400 pages and 305 Words: Initial Observations on the FCC’s New Open Internet Rules
Written by Erik Stallman
Today, the Federal Communications Commission released its much-anticipated net neutrality order. Although much has been said of the 400-page length of the document, some have pointed out that its core open Internet protections are set forth in four rules totaling 305 words. Over the next few days and weeks, CDT and others will be analyzing details of the order, including the sources of authority and lingering questions around issues like consumer privacy. But we’re starting with a few observations on the rules themselves. The rules provide clear open Internet protections and contain some important differences from and improvements over the 2010 rules.
The rules contain three bright-line prohibitions for broadband Internet access service providers: no blocking, no throttling, and no paid prioritization. The 2010 rules contained a no-blocking rule and a ban on unreasonable discrimination but did not address throttling or paid prioritization directly. Although the 2010 order contained language suggesting that throttling and paid prioritization would constitute unreasonable discrimination, the new rules’ bright-line prohibition is much clearer. Moreover, all of 2010 rules were subject to an exception for reasonable network management. The rules released today have the same reasonable network management exception for blocking and throttling but the ban on paid prioritization is unqualified. The order explains this distinction by saying that “paid prioritization is inherently a business practice rather than a network management practice.” Significantly, the bans on blocking, throttling, and paid prioritization apply to both fixed and mobile broadband networks, a significant improvement over the 2010 rules.
Distinction between technical network management and business practices
The new rules reflect the 2010 requirement that a reasonable network management practice be “appropriate and tailored to achieving a legitimate network management purpose” but further clarify that “[a] network management practice is a practice that has a primarily technical network management justification, but does not include other business practices.” The distinction between technical justifications and “other business practices” will not always be clear-cut, but the Commission does attempt to provide some guidance. For example, a practice “that permits different levels of network access for similarly situated users based solely on the particular plan to which the user has subscribed” is a business practice, not network management. Thus, conditioning access to a particular application on subscription to a specific data plan likely would not be considered network management.
The Internet conduct standard
The rule that is likely to receive the most attention in coming weeks is new 47 C.F.R. 8.11, “No unreasonable interference or unreasonable disadvantage standard for Internet conduct.” This rule stands in for the “unreasonable discrimination” prohibition in the 2010 rules and reads:
Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be considered a violation of this rule.
This conduct standard serves as a catch-all for Internet service provider practices and is a vast improvement over the “commercially reasonable” standard the Commission initially proposed. It is intended to prohibit practices that “harm Internet openness.” CDT’s initial comments suggested a similar “consistent with Internet openness” standard and the order notes that similarity. The order includes seven factors to guide the application of the general conduct standard to particular cases:
- end-user control
- competitive effects
- consumer protection
- effect on innovation, investment, or broadband deployment
- free expression
- application agnostic; and
- standard practices.
Both advocates and some commissioners raised concerns with a multi-factored conduct test and much will depend on how this standard is applied in practice. However, CDT is pleased to see the explicit reference to free expression and consumer protection as factors to guide the Commission’s inquiry in particular cases.
Where we go from here
These are only a few initial observations on a 400-page order that we are all still digesting. Apart from questions on how the rules will apply to specific practices or agreements, the order raises significant questions about those rules that are missing, particularly in the area of privacy. CDT will continue to explore those questions in the coming days and weeks. On first glance, however, the order is a huge achievement for the Commission in establishing clear open Internet protections backstopped by a flexible case-by-case standard.