News

FCC Releases Proposed Rules on Net Neutrality

• By William Jackson
• 10/23/2009

The Federal Communications Commission (FCC) has released the drafts of proposed rules that would codify the principles of network neutrality adopted as commission policy in 2005. The proposed rules have drawn criticism from industry.

The rules were released yesterday on the FCC's Web site in a notice of proposed rulemaking adopted unanimously by the five-member commission. The process is an effort to balance the needs of Internet service providers and content providers, and would limit the ability of carriers to interfere with network traffic for business reasons, while protecting legitimate network management and emergency communications.

Focus of the proposed rules is on preserving an open Internet that is not controlled by carriers who can decide what services, applications and content can be accessed over networks, or at what service levels applications will perform. The FCC in 2005 adopted four principles of network neutrality, and has used them in a number of enforcement actions to stop carriers from blocking or throttling back traffic on specific services or applications.

Opponents of the proposed rules have characterized them as unnecessary and a solution in search of a problem. The FCC disagreed in its notice.

"Despite our efforts to date, some conduct is occurring in the marketplace that warrants closer attention and could call for additional action by the Commission, including instances in which some Internet access service providers have been blocking or degrading Internet traffic, and doing so without disclosing those practices to users," the notice states.

There also have been legal challenges to commission enforcement of the principles because they have not been adopted as formal rules. The current process could change that.

The commission said it does not propose radical changes in existing policies. "We propose to codify the four principles at their current level of generality," the notice states. "Doing so will help establish clear requirements while giving us the flexibility to consider particular circumstances case by case."

The FCC also is proposing two additional rules of non-discrimination and transparency. And it is changing the wording of the rules to indicate that they are obligations of network carriers, rather than consumer entitlements. All rules would be "subject to exceptions for the needs of law enforcement, public safety, national and homeland security authorities," so that emergency communications would not be disrupted.

The four proposed rules based on existing principles state that, subject to reasonable network management, a provider of broadband Internet access service:

• May not prevent any of its users from sending or receiving lawful content of the user's choice over the Internet.
  
  
• May not prevent any of its users from running lawful applications or using lawful services of the user's choice.
  
  
• 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.
  
  
• May not deprive any of its users of the user's entitlement to competition among network providers, application providers, service providers and content providers.

The two new proposed rules say providers:

• Must treat lawful content, applications and services in a nondiscriminatory manner.
  
  
• 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 FCC is seeking broad input on the proposals. Comments can be filed through the commission's Electronic Comment Filing System and are due by Jan.14, 2010. Reply comments are due by March 5. The process will include other avenues for public input, including workshops on key issues; feedback through the Web site at www.openinternet.gov, which will include regular blog posts by commission staff; and other new media tools, including IdeaScale, an online platform for brainstorming and rating solutions to policy challenges.

The proposed rulemaking is the culmination of a five-year effort by the commission to address the sometimes conflicting needs and interests of companies and organizations that provide the transport for Internet traffic, and those that provide services, content and applications accessed by end users.

"The commission is not writing on a blank slate in this proceeding," the FCC said in the notice. "Rather, we are proposing a next step -- seeking public input on draft rules -- that is based on a substantial record, which includes discussion of nondiscrimination, transparency, and application of Internet openness principles to wireless broadband Internet access service providers."