Word | Acrobat
Tate Statement: Word | Acrobat
McDowell Statement: Word | Acrobat
12:45 p.m. Panel Discussion 1 - Network Management and Consumer Expectations
- Introduction: Lawrence Lessig, C. Wendell and Edith M. Carlsmith Professor of Law, Stanford Law School
- Rick Carnes , President, Songwriters Guild of America
- Michele Combs , Christian Coalition of America
- George Ou , Independent Consultant and Former Network Engineer
- Jon Peha, Associate Director of the Center for Wireless and Broadband Networking; Professor, Department of Electrical and Computer Engineering, and the Department of Engineering and Public Policy, Carnegie Mellon University
- Jean Prewitt , President and Chief Executive Officer, Independent Film & Television Alliance
- James P. Steyer , Chief Executive Officer and Founder, Common Sense Media
- Robb Topolski , Software Quality Engineer
3:00 p.m. Panel Discussion 2 - Consumer Access to Emerging Internet Technologies and Applications
- Introduction: Barbara van Schewick , Assistant Professor of Law, Stanford Law School
- Jason Devitt , Chief Executive Officer, SkyDeck
- Harold Feld , Senior Vice President, Media Access Project
- George S. Ford, Chief Economist Phoenix Center for Advanced Legal & Economic Public Policy Studies
- Brett Glass, Chief Executive Officer, Lariat.net (prohibits P2P on his wireless ISP)
- Blake Krikorian , Chief Executive Officer, Sling Media
- Jon Peterson , Co-Director, Real-Time Applications and Infrastructure (RAI), Internet Engineering Task Force
- Gregory L. Rosston, Deputy Director, Stanford Institute for Economic Policy Research
- Ben Scott, Policy Director, Free Press
4:30 p.m. Public Comment Period
6:30 p.m. Closing Remarks
7:00 p.m. Adjournment
Lawrence Lessig to the FCC: "Neutral Networks Work"
David L Cohen, Comcast, Cambridge
CAUGHT: Comcast Paying to Push Public Out of Internet Debate