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Federal Internet Law & Policy
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Open Internet 2015 Rules (Wheeler)
Dont be a FOOL; The Law is Not DIY

Summary

Derived From: News Release. 02/26/2015.

New Rules to Protect an Open Internet While the FCC’s 2010 Open Internet rules had limited applicability to mobile broadband, the new rules—in their entirety—would apply to fixed and mobile broadband alike, recognizing advances in technology and the growing significance of wireless broadband access in recent years (while recognizing the importance of reasonable network management and its specific application to mobile and unlicensed Wi-Fi networks). The Order protects consumers no matter how they access the Internet, whether on a desktop computer or a mobile device.

Compare to historic articulations of Open Internet principles

The Open Internet Rules

Bright Line Rules:  The first three rules ban practices that are known to harm the Open Internet:

  • No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
  • No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
  • No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no “fast lanes.”  This rule also bans ISPs from prioritizing content and services of their affiliates.

The bright-line rules against blocking and throttling will prohibit harmful practices that target specific applications or classes of applications.  And the ban on paid prioritization ensures that there will be no fast lanes. 

A Standard for Future Conduct:  Because the Internet is always growing and changing, there must be a known standard by which to address any concerns that arise with new practices. The Order establishes that ISPs cannot “unreasonably interfere with or unreasonably disadvantage” the ability of consumers to select, access, and use the lawful content, applications, services, or devices of their choosing; or of edge providers to make lawful content, applications, services, or devices available to consumers.  Today’s Order ensures that the Commission will have authority to address questionable practices on a case-by-case basis, and provides guidance in the form of factors on how the Commission will apply the standard in practice.

Greater Transparency:  The rules described above will restore the tools necessary to address specific conduct by broadband providers that might harm the Open Internet.  But the Order recognizes the critical role of transparency in a well-functioning broadband ecosystem.  In addition to the existing transparency rule, which was not struck down by the court, the Order requires that broadband providers disclose, in a consistent format, promotional rates, fees and surcharges and data caps.  Disclosures must also include packet loss as a measure of network performance, and provide notice of network management practices that can affect service.  To further consider the concerns of small ISPs, the Order adopts a temporary exemption from the transparency enhancements for fixed and mobile providers with 100,000 or fewer subscribers, and delegates authority to our Consumer and Governmental Affairs Bureau to determine whether to retain the exception and, if so, at what level.

The Order also creates for all providers a “safe harbor” process for the format and nature of the required disclosure to consumers, which the Commission believes will lead to more effective presentation of consumer-focused information by broadband providers.

Reasonable Network Management:    For the purposes of the rules, other than paid prioritization, an ISP may engage in reasonable network management. This recognizes the need of broadband providers to manage the technical and engineering aspects of their networks.

  • In assessing reasonable network management, the Commission’s standard takes account of the particular engineering attributes of the technology involved—whether it be fiber, DSL, cable, unlicensed Wi-Fi, mobile, or another network medium.
  • However, the network practice must be primarily used for and tailored to achieving a legitimate network management—and not business—purpose.  For example, a provider can’t cite reasonable network management to justify reneging on its promise to supply a customer with “unlimited” data.

[USTA v. FCC Slip 21 DC Cir. 2015]

Scope

"The open Internet rules described above apply to both fixed and mobile broadband Internet access service.  Consistent with the 2010 Order, today’s Order applies its rules to the consumer-facing service that broadband networks provide, which is known as “broadband Internet access service” (BIAS) and is defined to be:

A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service.  This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part. 

2015 OI Rule para 187. [USTA v. FCC Slip 20 DC Cir. 2015]

"In this Order we use “broadband” and “broadband Internet access service” interchangeably, and “broadband provider” and “broadband Internet access provider” interchangeably." - Open Internet Report and Order, Docket 09-191, para 4 n. 2 (Dec. 23, 2010)

2010 OI Rule para 190: "190. We adopt our tentative conclusion in the 2014 Open Internet NPRM that broadband Internet access service does not include virtual private network (VPN) services, content delivery networks (CDNs), hosting or data storage services, or Internet backbone services (to the extent those services are separate from broadband Internet access service). The Commission has historically distinguished these services from “mass market” services and, as explained in the 2014 Open Internet NPRM, they “do not provide the capability to receive data from all or substantially all Internet endpoints.” We do not disturb that finding here. Likewise, when a user employs, for example, a wireless router or a Wi-Fi hotspot to create a personal Wi-Fi network that is not intentionally offered for the benefit of others, he or she is not providing a broadband Internet access service under our definition. "

Para 191 "We again decline to apply the open Internet rules to premises operators —such as coffee shops, bookstores, airlines, private end-user networks (e.g. libraries and universities), and other businesses that acquire broadband Internet access service from a broadband provider to enable patrons to access the Internet from their respective establishments—to the extent they may be offering broadband Internet access service as we define it today"

Para 193: "broadband Internet access service encompasses the exchange of Internet traffic by an edge provider or an intermediary with the broadband provider’s network."

"As in 2010, BIAS does not include enterprise services, virtual private network services, hosting, or data storage services.  Further, we decline to apply the open Internet rules to premises operators to the extent they may be offering broadband Internet access service as we define it today.

"We note that our use of the term “broadband” in this Order includes but is not limited to services meeting the threshold for “advanced telecommunications capability,” as defined in Section 706 of the Telecommunications Act of 1996, as amended.  47 U.S.C. § 1302(b).  Section 706 defines that term as “high-speed, switched, broadband telecommunications capability that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any technology.”  47 U.S.C. § 1302(d)(1).  The 2015 Broadband Progress Report specifically notes that “advanced telecommunications capability,” while sometimes referred to as “broadband,” differs from the Commission’s use of the term “broadband” in other contexts.  2015 Broadband Progress Report at n.1 (rel. Feb. 4, 2015).

OI Order 2015, para 25.

"Broad Protection Some data services do not go over the public Internet, and therefore are not “broadband Internet access” services (VoIP from a cable system is an example, as is a dedicated heart-monitoring service).  The Order ensures that these services do not undermine the effectiveness of the Open Internet rules. Moreover, all broadband providers’ transparency disclosures will continue to cover any offering of such non-Internet access data services—ensuring that the public and the Commission can keep a close eye on any tactics that could undermine the Open Internet rules. 

"Non-Broadband Internet Access Service Data Services.  The 2010 rules included an exception for “specialized services.”  This Order likewise recognizes that some data services—like facilities-based VoIP offerings, heart monitors, or energy consumption sensors—may be offered by a broadband provider but do not provide access to the Internet generally.  The term “specialized services” can be confusing because the critical point is not whether the services are “specialized;” it is that they are not broadband Internet access service.  IP-services that do not travel over broadband Internet access service, like the facilities-based VoIP services used by many cable customers, are not within the scope of the open Internet rules, which protect access or use of broadband Internet access service.  Nonetheless, these other non-broadband Internet access service data services could be provided in a manner that undermines the purpose of the open Internet rules and that will not be permitted.  The Commission expressly reserves the authority to take action if a service is, in fact, providing the functional equivalent of broadband Internet access service or is being used to evade the open Internet rules.  The Commission will vigilantly watch for such abuse, and its actions will be aided by the existing transparency requirement that non-broadband Internet access service data services be disclosed.  " OI Order 2015 para 35.

Interconnection: New Authority to Address Concerns For the first time the Commission can address issues that may arise in the exchange of traffic between mass-market broadband providers and other networks and services. Under the authority provided by the Order, the Commission can hear complaints and take appropriate enforcement action if it determines the interconnection activities of ISPs are not just and reasonable. [USTA v. FCC Slip 20 DC Cir. 2015 ("Because the Commission concluded that the telecommunications service offered to end users necessarily includes the arrangements that broadband providers make with other networks to exchange traffic—commonly referred to as “interconnection arrangements”—the Commission determined that Title II would apply to those arrangements as well. Id. at 5686 ¶ 195.")]

Legal Authority: Reclassifying Broadband Internet Access under Title II The Order provides the strongest possible legal foundation for the Open Internet rules by relying on multiple sources of authority including both Title II of the Communications Act and Section 706 of the Telecommunications Act of 1996.  At the same time, the Order refrains – or forbears – from enforcing 27 provisions of Title II and over 700 associated regulations that are not relevant to modern broadband service.  Together Title II and Section 706 support clear rules of the road, providing the certainty needed for innovators and investors, and the competitive choices and freedom demanded by consumers, while not burdening broadband providers with anachronistic utility-style regulations such as rate regulation, tariffs or network sharing requirements.

Forbearance: A modernized, light-touch approach Congress requires the FCC to refrain from enforcing – forbear from – provisions of the Communications Act that are not in the public interest. The Order applies some key provisions of Title II, and forbears from most others.  Indeed, the Order ensures that some 27 provisions of Title II and over 700 regulations adopted under Title II will not apply to broadband.  There is no need for any further proceedings before the forbearance is adopted.  The proposed Order would apply fewer sections of Title II than have applied to mobile voice networks for over twenty years. [USTA v. FCC Slip 20 DC Cir. 2015]

Effective Enforcement

Fostering Investment and Competition All of this can be accomplished while encouraging investment in broadband networks. To preserve incentives for broadband operators to invest in their networks, the Order will modernize Title II using the forbearance authority granted to the Commission by Congress—tailoring the application of Title II for the 21st century, encouraging Internet Service Providers to invest in the networks on which Americans increasingly rely.

Virtuous Circle

Definitions

Broadband Internet Access Service

End user” refers to any individual or entity that uses a broadband Internet access service; we sometimes use “subscriber” or “consumer” to refer to those end users that subscribe to a particular broadband Internet access service.  Cf. infra note 172 (defining “consumer” and “person”).  - Open Internet Report and Order, Docket 09-191, para 4 n. 2 (Dec. 23, 2010)

We use “edge provider” to refer to content, application, service, and device providers, because they generally operate at the edge rather than the core of the network.  These terms are not mutually exclusive.  See infra para. 20 - Open Internet Report and Order, Docket 09-191, para 4 n. 2 (Dec. 23, 2010)

Order

Appeal

Enforcement

Govt Activity

Chairman Pai

Notice of Proposed Rulemaking (May 2014)

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Hearings / Roundtables

News

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