FCC Fact Sheet for Chairman's New Rules for Protecting the Open Internet

The Federal Communications Commission released a Fact Sheet for FCC Chairman Tom Wheeler's proposed rules to preserve and protect the open Internet.

The order will include the following bright line rules:

• No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
• No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
• No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration -- 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 determine whether new practices are appropriate or not. Thus, the proposal would create a general Open Internet conduct standard that ISPs cannot harm consumers or edge providers.
• Greater Transparency: The rules described above would restore the tools necessary to address specific conduct by broadband providers that might harm the Open Internet. But the Chairman’s proposal also recognizes the critical role of transparency in a well-functioning broadband ecosystem. The proposal enhances existing transparency rules, which were not struck down by the court.
• 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.

The Chairman’s proposal provides the strongest legal foundation for the Open Internet rules by relying on multiple sources of authority: Title II of the Communications Act and Section 706 of the Telecommunications Act of 1996. In doing so, the proposal provides the broad legal certainty required for rules guaranteeing an open Internet, while refraining (or “forbearing”) from enforcing provisions of Title II that are not relevant to modern broadband service. Together Title II and Section 706 support clear rules of the road, providing the certainty needed for innovators and investors, and the competitive choices and freedom demanded by consumers.

Interconnection: New Authority to Address Complaints About ISPs’ Practices For the first time the Commission would have authority to hear complaints and take appropriate enforcement action if necessary, if it determines the interconnection activities of ISPs are not just and reasonable, thus allowing it to address issues that may arise in the exchange of traffic between mass-market broadband providers and edge providers.

Forbearance
Congress requires the FCC to refrain from enforcing – forbear from – provisions of the Communications Act that are not in the public interest. The proposed Order applies some key provisions of Title II, and forbears from most others. There is no need for any further proceedings before the forbearance is adopted. The proposed Order would apply fewer sections of Title II than have applied to mobile voice networks for over twenty years.

Major Provisions of Title II that the Order WILL APPLY:

• The proposed Order applies “core” provisions of Title II: Sections 201 and 202 (e.g., no “unjust and unreasonable practices”
• Allows investigation of consumer complaints under section 208 and related enforcement provisions, specifically sections 206, 207, 209, 216 and 217
• Protects consumer privacy under Section 222
• Ensures fair access to poles and conduits under Section 224, which would boost the deployment of new broadband networks
• Protects people with disabilities under Sections 225 and 255
• Bolsters universal service fund support for broadband service in the future through partial application of Section 254.

Major Provisions Subject to Forbearance:

• Rate regulation: the Order makes clear that broadband providers shall not be subject to tariffs or other form of rate approval, unbundling, or other forms of utility regulation
• Universal Service Contributions: the Order DOES NOT require broadband providers to contribute to the Universal Service Fund under Section 254
• The Order will not impose, suggest or authorize any new taxes or fees – there will be no automatic Universal Service fees applied and the congressional moratorium on Internet taxation applies to broadband.

The proposed order does not include utility-style rate regulation:

• No rate regulation or tariffs
• No last-mile unbundling
• No burdensome administrative filing requirements or accounting standards.