FCC Adopts Strong, Sustainable Rules To Protect The Open Internet

Ending lingering uncertainty about the future of the Open Internet, the Federal Communications Commission set sustainable rules of the roads that will protect free expression and innovation on the Internet and promote investment in the nation’s broadband networks. The Commission enacts strong, sustainable rules, grounded in multiple sources of legal authority, to ensure that Americans reap the economic, social, and civic benefits of an Open Internet today and into the future. These new rules are guided by three principles: America’s broadband networks must be fast, fair and open -- principles shared by the overwhelming majority of the nearly 4 million commenters who participated in the FCC’s Open Internet proceeding. The Order protects consumers no matter how they access the Internet, whether on a desktop computer or a mobile device. The first three rules ban practices that are known to harm the Open Internet:

  1. No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
  2. No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
  3. No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind -- in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.

A Standard for Future Conduct: Because the Internet is always growing and changing, there must be a known standard by which to address any concerns that arise with new practices. The Order establishes that ISPs cannot “unreasonably interfere with or unreasonably disadvantage” the ability of consumers to select, access, and use the lawful content, applications, services, or devices of their choosing; or of edge providers to make lawful content, applications, services, or devices available to consumers. This Order ensures that the FCC will have authority to address questionable practices on a case-by-case basis, and provides guidance in the form of factors on how the FCC will apply the standard in practice.
Greater Transparency: The rules described above will restore the tools necessary to address specific conduct by broadband providers that might harm the Open Internet. But the Order recognizes the critical role of transparency in a well-functioning broadband ecosystem. In addition to the existing transparency rule, which was not struck down by the court, the Order requires that broadband providers disclose, in a consistent format, promotional rates, fees and surcharges and data caps. Disclosures must also include packet loss as a measure of network performance, and provide notice of network management practices that can affect service. To further consider the concerns of small ISPs, the Order adopts a temporary exemption from the transparency enhancements for fixed and mobile providers with 100,000 or fewer subscribers, and delegates authority to our Consumer and Governmental Affairs Bureau to determine whether to retain the exception and, if so, at what level. The Order also creates for all providers a “safe harbor” process for the format and nature of the required
disclosure to consumers, which the Commission believes will lead to more effective presentation of consumer-focused information by broadband providers.
Reasonable Network Management: For the purposes of the rules, other than paid prioritization, an ISP may engage in reasonable network management. This recognizes the need of broadband providers to manage the technical and engineering aspects of their networks.
In assessing reasonable network management, the Commission’s standard takes account of the particular engineering attributes of the technology involved -- whether it be fiber, DSL, cable, unlicensed Wi-Fi, mobile, or another network medium.
However, the network practice must be primarily used for and tailored to achieving a legitimate network management -- and not business -- purpose.

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