After years of proceedings and millions of comment submissions, the FCC (News - Alert) released the text of its network neutrality order in mid-March. As widely expected, the order established bright-line open Internet rules covering broadband Internet access providers, both fixed and mobile. The rules prohibit the blocking or throttling of lawful content, applications and services, and prevent paid prioritization arrangements whereby providers manage their network to directly or indirectly favor some traffic over other traffic either in exchange for consideration or to benefit an affiliate. They also create enhanced transparency requirements for providers’ commercial terms, performance characteristics, and network practices.
The rules do not apply to non-broadband Internet access service data services (formerly known as “specialized services”) or services that share capacity with broadband Internet access service over providers’ last-mile facilities but do not provide access to all Internet endpoints, such as facilities-based VoIP and IP-video offerings, energy consumption sensors, and automobile telematics. It also provides an exemption for certain “reasonable network management” practices, although that exemption does not apply to the ban on paid prioritization.
Of particular note, the FCC will impose statutory privacy protections on all covered services. The FCC intends to issue advisory opinions to provide legal certainty on issues raised. It will also allow parties to file informal or formal complaints against violations of the rules under the same procedures adopted in the 2010 Open Internet Order.
The order already has been challenged in court. Those challenges are likely to take months or years to go through the appeals process. Parties will also likely seek a stay of the rules before they take effect, and may also seek reconsideration before the agency on some of the details buried in the order. As such, this issue will continue to evolve for years to come.
William B. Wilhelm (News - Alert) is a partner and Jeffrey R. Strenkowski is counsel at the global law firm of Morgan Lewis & Bockius LLP (www.morganlewis.com).
Edited by Dominick Sorrentino