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 Whitacre 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.
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)
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?
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)
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.|
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.")]
- Chairman Pai and Com. O'Reily dissented from the 2015 Open Internet Order.
- FCC head Ajit Pai: You can thank me for carriers’ new unlimited data plans Ars Technica 2/28/17
- FCC Chair Claims Broadband Investment At Historic Low Level Because Of Net Neutrality; That’s Not What Numbers Say , Consumerists 2/28/17
- The New FCC Chairman’s Plan to Undermine Net Neutrality, Wired 3/1/17 ("But until this week, Pai hasn’t explained how he would go about reversing the rules. Now he appears to be staking his strategy to how much—or how little—broadband providers are spending to improve their networks.")
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
- On September 23, 2005, the Commission released the Notice of Proposed Rulemaking in WC Docket No. 05-271 (NPRM). In the NPRM, the Commission sought comment on the need for any non-economic regulatory requirements necessary to ensure that consumer protection needs are met by all providers of broadband Internet access service, regardless of the underlying technology. A summary of the NPRM was published in the Federal Register on October 17, 2005, triggering the cycle for comments and reply comments. - Public Notice Oct. 17
- The Federal Communications Commission (Commission) initiates this rulemaking to explore whether regulations we would adopt pursuant to the Commission's ancillary jurisdiction under Title I of the Communications Act (Act) should apply to broadband Internet access service, regardless of the underlying technology providers use to offer the service. The rulemaking seeks comment on whether the imposition of regulations in the areas of consumer privacy, unauthorized changes to service, truth-in-billing, network outage reporting, discontinuance of service, rate averaging requirements, and the corresponding ability of consumers to take advantage of Commission avenues for resolution of these consumer protection issues, is desirable and necessary as a matter of public policy, or whether we should rely on market forces to address some or all of the areas listed. The rulemaking also explores whether there are other areas of consumer protection not listed above for which the Commission should impose regulations. Overall, this rulemaking will determine whether any non-economic regulatory requirements are necessary to ensure that consumer protection needs are met by all providers of broadband Internet access service. -- 70 Fed. Reg. 60259 Oct. 17, 2005(
- Public Notice Oct. 17
- 70 Fed. Reg. 60259 Oct. 17, 2005
- 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
- May 5, 2011 House Committee of the Judiciary, "Ensuring Competition on the Internet: Net Neutrality and Antitrust: Part II, FCC Panel"
- STATEMENT OF CHAIRMAN JULIUS GENACHOWSKI, FCC, HEARING ON "ENSURING COMPETITION ON THE INTERNET: NETWORK NEUTRALITY AND ANTITRUST LAW", BEFORE THE SUBCOMMITTEE ON INTELLECTUAL PROPERTY, COMPETITION, AND THE INTERNET, COMMITTEE ON THE JUDICIARY. UNITED STATES HOUSE OF REPRESENTATIVES by Testimony. OCHJG | TXT
- STATEMENT OF COMMISSIONER ROBERT M. MCDOWELL, FEDERAL COMMUNICATIONS COMMISSION, BEFORE THE SUBCOMMITTEE ON INTELLECTUAL PROPERTY, COMPETITION AND THE INTERNET, COMMITTEE ON THE JUDICIARY. UNITED STATES HOUSE OF REPRESENTATIVES by Testimony. OCRMM | TXT
- Network Neutrality and Internet Regulation: Warranted or More Economic Harm than Good? February 16, 2011 The Subcommittee on Communications and Technology will hold a hearing on Wednesday, February 16, 2011, at 10:00 a.m. in 2123 Rayburn House Office Building. The hearing is entitled "Network Neutrality and Internet Regulation: Warranted or More Economic Harm than Good?" Witnesses to be announced. House Commerce Committee
- 7/21/08 En Banc Hearing on Broadband and the Digital Future, Carnegie Mellon University, Pittsburgh, Pennsylvania.
- Statements of FCC Commissioners,
Martin Statement: Word | Acrobat
Copps Statement: Word | Acrobat
Adelstein Statement: Word | Acrobat
Tate Statement: Word | Acrobat
McDowell Statement: Word | Acrobat
Agenda & Witnesses: Word | Acrobat
- 7/21/08 Broadband and the Digital Future - Public En Banc Hearing (Windows Media Format)
- Agenda and Witnesses (revised 7/21/08) : Word | Acrobat
- Agenda and Witnesses (revised 7/18/08) : Word | Acrobat
- Agenda and Witnesses (7/16/08) : Word | Acrobat
- News Release (6/30/08) : Word | Acrobat
- At FCC broadband hearing, speeches but no consensus, CNET 7/21/2008
- 4/22/8 Senate Commerce Committee Future of the Internet Hearing
- 4/17/08 Public En Banc Hearing at Stanford University on Broadband Network Management Practices.
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
Lawrence Lessig to the FCC: "Neutral Networks Work"
David L Cohen, Comcast, Cambridge
CAUGHT: Comcast Paying to Push Public Out of Internet Debate
- Assistant Secretary Nancy Victory spoke on "Net Neutrality: Let's Look Before We Leap" at the Progress and Freedom Foundation Conference., NTIA 6/30/03
- C Michael Copps: "THE BEGINNING OF THE END OF THE INTERNET? DISCRIMINATION, CLOSED NETWORKS, AND THE FUTURE OF CYBERSPACE", FCC 10/10/03
- CRS Report for Congress, Net Neutrality: Background and Issues . (May 2006)
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:
- 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.
- 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.
- 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.
- 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.
- Nondiscrimination. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications and services in a nondiscriminatory manner.
- 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 says it may be unable to regulate Comcast, Google, and Verizon, Ars Technica,
- Broadband Connectivity Competition Policy , FTC Staff Report, (June 2007)
- FTC Comments on Net Neutrality, PFF 7/5/2007
- Broadband Connectivity Competition Policy Workshop Feb 13, 2007
- 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