Regulatory Proceeding: The FCC first officially considered Network Neutrality issues in its Internet over Cable (Cable Modem Service) proceeding. 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 ¶ 87. This proceeding remains open.
Policy Statement: 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. Prior to these statements, network neutrality principles took the form of common carriage and the Computer Inquiries.
Antitrust: Opponents of NN regulation argue that any market failures in this area can be resolved through antitrust actions. [Pepper ("we believe such anticompetitive behavior should be punished on a case-by-case basis")] [Farber]
The FCC has taken several antitrust / merger related actions. The Network Neutrality provisions were integrated into the merger conditions of Verizon/MCI and SBC/AT&T; these merger conditions expire October 2007. The AT&T / Bell South Merger was approved with network neutrality conditions. The FCC has been criticized, however, for addressing this issue through ad hoc proceedings, create a patch work of conditions, instead of establishing one well defined rule.
Proponents of NN will note that antitrust actions are heavy actions that can take multiple years and even decades. These are actions that are taken between big players: AT&T versus MCI, or AT&T versus the US Government, or IBM versus the US Government. Antitrust action is not something an individual consumer can utilize against their carrier; it is not something for a quick action. Where there is a difference in negotiation powers, and were results need to be readily achieved, that is where public interest, consumer protection agencies such as the FCC and the FTC play a vital role.
Some expressed concern that antitrust solutions is basically closing the barn door after the horse is gone; the damage is already done and an antitrust litigation will not restore the injured companies to their original positions. This position has also been echoed by FCC Commissioner Copps.
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. The one exception to this was the AOL / TW merger where the FTC ruled that AOLTW must provide access to its Internet over cable network to 12 independent ISPs including Earthlink. Joseph Was, Public Policy Counsel for Comcast, stated at the FTC NN Hearing in February that no ISPs took advantage of this provision and therefore it was a failure. To the contrary, 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.
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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:”
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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:
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| 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. |
| 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. |
|
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. |
| 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) |
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. |
Network Neutrality > FCC Proceedings
Hearings
Papers
Proceedings
| Docket 07-52 |
NOI Broadband Market Practices |
Comments Due
June 15, 2007
Replies due
July 16, 2007 |
How to file comments |
- Press Release FOR IMMEDIATE RELEASE: NEWS MEDIA CONTACT: March 22, 2007 Mark Wigfield, 202-418-0253 Email: mark.wigfield@fcc.gov
FCC LAUNCHES INQUIRY INTO BROADBAND MARKET PRACTICES (aka Network Neutrality )
Washington, D.C. – The Federal Communications Commission today begins an inquiry to better understand the behavior of participants in the market for broadband services.
The Commission in its 2005 Internet Policy Statement announced four principles to encourage broadband deployment and to preserve and promote the open and interconnected nature of the public Internet. This Notice of Inquiry seeks information on the behavior of broadband market participants, including:
· How broadband providers are managing Internet traffic on their networks today
· Whether providers charge different prices for different speeds or capacities of service
· Whether our policies should distinguish between content providers that charge end users for access to content and those that do not
· How consumers are affected by these practices
The Notice of Inquiry further seeks comment on whether the Policy Statement should incorporate a new principle of nondiscrimination and, if so, how would "nondiscrimination" be defined, and how would such a principle read.
Action by the Commission, March 22, 2007, by Notice of Inquiry (FCC 07-31). Chairman Martin, Commissioners Tate and McDowell, with Commissioners Copps and Adelstein concurring. Separate statements issued by Chairman Martin, Commissioners Copps, Adelstein, Tate, and McDowell. Wireline Competition Bureau Staff Contact: Heather Hendrickson, heather.hendrickson@fcc.gov , 202-418-7295
Primary Documents
4/16/07
FCC Launches Inquiry into Broadband Market Practices.
NOI: Word | Acrobat
News Release (3/22/07): Word | Acrobat
Martin Statement: Word | Acrobat
Copps Statement: Word | Acrobat
Adelstein Statement: Word | Acrobat
Tate Statement: Word | Acrobat
McDowell Statement: Word | Acrobat
News
- Senators Push FCC on Network Neutrality, Internet News 7/18/2007
- Don't Break the Internet: NBC's Bad Idea Gets Worse When You Look at It, PK 7/18/2007
- Thousands Weigh in on Net Neutrality and So Do We, IP Democracy 7/18/2007
- Dorgan and Snowe File with FCC, PK 7/18/2007
- CDT Responds to Arguments in FCC Neutrality Inquiry, CDT 7/18/2007
- FCC Comments Show Overwhelming Support for Net Neutrality, Save the Internet 7/18/2007
- Senators renew quest for Net neutrality rules, CNET 7/18/2007
- Net Neutrality--A Content Take, Tech Lib Front 7/18/2007
- My comment on FCC's Network Neutrality NOI, Isen 7/10/2007
- By Ten to One, Public Urges FCC to Protect Net Neutrality, Save the Internet 6/19/2007
- 'Net Neutrality is Completely Unnecessary' - The ACU writes to the FCC, Broadband Reports 5/30/2007
- FCC Begins Net Neutrality Inquiry, Internet News 3/23/2007
- FCC OKs study of Internet service, America's Network 3/23/2007
- U.S. to study Internet service, Globe and Mail 3/23/2007
- FCC to study need for more Net neutrality regulation, CNET 3/23/2007
- Skype Petition
- 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. Part 68 permits end users to attach the devices (the Customer Premises Equipment) of their choice to the network. This would arguably mean that customers could select any handset with any add on, to use with a service provider, and not only the locked down handsets that the service provider offers.
- Merger Conditions
- AT&T agreed to be bound by the Network Neutrality principles as a part of AT&T / Bell South Merger Conditions.
- The Network Neutrality provisions were integrated into the merger conditions of Verizon/MCI and SBC/AT&T; these merger conditions expire October 2007.
- Internet over DSL
- Madison River Blocked Vonage Calls
- Net over Cable NPRM Para 87
- Related FCC Proceedings
- 47 USC 251(a)(2) (See Sec. 255) "
Each telecommunications carrier has the duty- ...
not to install network features, functions, or capabilities that do not comply with the guidelines and standards established pursuant to section 255 or 256 of this title. "
- Other FCC Activity
- Powell Statements
FTC
-
Broadband Connectivity Competition Policy , FTC Staff Report, (June 2007)
-
Broadband
Connectivity Competition Policy Workshop Feb 13, 2007
- Statements
- Robert Pepper, Senior
Managing Director, Global Advanced Technology, Cisco Systems
- FTC
Testifies on Broadband Internet Access Services, FTC 6/14/2006
- Unrepresented at FTC Broadband Workshop, Isen 2/23/2007
- FTC Urged To Boost Internet Oversight, Top Tech News 2/15/2007
- FTC: Can't We All Just Get Along? - Workshop on broadband tackles network neutrality, Broadband Reports 2/15/2007
- Network Neutrality Foes Square Off For FTC, Internet News 2/15/2007
- Feds seek middle ground in Net neutrality feud, CNET 2/15/2007
Prior Activity
|
, C. Wendell and Edith M. Carlsmith Professor of Law, Stanford Law School
