NNSquad - Network Neutrality Squad
[ NNSquad ] CDT Policy Post 16.1: CDT Offers Recommendations For FCC "Open Internet" Rules
----- Forwarded message from Dave Farber <dave@farber.net> ----- Date: Mon, 25 Jan 2010 11:10:56 -0500 From: Dave Farber <dave@farber.net> Subject: [IP] WORTH READING CDT Policy Post 16.1: CDT Offers Recommendations For FCC "Open Internet" Rules Reply-To: dave@farber.net To: ip <ip@v2.listbox.com> Begin forwarded message: > From: Adam Rosenberg <adam@cdt.org> > Date: January 25, 2010 10:52:06 AM EST > To: Policy Posts <policy-posts@cdt.org> > Subject: [Policy Posts]CDT Policy Post 16.1: CDT Offers Recommendations > For FCC "Open Internet" Rules > > A Briefing On Public Policy Issues Affecting Civil Liberties > Online from The Center For Democracy and Technology > > This Policy Post is online: http://www.cdt.org/policy/cdt-offers-recommendations-fcc-open-internet-rules > > CDT Offers Recommendations For FCC "Open Internet" Rules > > 1) CDT Offers Recommendations in FCC's "Open Internet" Proceeding > > 2) Questioning the FCC's Assertions of Jurisdiction over the Internet > > 3) Comments on the Proposed Rules > > 4) The Road Ahead and the Comcast Appeal > > ___________________________________________ > > (1) CDT Offers Recommendations in FCC's "Open Internet" Proceeding > > CDT has filed extensive comments on the Federal Communications > Commission's proposed rules to preserve the open Internet. In this > major proceeding, the FCC is seeking to develop a policy framework to > ensure that the Internet retains the unique structure that enables > independent speakers and innovators to provide online content and > services to any willing Internet user, without getting permission from > any "gatekeeper." CDT supports the Commission's efforts to preserve the > Internet as an open platform, but the Commission's proposed rules, > especially its assertions of authority to regulate the Internet, require > modification to achieve that goal. > > The FCC's proceeding, launched last fall, represents a new phase in the > long-running debate over "Internet neutrality." In general terms, the > issue of Internet neutrality concerns whether operators of Internet > access networks should be free to favor some Internet traffic over > others, or instead should be required to handle traffic in an > essentially neutral manner. In 2005, the FCC issued some basic > principles in a "policy statement," saying that broadband providers > should not block subscribers' ability to access the content, > applications, or services of their choice. In 2008, the agency held > that Comcast had violated these principles by interfering with > subscribers' BitTorrent traffic. But there were still no formal rules. > > In October 2009, the FCC issued a Notice of Proposed Rulemaking (NPRM) > aimed at developing rules. The NPRM proposed to codify the 2005 > principles, plus add new rules requiring broadband Internet access > providers to be transparent and nondiscriminatory in their handling of > Internet traffic. The proposed rules are relatively brief and > high-level; they do not seek to prescribe broadband providers' behavior > in any significant detail and leave the framework's precise contours to > be fleshed out on a case-by-case basis in future adjudications. > > The framework set forth in the NPRM is a good start, but CDT believes a > number of modifications and clarifications are essential. First, the > FCC needs to scale back its assertions of its own authority to regulate > the Internet. Doing so will help its rules survive almost certain > appellate review, and will also serve as a bulwark against future broad > regulation of the Internet. Second, the FCC needs to revise its rules > and provide more guidance in explanatory text on nondiscrimination, > transparency, and the definition of key terms such as "reasonable > network management" and "managed and specialized services." > > CDT comments: http://www.cdt.org/comments/cdt-comments-fcc-net-neutrality > > FCC's NPRM: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A1.pdf > ___________________________________________ > (2) Questioning the FCC's Assertions of Jurisdiction over the Internet > > CDT argues in its comments that the FCC must scale back its assertions > of its "jurisdiction" to act in this area. To effectively preserve the > openness of the Internet, any FCC rules must be narrowly tailored to > prevent both the rise of private gatekeepers and burdensome governmental > regulation. If the FCC asserts broad jurisdiction over the Internet > here, this rulemaking could have the effect of paving the way for > broader future regulation of the Internet generally. Although the > current FCC appears to be respectful of openness and innovation on the > Internet, future FCCs may not be. > > Unfortunately, the NPRM's theory of jurisdiction is sweepingly broad. > The FCC purports to assert authority based on statutes expressing > Internet policy at a very general level a claim that would seem to > imply general agency regulatory authority over the Internet. Most > egregiously, the Commission relies on 47 U.S.C. 230, the cornerstone of > deregulation of Internet services. The entire purpose of Section 230 > was to remove legal and regulatory threats that were inhibiting > development of the Internet. For the FCC to interpret such deregulatory > intent as a grant of regulatory authority is to turn Section 230 > completely on its head. Broad regulatory authority over Internet > matters would raise serious constitutional issues as well. > The FCC's unbounded and shaky assertions of jurisdiction are likely not > to survive appeal. > > CDT's comments suggest a different legal basis for FCC authority to > issue its proposed rules a basis that is appropriately narrow. > Specifically, CDT recommends that the FCC base its actions here on its > authority under Title I of the Communications Act to regulate > transmissions by wire or radio. In setting forth this jurisdictional > basis, the Commission should expressly state that it understands this > authority to extend only to the provision of transmission functions > broadband Internet access service and not to Internet matters > generally. This basis for jurisdiction finds support in prior cases and > was expressly cited by the Supreme Court in its Brand X decision > upholding the FCC's decision to remove broadband Internet access > services from Title II common carriage regulation: "the Commission > remains free to impose special regulatory duties on facilities-based > ISPs under its Title I ancillary jurisdiction." As a possible > alternative, the FCC could consider returning broadband Internet access > service to be regulated as a telecommunications service under Title II > of the Communications Act, while forbearing from rate regulation and > other unneeded aspects of the Title II regime. > ___________________________________________ > (3) Comments on the Proposed Rules > > CDT's comments offer a number of specific recommendations for modifying > the proposed rules and providing further agency guidance on how those > rules will be interpreted. > > The NPRM describes the non-discrimination rule as barring carriers from > charging providers of online content, applications, or services for > enhanced delivery to subscribers. But the FCC should make clear that > the rule would also cover discrimination that is not motivated by direct > payment and discrimination that takes the form of targeting selected > traffic for degraded treatment. Perhaps most importantly, the FCC > should clarify that the nondiscrimination rule would still allow > beneficial activities that occur at the outer boundary or edge of a > broadband provider's network, such as caching or interconnection. Such > tactics provide improved access to subscribers but do not cause any > traffic to "cut in line" and degrade delivery of other traffic. To > avoid affecting such activities, the nondiscrimination rule should focus > exclusively on discrimination in the routing of communications across > the broadband provider's network. > > CDT's comments also recommend that the Commission declare at the outset > that two other types of practices will not be considered > discriminatory. First, providers should be free to devise subscription > plans and congestion management strategies that focus on such factors as > speed or usage volume. So long as a provider's actions turn on how much > or when individual subscriber's use the Internet access service, and not > what they are using it for, the actions are not discriminatory. Second, > as CDT has long argued, there should be no problem with providers' > enabling individual subscribers to designate how their different inbound > or outbound traffic streams should be prioritized. Putting the choices > in the hands of subscribers eliminates the risk of network operators > playing favorites. > > The proposed rules, like the 2005 principles, say that "reasonable > network management" will be permitted. This is an important part of > the overall framework; without it, the rules could interfere with the > efforts of broadband providers to ensure the smooth and secure > operation of their networks. > > The transparency rule, however, should not be subject to a "reasonable > network management" exception. The FCC should make clear that network > management practices should be disclosed, since they could noticeably > affect individual user's traffic or the performance of particular > applications. Indeed, disclosure of network management practices, > including reasonable ones, is precisely what a transparency rule is for. > The FCC, in its final order, should provide more guidance about what > such disclosures should include. In particular, the agency should make > clear that disclosures regarding congestion management tactics can and > should include significantly more detail than management tactics aimed > at security, where exposing too much detail could invite circumvention. > > The FCC also should articulate some high-level guiding principles > concerning what kinds of practices are likely to be considered > reasonable and what kinds are not. An appropriate set of high-level > principles would say that reasonable network management practices > should be based on general criteria that are applied fairly and evenly, > so that the network provider is not selecting which specific content or > applications to favor or disfavor. For congestion management in > particular, providers should use objective criteria such as volume of > bandwidth usage. A key test for reasonableness would be: does this > tactic have equal impact on all applications with comparable bandwidth > characteristics? Another key principle would be that reasonable tactics > should be consistent with the common technical standards on which the > Internet's broad interoperability depends. > > In addition, the NPRM's definition of "reasonable network management" > includes actions aimed at preventing unlawful conduct. The definition's > references to preventing unlawful conduct should be deleted. Their > inclusion is unnecessary, because the proposed rules apply only to > "lawful" transmissions in the first place. Meanwhile, encouraging > broadband Internet access providers to take on new network policing > functions would entangle the FCC in difficult legal and policy issues. > It also would run contrary to the goals of this proceeding, which focus > on preserving the Internet's successful model a model in which network > operators do not exercise centralized supervision or control. > > Finally, the NPRM suggests that there should be a category of "managed > or specialized services" that broadband providers may offer without > regard to the open Internet rules. The NPRM seeks comment on the > concept of "managed or specialized services" but does not offer a > definition of the term. > > CDT agrees that services that are not broadband Internet access should > not be subject to the openness rules. Not defining the term "managed or > specialized services," however, carries major risk that the term could > be misinterpreted in ways that create gaping loopholes in the open > Internet rules. To prevent this, the FCC should provide a definition > aimed at ensuring that "managed or specialized services" will not be > merely Internet services by another name (minus the openness). > Specifically, a definition should make clear that a service will not > qualify as a "managed or specialized service" if it is a functional > substitute for Internet access service or if it lacks an allocation of > bandwidth distinct from Internet traffic. As an additional safeguard, > the FCC should require periodic reporting of how providers' bandwidth > allocations for Internet access compare to their allocations for managed > or specialized services, and make clear that the agency will be on the > lookout for any signs that a provider's Internet access is being > neglected in favor of managed or specialized services. > > CDT's comments contain specific recommendations for how the text of the > proposed rules may be modified to address the concerns CDT raises. > ___________________________________________ > > (4) The Road Ahead and the Comcast Appeal > > The FCC received more than 1,000 long-form comments on the proposed > rules, as well as more than 120,000 shorter comments. The next step in > the FCC's rulemaking process is for parties to submit reply comments, > which are due in early March. There is no specific timetable for final > FCC action. > > Meanwhile, the federal Court of Appeals for the D.C. Circuit is > considering a legal challenge brought by Comcast, which argues that the > FCC lacked authority to issue its 2008 ruling on the Comcast-BitTorrent > affair. The case centers on many of the same jurisdictional questions > outlined above, and may well be ruled on in the next few months. The > recent oral argument in the case suggests that the court is highly > skeptical of the FCC's position. > > A ruling against the FCC could force the agency to reframe its > assertion of legal authority in the openness rulemaking, or could cast > doubt on the agency's authority to issue rules in this area at all. > Depending on the rationale, a decision could lead to an effort by the > FCC to reclassify broadband Internet access services as > "common-carrier" services subject to Title II of the Communications > Act, or an effort in Congress to grant the agency new authority. > > In any event, the FCC's proposed rules have put the issue of Internet > neutrality back on the front burner, and it is likely to remain a > central issue in telecommunications policy for some time to come. CDT > plans to review the detailed comments submitted to the FCC, refine our > analysis, and work with the FCC and other interested parties toward the > vital goal of keeping the Internet open to all speakers and innovators. > ___________________________________________ > > > Detailed information about online civil liberties issues may be found at > http://www.cdt.org/. > This document may be redistributed freely in full or linked to http://www.cdt.org/policy/cdt-offers-recommendations-fcc-open-internet-rules > > Excerpts may be re-posted with prior permission of brock@cdt.org > Policy Post 16.1 Copyright 2010 Center for Democracy & Technology > > > Adam Rosenberg > New Media Manager > Center for Democracy & Technology > 1634 Eye Street, NW > Suite 1100 > Washington, DC 20006 > Office: 202.637.9800 x231 > Cell: 202.253.3091 > Website: www.cdt.org > Follow us on Twitter at @CenDemTech! > ------------------------------------------- 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 -----