On May 7, 2024, the FCC issued a Declaratory Decision reclassifying “broadband Internet access service” (“BIAS”) as a “telecommunications service” subject to FCC jurisdiction under Title II of the Communications Act. It was accompanied by an order exempting BIAS from most Title II regulations and a Report and Order applying a number of Open Internet rules to BIAS providers. (For clarity, the remainder of this blog will refer to the proceeding as the “Order.”)[1]
We summarized the key provisions affecting ISPs in an initial blog post on the topic earlier this month. In June, we’ll give our best guesses about what the future holds for net neutrality, the upcoming election, and possible congressional action. This post examines what some consider to be the centerpiece of the Order: The Open Internet Rules.
A brief history lesson on net neutrality
In the 2015 Open Internet Order, the FCC adopted “bright line” net neutrality rules applicable to BIAS: no blocking of legal content, no throttling of legal content, and no paid prioritization. The ink was barely dry on the new rules when, in January 2016, the new GOP-led agency released the “Restoring the Internet Freedom Order,” which largely converted net neutrality rules from prohibited behavior to actionable which were legal but which must be disclosed. to customers. . .
To say that net neutrality was a controversial issue in 2015-16 is an understatement. The issue caused a 3,000% increase in FCC Internet traffic, and the agency received approximately 22 million comments. In August 2018, the FCC’s Inspector General concluded that much of this was caused by a segment on John Oliver’s TV show.
While restoring net neutrality was identified early on as a priority for the Biden administration, it wasn’t until the fall of 2023, with the confirmation of Anna Gomez, that the administration was able to secure a Democratic majority on the Commission. After Commissioner Gomez’s confirmation, the Democrat-backed FCC moved immediately to re-enforce net neutrality rules.
Bright line rules
In the 2024 Order, the FCC reinstated several clear rules that:
- Prohibit BIAS providers from blocking lawful content, applications, services or non-harmful devices (“No Blocking”);
- Prohibit BIAS providers from impairing or degrading legitimate Internet traffic based on non-harmful content, application, service or device use (“No Inhibition”); and,
- Prohibit paid or related prioritization practices (“No Free Prioritization”).
The order also implemented a “general standard of conduct” that prohibits unreasonable interference or disadvantage in general, and adopted improvements to transparency rules that were narrowed by the FCC’s Restoring Internet Freedom Order in 2017.
No Blockage
In the Order, the FCC determined that “the freedom to send and receive lawful content and to use and provide applications and services without fear of being blocked remains essential to an open Internet” and expressed concern that BIAS providers could, in cases certain , rush to block the content of advantage providers. The no-blocking rule only applies to streams of legal content. BIAS providers may refuse to transmit illegal material, such as child pornography or material that infringes copyright. The rule also entitles end users to connect to, access and use any legal device of their choice, provided the device does not harm the network. The non-blocking rule prohibits network practices that block a specific application or service, or any particular class of applications or services, unless determined to be reasonable network management. Finally, this rule prohibits BIAS providers from charging edge providers a fee to avoid blocking edge providers’ content, services, or applications from end-user customers.
No drowning
The term “throttling” refers to behavior that is not outright blocking, but that prevents delivery of particular content, applications or services, or particular classes of content, applications or services. Under Open Internet rules, BIAS providers are prohibited from harming or degrading legitimate Internet traffic based on non-harmful content, application, service, or device use. The non-throttling rule prohibits conduct that is not outright blocking, but that the FCC believes would impede the delivery of particular content, applications or services, or particular classes of content, applications or services. The rule also prohibits conduct that impairs or degrades legitimate traffic on a non-harmful device or class of devices. The rule addresses cases in which a BIAS provider targets specific non-harmful content, applications, services or devices and NOT address that slows down or speeds up an end user’s connection to the Internet based on a choice clearly made by the end user. For example, a BIAS provider may offer a data plan in which a subscriber receives a certain amount of data at one speed level and any remaining data at a lower level.
There is no paid priority
Finally, the FCC reinstated the ban on paid or tied prioritization practices, subject to a narrow removal process. The term “paid priority” refers to the management of a broadband provider’s network to directly or indirectly favor one traffic over other traffic, including the use of techniques such as traffic shaping, prioritization, resource reservation or forms of other preferential traffic management, or (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entity. As with throttling, the FCC found that BIAS providers have an incentive and ability to engage in paid prioritization. However, the FCC may waive the ban on paid prioritization if an applicant shows that the practice of paid prioritization would provide a significant benefit to the public interest and would not harm the open nature of the Internet. A successful petition for a waiver would require the petitioner to provide evidence that the practice promotes competition, innovation, consumer demand, or investment and does not harm the open nature of the Internet. This can be done by providing evidence that the practice: (i) does not materially degrade or threaten to materially degrade the general public’s BIAS; (ii) does not impede consumer choice; (iii) does not harm competition, innovation, consumer demand or investment; and (iv) does not inhibit any form of expression, service or viewpoint. This is an extremely high level and waivers will not be granted routinely.
General standard of conduct
In addition to the above rules, the FCC also reestablished a “no unreasonable interference/disadvantage standard.” This standard allows the FCC to prohibit practices that unreasonably interfere with the ability of consumers or advantage providers to select, access, and use BIAS to reach each other. This standard will operate on a case-by-case basis, applying a non-exhaustive list of factors, and is designed to evaluate other current or future policies or practices of BIAS providers that are not covered by the core rules—and prohibit those that harm the Internet. open. The FCC provided guidance to BIAS providers regarding the implementation of the standard and adopted a non-exhaustive list of factors the agency will consider in its analysis. These factors include: (i) whether a practice allows for end-user control and enables consumer choice; (ii) whether a practice has anti-competitive effects in the market for applications, services, content or equipment; (iii) whether a practice affects consumers’ ability to select, access, or use lawful broadband services, applications, or content; (iv) the effect a practice has on broadband innovation, investment or deployment; (v) whether a practice threatens free expression; (vi) whether a practice is implementation agnostic; and (vii) whether a practice conforms to best practices and technical standards adopted by open, broadly representative, and independent Internet engineering, governance initiatives, or standards-setting organizations.
Transparency rule
The FCC also adopted improvements to existing transparency rules that require BIAS providers to publicly disclose accurate information about the network management practices, performance and commercial terms of its broadband Internet access services, sufficient to consumers to make informed choices about the use of such services and content. , providers of applications, services and equipment to develop, market and maintain internet offerings. BIAS providers must maintain the accuracy of these disclosures. When there is a material change in a provider’s disclosure of commercial terms, network practices, or performance characteristics, the provider has a duty to update the disclosure in a manner that is “timely and conspicuously disclosed in plain language accessible to current and future end-users and edge providers, the Commission and third parties wishing to monitor network management practices for possible violations of the Open Internet principles.”
* * *
These rules have been adopted, repealed and reused in the last decade. And they could be canceled again depending on the outcome of the 2024 presidential election.
[1] In the matter of preserving and securing the open Internet, WC Document No. 23-320, 17-108, Declaratory Decision, Order, Report and Order, and Order for Reconsideration, FCC 24-52, rel. May 7, 2024 (“Order”).
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