Derived From: 12/23/10 FCC Acts to Preserve Internet Freedom and Openness. R&O: Word | Acrobat (citations omitted)
"A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management ." Open Internet Order para. 63.
"A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer's broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination ." Open Internet Order para. 68.
"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 technology of the broadband Internet access service." Open Internet Order para. 82.
80. Since at least 2005, when the Commission adopted the Internet Policy Statement , we have recognized that a flourishing and open Internet requires robust, well-functioning broadband networks, and accordingly that open Internet protections require broadband providers to be able to reasonably manage their networks. The open Internet rules we adopt today expressly provide for and define "reasonable network management" in order to provide greater clarity to broadband providers, network equipment providers, and Internet end users and edge providers regarding the types of network management practices that are consistent with open Internet protections.
81. In the Open Internet NPRM , the Commission proposed that open Internet rules be subject to reasonable network management, consisting of "reasonable practices employed by a provider of broadband Internet access service to: (1) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (2) address traffic that is unwanted by users or harmful; (3) prevent the transfer of unlawful content; or (4) prevent the unlawful transfer of content." The proposed definition also stated that reasonable network management consists of "other reasonable network management practices."
82. Upon reviewing the record, we conclude that the definition of reasonable network management should provide greater clarity regarding the standard used to gauge reasonableness, expressly account for technological differences among networks that may affect reasonable network management, and omit elements that do not relate directly to network management functions and are therefore better handled elsewhere in the rules-for example, measures to prevent the transfer of unlawful content. We therefore adopt the following definition of reasonable network management:
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 technology of the broadband Internet access service.
Legitimate network management purposes include: ensuring network security and integrity, including by addressing traffic that is harmful to the network; addressing traffic that is unwanted by end users (including by premise operators), such as by providing services or capabilities consistent with an end user's choices regarding parental controls or security capabilities; and reducing or mitigating the effects of congestion on the network. The term "particular network architecture and technology" refers to the differences across access platforms such as cable, DSL, satellite, and fixed wireless.
83. As proposed in the Open Internet NPRM , we will further develop the scope of reasonable network management on a case-by-case basis, as complaints about broadband providers' actual practices arise. The novelty of Internet access and traffic management questions, the complex nature of the Internet, and a general policy of restraint in setting policy for Internet access service providers weigh in favor of a case-by-case approach.
84. In taking this approach, we recognize the need to balance clarity with flexibility. We discuss below certain principles and considerations that will inform the Commission's case-by-case analysis. Further, although broadband providers are not required to seek permission from the Commission before deploying a network management practice, they or others are free to do so, for example by seeking a declaratory ruling.
85. We reject proposals to define reasonable network management practices more expansively or more narrowly than stated above. We agree with commenters that the Commission should not adopt the "narrowly or carefully tailored" standard discussed in the Comcast Network Management Practices Order . We find that this standard is unnecessarily restrictive and may overly constrain network engineering decisions. Moreover, the "narrowly tailored" language could be read to import strict scrutiny doctrine from constitutional law, which we are not persuaded would be helpful here. Broadband providers may employ network management practices that are appropriate and tailored to the network management purpose they seek to achieve, but they need not necessarily employ the most narrowly tailored practice theoretically available to them.
86. We also acknowledge that reasonable network management practices may differ across platforms. For example, practices needed to manage congestion on a fixed satellite network may be inappropriate for a fiber-to-the-home network. We also recognize the unique network management challenges facing broadband providers that use unlicensed spectrum to deliver service to end users. Unlicensed spectrum is shared among multiple users and technologies and no single user can control or assure access to the spectrum. We believe the concept of reasonable network management is sufficiently flexible to afford such providers the latitude they need to effectively manage their networks.
87. The principles guiding case-by-case evaluations of network management practices are much the same as those that guide assessments of "no unreasonable discrimination," and include transparency, end-user control, and use- (or application-) agnostic treatment. We also offer guidance in the specific context of the legitimate network management purposes listed above.
88. Network Security or Integrity and Traffic Unwanted by End Users . Broadband providers may implement reasonable practices to ensure network security and integrity, including by addressing traffic that is harmful to the network. Many commenters strongly support allowing broadband providers to implement such network management practices. Some commenters, however, express concern that providers might implement anticompetitive or otherwise problematic practices in the name of protecting network security. We make clear that, for the singling out of any specific application for blocking or degradation based on harm to the network to be a reasonable network management practice, a broadband provider should be prepared to provide a substantive explanation for concluding that the particular traffic is harmful to the network, such as traffic that constitutes a denial-of-service attack on specific network infrastructure elements or exploits a particular security vulnerability.
89. Broadband providers also may implement reasonable practices to address traffic that a particular end user chooses not to receive. Thus, for example, a broadband provider could provide services or capabilities consistent with an end user's choices regarding parental controls, or allow end users to choose a service that provides access to the Internet but not to pornographic websites. Likewise, a broadband provider serving a premise operator could restrict traffic unwanted by that entity, though such restrictions should be disclosed. Our rule will not impose liability on a broadband provider where such liability is prohibited by section 230(c)(2) of the Act.
90. We note that, in some cases, mechanisms that reduce or eliminate some forms of harmful or unwanted traffic may also interfere with legitimate network traffic. Such mechanisms must be appropriate and tailored to the threat; should be evaluated periodically as to their continued necessity; and should allow end users to opt-in or opt-out if possible. Disclosures of network management practices used to address network security or traffic a particular end user does not want to receive should clearly state the objective of the mechanism and, if applicable, how an end user can opt in or out of the practice.
91.. Numerous commenters support permitting the use of reasonable network management practices to address the effects of congestion, and we agree that congestion management may be a legitimate network management purpose. For example, broadband providers may need to take reasonable steps to ensure that heavy users do not crowd out others. What constitutes congestion and what measures are reasonable to address it may vary depending on the technology platform for a particular broadband Internet access service. For example, if cable modem subscribers in a particular neighborhood are experiencing congestion, it may be reasonable for a broadband provider to temporarily limit the bandwidth available to individual end users in that neighborhood who are using a substantially disproportionate amount of bandwidth.
92. We emphasize that reasonable network management practices are not limited to the categories described here, and that broadband providers may take other reasonable steps to maintain the proper functioning of their networks, consistent with the definition of reasonable network management we adopt. As we stated in the Open Internet NPRM , "we do not presume to know now everything that providers may need to do to provide robust, safe, and secure Internet access to their subscribers, much less everything they may need to do as technologies and usage patterns change in the future." Broadband providers should have flexibility to experiment, innovate, and reasonably manage their networks.
PRIORITIZATION / NETWORK MANAGEMENT :
Discussion: The FCC has articulated four broadband principals. A footnote to those principals states "The principles we adopt are subject to reasonable network management." What is reasonable network management has become a source of significant debate. See Comcast / BitTorrent petition.
Opponents of NN argue that NN
restrictions would prevent network services from engaging in network management and
give control of the network to application and content providers. [FTC Staff Report 2007 p 60]
FTC Staff Report 2007
p 61: Net neutrality opponents point out that all network routers must make decisions
about transmitting data and argue that such decisions invariably have implications that
may not be strictly uniform or neutral. In particular, they note that networks have long
employed "hot potato" routing policies that hand off to other networks at the earliest
possible point data that is not destined for termination on their own networks. A
principal goal of hot potato routing is to reduce the usage of network resources.
Opponents note that, during periods of congestion, data packets may be rerouted along
another path or dropped altogether and that packets may need to be re-sent when
transmission errors occur.
FTC Staff Report 2007 p 62: Network neutrality opponents frequently argue that operators should be allowed
actively to restrict or block data that they believe may be harmful to the performance of their networks, citing reports that a relatively small number of users can potentially
overwhelm network resources through the use of bandwidth-intensive applications, such
as peer-to-peer file-sharing and streaming video. They warn that active network
management, prioritization, and other types of quality-of-service assurances are needed to
prevent the Internet, or its individual parts, from slowing down or crashing altogether in a
high-tech "tragedy of the commons." In their view, merely expanding network
capacity is expensive and may not be the most cost-effective method of network
management, and future content and applications may be even more resource-intensive
than applications like BitTorrent are today.
|ECPA & Net Neutrality
: Some experts have suggested that ISP behavior could potentially violation the Electronic Communications Act which prohibits interception and use of transmissions over networks except where such interception "is a necessary incident to the rendition of his service." Some have argued that deep packet inspection potentially violates ECPA. [Wong
] There is a pending litigation in California Federal District Court which claims that NEBUAD violated ECPA. See Valentine v. NEBUAD, NDCA. Catherine Gellis in her article argues that the use of NM technologies by universities to detect, monitor and control P2P traffic would be a violation of ECPA. [Gellis
There many ways that networks engage in "reasonable network management":
of NN argue that this is not about whether to engage in network
management; this is about reasonable versus unreasonable network management practices. This is about whether networks may engage in unreasonable network management such as discriminatory
practices with regards to access to online resources, websites, services, and applications, providing preferential service to affiliated services over non affiliated service. [FTC Report 2007 p 52] [Sidak p 5] [Queens]
Common carrier networks have always been permitted to engage in network management to thwart bad things; this does not offend the principles of common carriage. [Odlyzko Efficiency and Fairness 2009 48 ("vertical integration followed by railroads in getting into carriage of goods and passengers was usually justified on the grounds of safety")] See also Wiretaps, Gambling, Hackers (telephone networks always had authority to deal with these issues).
Proponents also note that positive rationales of network management have been applied inconsistently. Networks object to malware in P2P traffic and therefore block P2P traffic for the benefit of the subscriber; yet email likewise has malware but is not blocked. [Marsden Sec. 1.2.2]
Negative Discrimination: Networks
have discriminated against what equipment can be attached to networks,
what applications can be used over a network, whether calls go to one
competitor or to another, and even whether subscribers can criticize
the network service provider. A collection of examples of
discrimination can be found on the Discrimination
page. Examples of discrimination could include:
[FTC Report 2007 p 52-53] Examples of discriminatory behavior exists throughout telecommunications history. AT&T
did its best to prohibit attaching such things like modems and fax
machines (CPE) to its network, or to let computer
services use its network to build computer networks
(it was even prohibited at one point to place a cover over a telephone
it took rulings of
the FCC and litigation to pry open the AT&T network (there is a proceeding before the FCC that addresses whether consumers can attach the applications of their choice to mobile telephone services - arguing in part that mobile phone service providers are attempting to block consumers from using VoIP on their handsets [FTC Report 2007 p 53]).
Distinguishing Reasonable Network Management: There is a distinction between "reasonable network management" and "unreasonable network management" practices. [Berners-Lee] This distinction has been successfully been maintained in another body of law, wiretap law and ECPA, which prohibits the interception of transmissions except for instances where interception is necessary for the rendition of service.
Network Monitoring For Purposes of Serving Advertising
In May 2008, Charter Communications announced that it would monitor the internet traffic of its subscribers for the purpose of serving relevant advertising to those customers, increasing revenue to Charter, and bringing down prices to the customer. [See Charter Communications, Enhanced Online Experience: Frequently Asked Questions]
Quality of Service / Prioritization
Discussion: The historical design of the Internet was as an end-to-end, best-effort network, where high quality of service was not guaranteed. This worked fine for applications that could tolerate latency and jitter. Real time applications such as VoIP, gaming, and live video, however, are latency intolerant and require a superior QoS. Service providers argue that they must engage in network management in order ensure the QoS necessary for these applications. [Felten Sec. 3] [Valcke 3] [See OECD, “Internet Traffic Prioritization: An Overview”, Note by TIPS, 2007
Opponents argue that NN proposals would prohibit different QoS
guarantees. Sidak states "Network neutrality regulation would prevent an access provider from charging higher prices to suppliers of content and applications that require priority delivery." [Sidak p 4] [Atkinson p 2 (noting Markey Bill HR 5273 would limit the ability of service providers from providing and charging for high QoS)] [Jamison p 1 (describing premium delivery as "the net neutrality issue" and arguing that premium offerings would create an incentive for networks to invest).
Opponents argue "the notion that we currently have a
'neutral' Internet is simply false." [Ganley at 1]
FTC Report 2007 p 63: Network neutrality opponents argue that market transactions for prioritization and other forms of quality of service can, in many cases, allocate scarce network resources in a manner more consistent with the actual priorities of end users.284 Opponents further suggest that prioritizing streaming telemedicine video, for example, ahead of e-mail or network gaming transmissions to reduce latency and jitter would be socially beneficial.285
[Internet2 has consistently argued that the solution is not prioritization and discrimination, but to get rid of the scarcity by increasing the supply of bandwidth. With sufficient bandwidth, prioritization of any service, including telemedicine, is irrelevant, as it all gets through]
Net neutrality opponents thus argue that network operators should be allowed to prioritize the transmission of certain data or provide quality-of-service assurances for a fee in the same way that consumers pay for priority mail service. Some observers note that many other types of paid prioritization arrangements such as first-class airline seating, congestion pricing for automobile traffic and public transportation, and premium advertisement placements are commonplace and generally considered to be socially beneficial.286 In addition, they dispute the notion that non-prioritized data will be relegated to an unacceptable, antiquated slow lane. Rather, they argue that nonprioritized data traffic will continue to receive an acceptable level of basic service that will continue to improve over time along with more general advances in data transmission methods.287
As noted, proponents do not object to differentiated service offerings - as long as those offerings are equally available to all without discrimination.
This does highlight the semantic
difficulties of inventing new terms. Advocates have taken the new term "network neutrality," defined it at will, and then made arguments about
how their straw man definition stands or falls. In this case Ganley has
defined "neutrality" to mean "different service levels are
impermissible" and then knocked down his strawman when he found
different service level agreements. See [Jamison p 2 (characterizing Wu and Yoo as arguing against differentiated service, and then arguing that Wu and Yoo are wrong)]
However, when placed in the
historical context of common carriage jurisprudence, where different quality of service offerings were permissible, differentiated QoS does not cause consternation.
Timothy Wu responds specifically to the argument that NN would impede work on QoS; noting that QoS is an issue for small or private networks, but it is not a justification on the commodity Internet. [Wu FAQ] Over the commodity Internet, the QoS is best effort; there can be no differentiation of higher QoS or lower QoS over the commodity Internet because, when different Internet networks interconnect and exchange traffic, that traffic is exchanged on a "best effort level" and any QoS labels are ignored.
Ed Felten notes that if an application requires a higher speed then the commodity Internet can provide, assigning QoS priorities wont help; QoS might make the net steadier, but not faster. General Internet applications such as browsers and downloaded video are QoS tolerate. Video buffers the stream in order to compensate for jitter. Web pages may take a moment longer to load, but they will load. Felten also states that "if an app
needs much less average speed than the Net can provide, then QoS might also be
unnecessary." For these reasons he concludes, "I am not convinced - though I could be with more evidence - that QoS is a strong argument against net neutrality rules." [Felten Sec. 7]
FTC Report 2007 p 54 Net neutrality advocates also express concern that, short of outright blockage or
active degradation, network operators will present certain content and applications to
users in a preferential manner in exchange for payment. They express concern that
network operators may, for example, use packet-inspection technology to provide quicker
load times for certain providers' Web pages or faster and more consistent connections for
favored VoIP or streaming video providers. Some network operators have, in fact,
indicated that they would like to offer certain prioritized services or other kinds of
quality-of-service guarantees in exchange for a premium fee.
Some neutrality advocates object to the idea of a network offering prioritized data
transmission or quality-of-service guarantees in exchange for payment. That is, they
object to a deviation from the long-standing first-in-first-out and best-efforts transmission
characteristics of the Internet. They are concerned about the potential for prioritization to
result in blocking or degradation of non-favored content and applications. These
advocates are concerned that content and applications from providers affiliated with the
network operator or having a greater ability to pay will be available in a "fast lane," while
others will be relegated to a "slow lane," discriminated against, or excluded altogether.
Further, creating priority fast lanes, according to some advocates, necessarily would result in (intentionally or effectively) degraded service in the remainder of the network.
Likewise, some advocates object to the creation of private networks that might provide
prioritized data transmission or other forms of quality of service to only a limited number
of customers, arguing that this will represent the "end" of the Internet as we know it.
Some advocates, therefore, argue that content and applications providers should
not be allowed to pay a premium fee for prioritized data transmission, even if they want
to do so. They object, for example, to a possible two-sided market model where content
and applications providers pay networks for prioritization in the same way that merchants
subsidize the purchase price of a newspaper by paying for the placement of
advertisements in return for greater consumer exposure to their advertisements.
Instead, in this view, networks should be required to derive revenues principally from
providing Internet access to residential and business customers. Some advocates who
object to prioritized data transmission would, however, allow network operators to charge
end users more for the consumption of larger amounts of bandwidth.
Other advocates do not strictly object to prioritization or quality of service for a
fee. They argue, however, that different levels of prioritization should be offered on
uniform terms to all "similar" content and applications providers and that all end users be guaranteed a minimum level of access to the entire universe of Internet content.
Another advocate suggests that network operators should be free to create specialized
service parameters and to provide prioritized data transmission, but with a requirement
that networks also maintain a basic level of best-efforts Internet service.
Some network neutrality proponents further suggest that, as the speed of the
Internet continues to increase with the deployment of faster technologies like fiber-optic
wirelines and improved wireless transmissions, the issue of prioritization may become
irrelevant. They suggest that when Internet speeds of upwards of 100 megabits per
second ("Mbps") are widely available, first-in-first-out and best-efforts delivery at these
rates should be sufficient to transmit all Internet traffic without any problems, even for
advanced and time-sensitive applications. These proponents suggest that all congestion
and bandwidth scarcity issues will effectively disappear at these speeds and the issue of
prioritization will eventually be moot. A neutrality regime, therefore, can be seen as a
temporary remedy for a problem that ultimately will be outgrown and an important
measure that will prevent network operators from creating artificial scarcity in their
networks in the meantime to derive additional revenues by charging content and
applications providers for new types of data transmission. Thus, some of these proponents believe that, instead of allowing network operators to engage in prioritization,
policy makers should focus on creating incentives for the deployment of next-generation,
Network Management / Monitoring Tools
- CISCO Netflow "provides a session-level view of network traffic, recording information about every TCP/IP transaction that occurs over your network."
- Secure Decisions VIAssist (Visual Assistant for Information Assurance Analysis)
- Netflow Visualization, Dalhousie University Computer Science
- Michael Lucas, Monitoring Network Traffic with Netflow, ONLamp O'Reilly (Aug. 18, 2005)
- IETF RFC 6057, Comcast's Protocol-Agnostic Congestion Management System (Dec. 2010) ("This document describes the congestion management system of Comcast
Cable, a large cable broadband Internet Service Provider (ISP) in the
U.S. Comcast completed deployment of this congestion management
system on December 31, 2008.") (recommendations for ISP / ASP behavior)
- Rec. 1: ISPs and ASPs should disclose information about their user- or application- based congestion management practices...
- Rec. 2: ISPs and ASPs should use Best Practices or standardized practices, or seek industry review...
- Rec. 3: ISPs and ASPs should seek to minimize the degradation of certain users or applications while managing the congestion that triggered the practice
- Rec. 4: If application based congestion management practices are used, those based on a user's expressed preferences are preferred over those that are not
- Rec. 5: If application-based criteria are used by a network operator, they should be tested prior to deployment and on an ongoing basis
- Rec. 6: ASPs and CDNs should implement efficient and adaptive network resource management practices
- Mitigating the Coming Internet Crunch: Multiple Service Levels via Precedence, R Bohn, H W Braun, kc claffy, and S Wolff, Nov. 1993 Journal of High Speed Networks