Wednesday, April 26, 2017

FCC Chairman Moves to Reverse Net Neutrality Rules

FCC Chairman Ajit Pai circulated a Notice of Proposed Rulemaking with his fellow commissioners at the FCC aimed at reversing the Title II "Net Neutrality" rules adopted in 2015.

In a published speech, Pai described the Title II rules as a regulatory mistake that slowed down telecom infrastructure spending in the United States by 5.6% percent, or $3.6 billion, between 2014 and 2016 for just the top 12 Internet service providers. He said the rules were not needed in 2015 because the Internet "was not broken" and that these 1930s era regulations were constraining the further rollouts of new infrastructure.


Key elements of Pai's proposal include (1) return the classification of broadband service from a Title II telecommunications service to a Title I information service (2) eliminate the so-called Internet conduct standard (3) seeks comment on how the FCC approach the so-called bright-line rules adopted in 2015.

The FCC will vote on the Notice of Proposed Rulemaking at its meeting in May.

https://www.fcc.gov/document/chairman-pai-speech-future-internet-regulation


FCC Votes 3-2 to Adopt Open Internet Rules

The Federal Communications Commission voted 3-2 to adopt a new set of Open Internet rules proposed by Commissioner Wheeler and backed by the Obama Administration. All of the new rules, which are based on the FCC's authority under Title II of the Communications Act of 1934, would apply to fixed and mobile broadband alike, while leaving room for reasonable network management and its specific application to mobile and unlicensed WiFi networks.

Here are the key provisions and rules of the Open Internet Order as outlined by the FCC:

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. It also prohibits practices that target specific applications or classes of applications.  
A Standard for Future Conduct:  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.  The FCC will have authority to address questionable practices on a case-by-case basis, and will provide guidance in the form of factors on how the Commission will apply the standard in practice.

Greater Transparency:  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 the FCC's Consumer and Governmental Affairs Bureau to determine whether to retain the exception and, if so, at what level.

Reasonable Network Management:    For the purposes of the rules, other than paid prioritization, an ISP may engage in reasonable network management. The FCC'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.

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.

Interconnection: the FCC address issue 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.

Legal Authority: the order relies 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. 

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