Pai’s Restoring Internet Freedom Order Will Repeal 2015 Net Neutrality Rules, Impose Transparency Requirements
Federal Communications Commission (“FCC”) Chairman Ajit Pai has circulated a draft order[1] that will roll-back the net neutrality rules adopted in the FCC’s 2015 Open Internet Order.[2] Specifically, the draft “Restoring Internet Freedom Order” will return “broadband Internet access service to its Title I information service classification.” The order repeals the net neutrality prohibitions on blocking, throttling, and paid prioritization, as well as the general conduct standard. In their place, the order imposes the transparency rule adopted by the FCC in the 2010 Open Internet Order,[3] with certain modifications. The FCC is expected to adopt the order at its December 14th open meeting.
Background – 2010 and 2015 Open Internet Orders
In the 2010 Open Internet Order, the FCC adopted three basic net neutrality rules that applied to providers of retail, mass-market broadband Internet access service: (1) a no blocking rule that applied to fixed and mobile broadband providers; (2) a no unreasonable discrimination rule that applied to fixed providers; and (3) transparency requirements for fixed and mobile providers. The anti-blocking and anti-discrimination rules were ultimately struck down in court, but the transparency rule was upheld.[4]
In the 2015 Open Internet Order, the FCC reclassified broadband as a telecommunications service, for both fixed and mobile services, subjecting broadband Internet service providers (“ISPs”) to some of the Communications Act’s Title II regulations. The FCC adopted bright-line rules prohibiting blocking, throttling, and paid prioritization, along with a “general conduct standard” prohibiting unreasonable interference or unreasonable disadvantage to consumers or edge providers. Each prohibition is subject to a reasonable network management exception. The order also enhanced the existing transparency requirements by obligating broadband ISPs to publicly disclose additional details about their services, including for example, information on packet loss and performance characteristics for specific geographic areas. The 2015 order was challenged in court by numerous parties, but was upheld in its entirety[5] and remains in effect today.
Restoring Internet Freedom Order: Transparency Will Keep The Net Neutral
Chairman Pai’s order will repeal the existing FCC net neutrality rules, and replace them with a light-touch, market-based approach that relies on transparency. Broadband ISPs will be required to publicly disclose specific details about their broadband services and how they provide those services. The information is intended to help consumers select an ISP and use broadband services. According to the draft order, the transparency disclosures also will provide businesses, entrepreneurs, and edge service providers with information necessary “to create and maintain” services, content, applications, and devices. Moreover, the information disclosed pursuant to the transparency rule will allow consumers, interest groups, FCC staff, and others to ascertain whether and when ISPs are engaging in problematic and harmful conduct.
The new broadband transparency rule will require all broadband ISPs to disclose accurate information regarding the network management practices, performance, and commercial terms of their services.[6] Below is a summary of the information that ISPs will be required to disclose if and when the new transparency rule becomes effective.
Network Management Practices
Broadband providers will be required to disclose the following information about their network management practices:
· Blocking. Any practice (other than reasonable network management elsewhere disclosed) that blocks or otherwise prevents end user access to lawful content, applications, service, or non-harmful devices, including a description of what is blocked.
· Throttling. Any practice (other than reasonable network management elsewhere disclosed) that degrades or impairs access to lawful Internet traffic on the basis of content, application, service, user, or use of a non-harmful device, including a description of what is throttled.
· Affiliated Prioritization. Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, or resource reservation, to benefit an affiliate, including identification of the affiliate.
· Paid Prioritization. Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, or resource reservation, in exchange for consideration, monetary or otherwise.
· Congestion Management. Descriptions of congestion management practices, if any. These descriptions should include the types of traffic subject to the practices; the purposes served by the practices; the practices’ effects on end users’ experience; criteria used in practices, such as indicators of congestion that trigger a practice, including any usage limits triggering the practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate.
· Application-Specific Behavior. Whether and why the ISP blocks or rate-controls specific protocols or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or favors certain applications or classes of applications.
· Device Attachment Rules. Any restrictions on the types of devices and any approval procedures for devices to connect to the network.
· Security. Any practices used to ensure end-user security or security of the network, including types of triggering conditions that cause a mechanism to be invoked (but excluding information that could reasonably be used to circumvent network security).
Performance Characteristics
Broadband providers will be required to disclose the following information on the performance characteristics of their services:
· Service Description. A general description of the service, including the service technology, expected and actual access speed and latency, and the suitability of the service for real-time applications. (For purposes of satisfying this requirement, fixed ISPs that choose to participate in the Measuring Broadband America (MBA) program may disclose their results as a sufficient representation of the actual performance their customers can expect to experience. Fixed ISPs that do not participate may use the methodology from the MBA program to measure actual performance, or may disclose actual performance based on internal testing, consumer speed test data, or other data regarding network performance, including reliable, relevant data from third-party sources.)
· Impact of Non-Broadband Internet Access Service Data Services. If applicable, what non-broadband Internet access service data services, if any, are offered to end users, and whether and how any non-broadband Internet access service data services may affect the last-mile capacity available for, and the performance of, broadband Internet access service. (The 2010 Open Internet Order referred to “non-broadband Internet access service data services” as “specialized services.”)
Commercial Terms
Broadband providers will be required to disclose the commercial terms of their services:
· Price. For example, monthly prices, usage-based fees, and fees for early termination or additional network services.
· Privacy Policies. A complete and accurate disclosure about the ISP’s privacy practices, if any. For example, whether any network management practices entail inspection of network traffic, and whether traffic is stored, provided to third parties, or used by the ISP for non-network management purposes.
· Redress Options. Practices for resolving complaints and questions from consumers, entrepreneurs, and other small businesses.
Means and Format of Transparency Disclosure
Broadband providers will have two options for publicly disclosing the information required by the FCC’s transparency rule: (1) ISPs may disclose the information on a publicly available, easily accessible website; or (2) ISPs may transmit their disclosures to the FCC, which will make them available on a publicly available, easily accessible website.
To comply with the transparency rule, an ISP may include the required disclosures on a publicly available, easily accessible website. ISPs need not distribute hard copy versions and need not file them with the FCC, which can review the disclosures as needed on the ISPs’ websites. At the point of sale, an ISP may direct a potential subscriber to the website containing its transparency information. Consistent with precedent, the FCC expects ISPs to make disclosures in a manner accessible by people with disabilities. In an effort to provide further guidance to ISPs, the FCC has reaffirmed the means of disclosure requirement from the 2010 Open Internet Order and the clarification found in the FCC’s 2011 Advisory Guidance for complying with the transparency rule.[7]
As for format, the FCC has eliminated the consumer broadband label safe harbor for form and format of disclosures. In other words, there is no mandated format for how the information must be displayed or arranged. Broadband providers will be able to present the information required by the transparency rule as they see fit.
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[1] Restoring Internet Freedom, WC Docket No. 17-108, Declaratory Ruling, Report and Order, and Order, FCC 17-XX (Draft Restoring Internet Freedom Order).
[2] Protecting and Promoting the Open Internet, GN Docket No. 14-28, Report and Order on Remand, Declaratory Ruling, and Order, FCC 15-25 (Mar. 12, 2015), https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-24A1.pdf.
[3] Preserving the Open Internet, GN Docket No. 09-191, Broadband Industry Practices, WC Docket No. 07-52, Report and Order, FCC 10-201 (Dec. 23, 2010), https://apps.fcc.gov/edocs_public/attachmatch/FCC-10-201A1.pdf.
[4] See Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).
[5] United States Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir 2016).
[6] Draft Restoring Internet Freedom Order at ¶ 211.
[7] FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance For Compliance With Open Internet Transparency Rule, GN Docket No. 09-191, WC Docket No. 07-52, Pubic Notice, DA 11-1148, 26 FCC Rcd 9411 (June 30, 2011), https://apps.fcc.gov/edocs_public/attachmatch/DA-11-1148A1.pdf.
