Jan 26, 2011

Net Neutrality: What’s Actually in the FCC Report?

[caption id="attachment_393" align="alignright" width="300" caption="What's actually in the FCC report?"]

[/caption] The Federal Communications Commission’s adoption of “net neutrality” rules in December 2010 sent America’s windbags bloviating on the airwaves about a government takeover of the internet. Somebody please open a window—all of the hot air has obscured the facts! Before we argue about the FCC rules, let’s actually read them. The Federal Communications Commission adopted the rules 3-2 on Dec. 21, 2010, and released its report and order on Dec. 23. According to the press release, “Chairman [Julius] Genachowski voted for the order; Commissioner [Michael J.] Copps concurred and Commissioner [Mignon] Clyburn approved in part and concurred in part. Commissioners [Robert M.] McDowell and [Meredith Attwell] Baker dissented.” The 194-page report and order outlines the FCC’s “three basic rules” that attempt to preserve a “free and open internet,” also known as “net neutrality”—the idea that all providers of legal content, from big-money corporations to grannies with websites, have equal access to internet bandwidth. The PBS program, “Moyers on America: The Net @ Risk” offers a thorough explanation of net neutrality, as well as a “Citizens Class.” According to the FCC report, the rules target broadband—not dialup—internet service providers. The rules do not target content providers, the people who create websites. Some, but not all, of the rules also target mobile broadband providers. What are the ‘three basic rules’? According to the report, the FCC rules “embody four core principles: transparency, no blocking, no unreasonable discrimination, and reasonable network management.” The three basic rules, pulled directly from the report, are: 1. Transparency. “Fixed and mobile broadband providers must disclose the network management practices, performance characteristics, and terms and conditions of their broadband services.” 2. No blocking. “Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services.” 3. No unreasonable discrimination. “Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.” The FCC rules also allow internet service providers to “reasonably manage their networks.” “Network management practices are reasonable if they are appropriate and tailored to achieving a legitimate network management purpose,” according to the report. “Transparency and end-user control are touchstones of reasonableness.” Whom do the rules target? The rules target the broadband internet service providers—the companies that own the cables that carry the content. These are the companies you pay when you sign up for internet access. Here’s what’s in the report: “We find that open internet rules should apply to ‘broadband internet access service,’ which we define as: “A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dialup internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this part.” The FCC also targeted mobile broadband providers, though the rules are less stringent. The FCC rules require mobile broadband providers to comply “with the transparency rule and a basic no-blocking rule,” according to the report. Who is not addressed by the rules? As mentioned above, the rules do not target dialup service providers. Nor do the rules apply to the people who create content on the internet—defined by the FCC as “edge providers.” Here is what’s in the report: “For a number of reasons, these rules apply only to the provision of broadband internet access service and not to edge provider activities, such as the provision of content or applications over the internet.” According to the report, the rules do not apply to dialup services because “telephone service has historically provided the easy ability to switch among competing dialup internet access services. Moreover, the underlying dialup internet access service is subject to protections under Title II of the Communications Act.” One of the FCC’s justifications for targeting broadband service providers is that “broadband providers control access to the internet for their subscribers and for anyone wishing to reach those subscribers. They are therefore capable of blocking, degrading, or favoring any internet traffic that flows to or from a particular subscriber.” In addition, the FCC rules do not apply “directly to coffee shops, bookstores, airlines, and other entities when they acquire internet service from a broadband provider to enable their patrons to access the internet from their establishments.” The FCC refers to such entities as “premise operators.” Why did members of the FCC deem these rules necessary? FCC members who supported the ruling saw it necessary to establish “rules of the road” for internet access for a variety of reasons. “The Commission has long recognized that certain basic standards for broadband provider conduct are necessary to ensure the internet’s continued openness,” according to the report. Additionally, “the openness of the internet cannot be taken for granted, and … it faces real threats,” according to the report. “Indeed, we have seen broadband providers endanger the internet’s openness by blocking or degrading content and applications without disclosing their practices to end users and edge providers, notwithstanding the Commission’s adoption of open internet principles in 2005.” The FCC also cited the internet’s importance as a “platform for speech and civic engagement,” and said that it considers the internet to be a “general purpose technology,” “like electricity and the computer.” Does the FCC have the authority to create these rules? It depends on whom you ask. “Broadband internet access services are clearly within the Commission’s subject matter jurisdiction and historically have been supervised by the Commission,” according to the report. “Furthermore … our adoption of basic rules of the road for broadband providers implements specific statutory mandates in the Communications Act and the Telecommunications Act of 1996." Other parts of the FCC report claim its authority to enforce the rules as well, but not everyone agrees. Not even every commissioner. For example, Commissioner Baker wrote in her dissenting statement, “Congress has never given the Commission authority to regulate internet network management, a fact validated by the court in Comcast. Lacking any statutory authority to act in this area, the Commission’s effort to establish net neutrality rules should have been a nonstarter.” Commissioner Baker is referring to the FCC’s recent case against Comcast. In April 2010, the FCC took its legal lumps when Comcast received an appeals court ruling in its favor. Whether the FCC has the authority to adopt or enforce the rules is certain to be a point of contention. The rules are expected to take effect sometime in the first quarter of 2011, after a review by the Office of Management and Budget. Consumers who want to file complaints in accordance with the rules can do so on the consumers page of the FCC website. As of press time, the FCC Consumer and Governmental Affairs Bureau had not updated its internet page to reflect the latest ruling. “The FCC does not regulate the Internet or Internet Service Providers (ISPs),” the page reads. “You may contact your state consumer protection office or if there is possible fraud involved, you may contact the Federal Trade Commission.” For more information, visit http://www.fcc.gov/ or http://www.openinternet.gov/.