NNSquad - Network Neutrality Squad
[ NNSquad ] A Fair and Balanced Report on the FCC's NPRM on Preserving the Open Internet
I would personally avoid using the term "Fair and Balanced" in this context to avoid confusion with FOX "News" ... --Lauren-- NNSquad Moderator ----- Forwarded message from Dave Farber <dave@farber.net> ----- Date: Fri, 23 Oct 2009 16:30:49 -0400 From: Dave Farber <dave@farber.net> Subject: [IP] A Fair and Balanced Report on the FCC's NPRM on Preserving the Open Internet Reply-To: dave@farber.net To: ip <ip@v2.listbox.com> Begin forwarded message: > From: Rob Frieden <rmf5@psu.edu> > Date: October 23, 2009 15:28:58 EDT > To: dave@farber.net > Cc: ip <ip@v2.listbox.com> > Subject: A Fair and Balanced Report on the FCC's NPRM on Preserving the > Open Internet > > Hello Dave: > > I have a short, unbiased summary of the FCC's NPRM that might > offer some balance to Scott Cleland's spin. See > http://telefrieden.blogspot.com/ and set out below > > FCC NPRM on Preserving the Open Internet > > Consistent with President Obama’s campaign promise to su > pport network neutrality, the FCC has issued a broad sweeping Notice of > Proposed Rulemaking proposing to codify the four Internet principles > adopted by the Commission in 2005[1] along with two additional > principles requiring nondiscrimination and transparency. [2] With the > two Republican Commissioners dissenting in part and concurring in > part,[3] the FCC has only started the controversial process for ass > essing what enforceable rules it should establish for regulating Int > ernet Service Providers (“ISPs”), and possibly applications and content > providers in certain instances, [4]independent of additional statutory > authority. Because the FCC currently only had articulated a Policy > Statement on the topic and because the scope of its jurisdiction > conferred by statute remains uncertain, the FCC seeks to establish > “rules to preserve an open Internet—the next step in an ongoing and > longstanding effort at the Commission.” [5] > The FCC offers “draft rules, including a codification of > the existing Internet policy principles, additional principles of > nondiscrimination and transparency, [and] an acknowledgement that these > principles apply to all forms of broadband Internet access . . .. [6] > The Commission also proposes to exclude ‘managed’ or ‘specialized’ > services” from network neutrality rules in light of the fact that that > services such as IP-enabled ‘cable television, VoIP telephony, and > specialized telemedicine [7] may not fit within the Commission’s > definition of broadband Internet access [8] in light of the nature of > these services and user requirements, i.e., the need for such “mission > critical” bits to arrive without delay, possibly triggering prioritized > processing which might otherwise constitute a violation of the > Commission’s proposed nondiscrimination requirement. > The FCC proposes the following language as establishing the > foundation for Internet neutrality with an emphasis on the wireline or > wireless [9] link providing end users with access to the Internet [10]: > 1. Subject to reasonable network management, a provider of broadband > Internet access service may not prevent any of its users from sending or > receiving the lawful content of the user’s choice over the Internet. > > 2. Subject to reasonable network management, a provider of broadband > Internet access service may not prevent any of its users from running > the lawful applications or using the lawful services of the user’s > choice. > > 3. Subject to reasonable network management, a provider of broadband > Internet access service may not prevent any of its users from connecting > to and using on its network the user’s choice of lawful devices that do > not harm the network. > > 4. Subject to reasonable network management, a provider of broadband > Internet access service may not deprive any of its users of the user’s > entitlement to competition among network providers, application > providers, service providers, and content providers. [11] > > 5. Subject to reasonable network management, a provider of broadband > Internet access service must treat lawful content, applications, and > services in a nondiscriminatory manner. [12] > > 6. Subject to reasonable network management, a provider of broadband > Internet access service must disclose such information concerning > network management and other practices as is reasonably required for > users and content, application, and service providers to enjoy the > protections specified in this part.[13] > > In addition to the exemption for managed and specialized services, the > Commission proposes to exempt ISPs from having to comply with the six > principles when reasonable network management, [14] law enforcement, > [15] and public safety and homeland/national security factors [16] > warrant. > > The FCC concludes that it has jurisdiction to establish enforceable > rules on Internet access notwithstanding the fact that ISPs provide > information services explicitly exempt from common carrier regulation > established in Title II of the Communications Act. [17] The Commission > bases it lawful authority to regulate ISPs on the basis of “ancillary > jurisdiction” conferred by Title I of the Communications Act [18]as well > as Sections 201(b), 230(b) and 706(a) of the Communications Act.[19] > The Commission expects to adjudicate violations on a case-by-case basis > and solicits comments on what procedural rules to adopt that could lead > to citations and financial penalties for noncompliance. > > > > > > > > [1] Appropriate Framework for Broadband Access to the > Internet over Wireline Facilities, Policy Statement, 20 F.C.C.R. 14986 > (2005) (2005). > > > > [2] Preserving the Open Internet, Notice of Proposed > Rulemaking, GN Docket No. 09-191, FCC 09-93 (rel. Oct. 22, 2009); > available at: > http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A1.doc. > > > [3] Commissioner McDowell stated that “I do not share the > majority’s view that the Internet is showing breaks and cracks, nor do I > believe that the government is the best tool to fix it. I also disagree > with the premise that the Commission has the legal authority to regulate > Internet network management as proposed.” Statement of Commissioner > Robert M. McDowell Concurring in Part, Dissenting in Part, Id. at 96 > (questioning the scope of the FCC’s Title I “ancillary jurisdiction” and > whether Sections 230 and 706 of the Communications Act, as amended, > provide “the ancillary hook.” > > > [4] “Although the question of Internet openness at the > Commission has traditionally focused on providers of broadband Internet > access service, we seek comment on the pros and cons of phrasing one or > more of the Internet openness principles as obligations of other > entities, in addition to providers of broadband Internet access > service.” Id. at ¶101. > > > > [5] Id. at ¶2. > > [6] Id. at ¶11. The Commission identified a number of > prior proceedings that it implies support the inference that the ru > lemaking constitutes a logical and lawful extension of previous work: > “As this history illustrates, the Commission is not writing on a blank > slate in this proceeding. Rather, we are proposing a next step—seeking > public input on draft rules—that is based on a substantial record, which > includes discussion of nondiscrimination, transparency, and application > of Internet openness principles to wireless broadband Internet access > service providers.” Id. at ¶46. > > > > [7] See Id. at ¶108. > > > > [8] The Commission proposes to define Broadband Internet > access as “Internet Protocol data transmission between an end user and > the Internet. For purposes of this definition, dial-up access requiring > an end user to initiate a call across the public switched telephone > network to establish a connection shall not constitute broadband > Internet access.” Id. at p. 65, Appendix A, Draft Proposed Rules for > Public Input, Part 8 of Title 47 of the Code of Federal Regulations, > §8.3 Definitions. > > > > [9] “As our choices for accessing the Internet continue to > increase, and as users connect to the Internet through different > technologies, the principles we propose today seek to safeguard its > openness for all users. We affirm that the six principles that we > propose to codify today would apply to all platforms for broadband > Internet access.” Id. at ¶154. > > > > [10] “The rules we propose today address users’ ability to > access the Internet and are not intended to regulate the Internet itself > or create a different Internet experience from the one that users have > come to expect. Instead, our proposals attempt to build on existing > policies (discussed below) that have contributed to the Internet’s > openness without imposing conditions that might diminish innovation or > network investment. We seek to create a balanced framework that gives > consumers and providers of Internet access, content, services, and > applications the predictability and clarity they need going forward > while retaining our ability to respond flexibly to new challenges.” Id. > at ¶14. > > > > [11] Rules one through four are set out at Id. ¶92. > > > > [12] Id. at ¶104. > > > > [13] Id. at ¶119. > > > > [14] The FCC proposes to define reasonable network > management as: “(a) reasonable practices employed by a provider of b > roadband Internet access service to (i) reduce or mitigate the effects > of congestion on its network or to address quality-of-service concerns; > (ii) address traffic that is unwanted by users or harmful; (iii) prevent > the transfer of unlawful content; or (iv) prevent the unlawful transfer > of content; and (b) other reasonable network management practices.” Id. > at ¶135, Appendix A. > > > > [15] “Nothing in this part supersedes any obligation a p > rovider of broadband Internet access service may have—or limits its > ability—to address the needs of law enforcement, consistent with app > licable law.” Id. at ¶143, Appendix A. > > > > [16] “Nothing in this part supersedes any obligation a p > rovider of broadband Internet access service may have—or limits its > ability—to deliver emergency communications, or to address the needs of > public safety or national or homeland security authorities, consistent > with applicable law.” Id. at ¶146, Appendix A. > > > > [17] “Beginning in 2002, the Commission has classified c > able modem service, wireline broadband Internet access service, wi > reless-enabled broadband Internet access service, and broadband-ove > r-powerline-enabled Internet access service as information services, > removing them from potential regulation under Title II of the Comm > unications Act.” Id. at ¶29 (citations omitted). > > > > [18] “We have ancillary jurisdiction over matters not di > rectly addressed in the Act when the subject matter falls within the > agency’s general statutory grant of jurisdiction and the regulation is > “reasonably ancillary to the effective performance of the Commission’s > various responsibilities.” That test is met with respect to broadband > Internet access service.” > > citing United States v. Southwestern Cable Co., 392 U.S. 157, 172–73 > (1968); United States v. Midwest Video Corp., 406 U.S. 649, 662 (1972); > Comcast Network Management Practices Order, 23 FCC Rcd at 13033–44, > paras. 12–28; and the Commission’s Brief in Comcast v. FCC, No. 08-1291, > at 25–50 (filed Sept. 21, 2009), available at > http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-293573A1.pdf. > > [19] Section 201(b) authorizes the FCC “to prescribe such r > ules and regulations as may be necessary in the public interest to c > arry out the provision of th[e] Act.” 47 U.S.C. §201(b); Section > 230(b)(1) states that “It is the policy of the United States-- (1) to > promote the continued development of the Internet and other interactive > computer services and other interactive media;” 47 U.S.C. §230(b)(1); > 706(a) states that the Commission “shall encourage the deployment on a > reasonable and timely basis of advanced telecommunications capability to > all Americans.” 47 U.S.C. §706(a). > > >> > > -- > Pioneers Chair and Professor of Telecommunications and Law > Penn State University > 102 Carnegie Building, University Park, PA 16802 > office: (814) 863-7996; fax (814) 863-8161 > Web Page: http://www.personal.psu.edu/faculty/r/m/rmf5/ > Faculty profile: http://comm.psu.edu/people/rmf5 > SSRN Papers Site: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=102928 > Blog Site: http://telefrieden.blogspot.com/. > ------------------------------------------- Archives: https://www.listbox.com/member/archive/247/=now RSS Feed: https://www.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com ----- End forwarded message -----