This article originally appeared in the Feb. 2011 issue of INTERNET TELEPHONY Magazine.

On Dec. 21, 2010, the FCC (News - Alert) voted to approve rules aimed at “preserving the open Internet” (i.e., network neutrality rules). As expected, the FCC voted to impose transparency, non-discrimination and a no-blocking rule on broadband providers. The rules require wireline broadband service providers to treat lawful content in a “nondiscriminatory” manner. Likewise, service providers will be prohibited from blocking legal content, applications, services, and non-harmful devices. Broadband service providers also will be required to disclose their network management, performance characteristics, and commercial terms of their offerings. All of the new rules are subject to an exception for “reasonable network management.”

The rules also do not specifically ban the practice of paid prioritization, but the FCC has stated that the practice is not likely to be considered “reasonable.”  The FCC will consider that practice, and others, on a case-by-case basis, with the burden on the service provider to prove that the practice is “reasonable.” The rules will not strictly prohibit tiered pricing for consumer broadband access, but the FCC intends to monitor the practice.  

While not treated identically to wireline services, wireless broadband services will be subject to several open Internet rules as well, including a requirement to disclose network management practices, including device and application certification procedures and the criteria for placing restrictions on services or applications. The rules also prohibit the blocking of websites as well as access to applications that compete with the broadband provider’s voice or video services.  

A number of members of Congress have announced their opposition to the new rules, and it is expected that this debate will continue into 2011 and beyond.

William B. Wilhelm (News - Alert) is a partner and Jeffrey R. Strenkowski is counsel at the global law firm of Bingham McCutchen LLP.