Monday, December 20, 2010

FCC's New Internet Rules: Transparency, No Blocking, Reasonable Net Management

The FCC approved new rules governing the management of Internet traffic, with the three Democrats on the commission voting in favor of the measure and the two Republicans voting against.


Key elements of the new Order include:


Rule 1: Transparency -- A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.


Rule 2: No Blocking -- 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. A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider's voice or video telephony services, subject to reasonable network


Rule 3: No Unreasonable Discrimination -- 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.


Significantly, "reasonable network management" is defined as follows: "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 users (including by premise operators), such as by providing services or capabilities consistent with a user's choices regarding parental controls or security capabilities; and by reducing or mitigating the effects of congestion on the network."


The FCC rules go on to say that "Pay for Priority" delivery of packets on wireline broadband networks is likely to run afoul of the "no unreasonable discrimination" clause because it would represent a significant departure from current practices.


Mobile broadband is largely exempt from the "reasonable network management" clause, as the document acknowledges that this market is an earlier-stage platform than fixed broadband, and it is rapidly evolving.


The FCC also acknowledges that "specialized services," such as some broadband providers' existing facilities-based VoIP and IP-video offerings, differ from broadband Internet access service. The FCC said it will continue to monitor whether these specialized services are bypassing open Internet protections, supplanting the open Internet, and enabling anticompetitive conduct.


FCC Chairman Julius Genachowski said "today a strengthened FCC is adopting rules to ensure that the Internet remains a powerful platform for innovation and job creation; to empower consumers and entrepreneurs; and protect free expression. These rules will increase certainty in the marketplace; spur investment both at the edge and in the core of our broadband networks, and contribute to a 21st century job-creation engine in the United States."


Speaking on behalf of the opposition, FCC Commissioner Robert McDowell said his dissent to the measures is based on four primary concerns: "1) Nothing is broken in the Internet access market that needs
fixing; 2) The FCC does not have the legal authority to issue these rules; 3) The proposed rules are likely to cause irreparable harm; and 4) Existing law and Internet governance structures provide ample consumer protection in the event a systemic market failure occurs."http://www.fcc.gov

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