‘Net Neutrality’ in the News

The FCC is scheduled to vote today on a proposal from its Chairman to revise the FCC rules governing the network management practices of “last mile” wired broadband Internet providers — those (primarily cable) companies that provide broadband Internet connections to mainstream end users. The scheduled vote is to approve issuance of a Notice of Proposed Rulemaking, which, via the Federal Register, will be made formally available for public comment.

[Update: The Commission did indeed endorse the Notice of Proposed Rulemaking and initiate a four-month period of public consultation. The proposal has been subject to vociferous protest from many net neutrality proponents for, by failing to regulate the interconnections of last-mile ISPs with backbone providers and other networks, potentially allowing for the creation of “fast lanes” for providers of content or services with the means to deal directly with ISPs and bypass backbone networks. But the two dissenting Commission votes on the proposal actually came from Republican-appointed commissioners opposed to even this regulation of neutral management within the “last mile” services.]

[Update: The NPRM is now on the FCC website.]

The vote is scheduled to occur during today’s open Commission Meeting. The agenda and information for would-be attendees is available on the FCC’s website.

The proposed revisions to the FCC rules regarding broadband providers follow the D.C. Circuit Court’s rejection of the FCC’s previous regulation regarding “net neutrality” — the Open Internet Order of 2010. While not regarded as perfect by all “neutrality” proponents, the 2010 order was an effort by the FCC to compel broadband providers to manage their networks according to certain “open” practices favored by proponents of “net neutrality.” The rules called for transparency regarding network management practices, barred blocking of particular sites or services, and barred “unreasonable discrimination” in management of lawful Internet traffic while allowing some margin for “reasonable network management.” (Parallel versions of all the provisions, except for the one about discrimination, also applied to mobile broadband providers.)

In January, the D.C. Circuit’s decision in Verizon v. FCC (740 F.3d 623) determined that while the FCC does have authority under the Telecommunications Act to regulate broadband Internet services and their network management practices, and that the agency’s finding that the proposed regulations would foster the development and deployment of broadband was reasonable, the anti-discrimination and anti-blocking provisions of the 2010 rules treated the ISPs as “common carriers” and that their current classification (under other, still binding, determinations of the agency) exempts them from regulation as common carriers.

These provisions of the 2010 rules were, therefore, vacated and remanded to the FCC for appropriate revisions. The new proposals represent the FCC’s next attempt at open Internet regulations within the confines of the agency’s authority, under § 706 of the 1996 Telecommunications Act, to promote the “reasonable and timely” deployment of advanced telecommunications by means including regulation. They do not redefine the ISPs as services subject to Title II regulation as common carriers.

The Telecommunications Act of 1996 (Pub. L. No. 104-104), distinguishes between telecommunications carriers, to be regulated as common carriers under Title II of the Communications Act of 1934, and “information-service providers” which are not subject to Title II regulation. The FCC has classified cable broadband delivery as the latter, an “information service.” (The 1934 Act, as amended, comprises Chapter 5 of Title 47 of the U.S. Code, 47 USC §§151-621)

The 2010 Open Internet order, and accompanying materials, appears in the FCC Record, at 25 F.C.C.R. 17905. The rule appeared at 76 FR 59232, Sept. 23, 2011, and was codified as 47 C.F.R. § 8.1–8.17.

The 2010 Open Internet Order had followed the D.C. Circuit’s rejection of a previous effort by the FCC to enforce “net neutrality” when, in 2008, it ordered Comcast to cease network management that degraded some peer-to-peer networking applications.

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