What Have We Learned, Really?

By Paula Bernier, Executive Editor, TMC  |  January 01, 2011

This article originally appeared in the Jan. 2011 issue of NGN Magazine.

It’s official. FCC Chairman Julius Genachowski (News - Alert) in December moved forward the Obama administration’s agenda to address net neutrality.

Three of the five commissioners voted for the initiative, which is an effort to retain the openness of the Internet. The net neutrality rules “require all broadband providers to publicly disclose network management practices, restrict broadband providers from blocking Internet content and applications, and bar fixed broadband providers from engaging in unreasonable discrimination in transmitting lawful network traffic.”

The FCC (News - Alert) justified the move, at least in part, by noting that broadband providers have financial interests in services that may compete with online content and services, and, thus, have in some cases taken actions that endanger that openness by blocking and degrading certain content and applications. What’s more, the commission added, is they did so without disclosing those practices to consumers.

Below are some key parts of the ruling. But before we get to those, I wanted to delineate some of the more interesting aspects of the decision.

One is that the FCC is this move seems to have moved away from the idea that it’s ok for some services to receive special priority, saying for a broadband provider and a third party to give some traffic priority would “raise significant concern.”

It went on to say: “First, pay for priority would represent a significant departure from historical and current practice…. Second this departure from longstanding norms could cause great harm to innovation and investment in and on the Internet…. Third, pay-for-priority arrangements may particularly harm non-commercial end users, including individual bloggers, libraries, schools, advocacy organizations, and other speakers, especially those who communicate through video or other content sensitive to network congestion….  Fourth, broadband providers that sought to offer pay-for-priority services would have an incentive to limit the quality of service provided to non-prioritized traffic.  In light of each of these concerns, as a general matter, it is unlikely that pay for priority would satisfy the ‘no unreasonable discrimination’ standard.…”

Here are some other key excerpts:

Rule 1: Transparency

A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.

Rule 2: No Blocking

A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.

A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network

Rule 3: No Unreasonable Discrimination

A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service.  Reasonable network management shall not constitute unreasonable discrimination.

The FCC defines reasonable network management as a network management practice that “is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service. Legitimate network management purposes include: ensuring network security and integrity, including by addressing traffic that is harmful to the network; addressing traffic that is unwanted by users (including by premise operators), such as by providing services or capabilities consistent with a user’s choices regarding parental controls or security capabilities; and by reducing or mitigating the effects of congestion on the network.”

Edited by Stefania Viscusi