IN CASE YOU MISSED IT: FCC Adopts Strong, Sustainable Rules to Protect the Open Internet | Federal Communications Commission

 IN CASE YOU MISSED IT: FCC Adopts Strong,
Sustainable Rules to Protect the Open Internet
| Federal Communications Commission

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Wheeler Statement
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O’Rielly Statement

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Released: February 26, 2015

NEWS

Federal Communications Commission

News Media Information 202 / 418-0500

445 12th Street, S.W.

Internet: http://www.fcc.gov

Washington, D. C. 20554

TTY: 1-888-835-5322

This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action.

See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).

FOR IMMEDIATE RELEASE:

NEWS MEDIA CONTACT:

February 26, 2015

Mark Wigfield, 202-418-0253

E-mail: mark.wigfield@fcc.gov

FCC ADOPTS STRONG, SUSTAINABLE RULES TO PROTECT THE OPEN INTERNET

Rules Will Preserve the Internet as a Platform for Innovation, Free Expression and Economic Growth

Washington, D.C. – Ending lingering uncertainty about the future of the Open Internet, the Federal

Communications Commission today 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 FCC has long been committed to protecting and promoting an Internet that nurtures freedom of

speech and expression, supports innovation and commerce, and incentivizes expansion and investment by

America’s broadband providers. But the agency’s attempts to implement enforceable, sustainable rules to

protect the Open Internet have been twice struck down by the courts.

Today, the Commission—once and for all—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.

Absent action by the FCC, Internet openness is at risk, as recognized by the very court that struck down

the FCC’s 2010 Open Internet rules last year in Verizon v. FCC.

Broadband providers have economic incentives that “represent a threat to Internet openness and could act

in ways that would ultimately inhibit the speed and extent of future broadband deployment,” as affirmed

by the U.S. Court of Appeals for the District of Columbia. The court upheld the Commission’s finding

that Internet openness drives a “virtuous cycle” in which innovations at the edges of the network enhance

consumer demand, leading to expanded investments in broadband infrastructure that, in turn, spark new

innovations at the edge.

However, the court observed that nearly 15 years ago, the Commission constrained its ability to protect

against threats to the open Internet by a regulatory classification of broadband that precluded use of

statutory protections that historically ensured the openness of telephone networks. The Order finds that

the nature of broadband Internet access service has not only changed since that initial classification

decision, but that broadband providers have even more incentives to interfere with Internet openness

today. To respond to this changed landscape, the new Open Internet Order restores the FCC’s legal

authority to fully address threats to openness on today’s networks by following a template for

sustainability laid out in the D.C. Circuit Opinion itself, including reclassification of broadband Internet

access as a telecommunications service under Title II of the Communications Act.

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Attachments & Related Documents

Wheeler Statement
Clyburn Statement
Rosenworcel Statement
Pai Statement
O’Rielly Statement

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Text Document

Released: February 26, 2015

With a firm legal foundation established, the Order sets three “bright-line” rules of the road for behavior

known to harm the Open Internet, adopts an additional, flexible standard to future-proof Internet openness

rules, and protects mobile broadband users with the full array of Open Internet rules. It does so while

preserving incentives for investment and innovation by broadband providers by affording them an even

more tailored version of the light-touch regulatory treatment that fostered tremendous growth in the

mobile wireless industry.

Following are the key provisions and rules of the FCC’s Open Internet Order:

New Rules to Protect an Open Internet

While the FCC’s 2010 Open Internet rules had limited applicability to mobile broadband, the new rules—

in their entirety—would apply to fixed and mobile broadband alike, recognizing advances in technology

and the growing significance of wireless broadband access in recent years (while recognizing the

importance of reasonable network management and its specific application to mobile and unlicensed Wi-

Fi networks). The Order protects consumers no matter how they access the Internet, whether on a desktop

computer or a mobile device.

Bright Line Rules: The first three rules ban practices that are known to harm the Open Internet:

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 of any kind—in other words, no “fast lanes.”

This rule also bans ISPs from prioritizing content and services of their affiliates.

The bright-line rules against blocking and throttling will prohibit harmful practices that target specific

applications or classes of applications. And the ban on paid prioritization ensures that there will be no

fast lanes.

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. Today’s

Order ensures that the Commission will have authority to address questionable practices on a case-by-

case basis, and provides guidance in the form of factors on how the Commission 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.

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FCC Adopts Strong, Sustainable Rules to Protect the Open Internet

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Attachments & Related Documents

Wheeler Statement
Clyburn Statement
Rosenworcel Statement
Pai Statement
O’Rielly Statement

Download Options

Word Document
PDF Document
Text Document

Released: February 26, 2015
image03-00.jpg612x792

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. For example, a provider can’t cite reasonable

network management to justify reneging on its promise to supply a customer with “unlimited”

data.

Broad Protection

Some data services do not go over the public Internet, and therefore are not “broadband Internet access”

services (VoIP from a cable system is an example, as is a dedicated heart-monitoring service). The Order

ensures that these services do not undermine the effectiveness of the Open Internet rules. Moreover, all

broadband providers’ transparency disclosures will continue to cover any offering of such non-Internet

access data services—ensuring that the public and the Commission can keep a close eye on any tactics

that could undermine the Open Internet rules.

Interconnection: New Authority to Address Concerns

For the first time the Commission can address issues that may arise in the exchange of traffic between

mass-market broadband providers and other networks and services. Under the authority provided by the

Order, the Commission can hear complaints and take appropriate enforcement action if it determines the

interconnection activities of ISPs are not just and reasonable.

Legal Authority: Reclassifying Broadband Internet Access under Title II

The Order provides the strongest possible legal foundation for the Open Internet rules by relying on

multiple sources of authority including both Title II of the Communications Act and Section 706 of the

Telecommunications Act of 1996. At the same time, the Order refrains – or forbears – from enforcing 27

provisions of Title II and over 700 associated regulations 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, while not

burdening broadband providers with anachronistic utility-style regulations such as rate regulation, tariffs

or network sharing requirements.

First, the Order reclassifies “broadband Internet access service”—that’s the retail broadband

service Americans buy from cable, phone, and wireless providers—as a telecommunications

service under Title II. This decision is fundamentally a factual one. It recognizes that today

broadband Internet access service is understood by the public as a transmission platform through

which consumers can access third-party content, applications, and services of their choosing.

Reclassification of broadband Internet access service also addresses any limitations that past

classification decisions placed on the ability to adopt strong open Internet rules, as interpreted by

the D.C. Circuit in the Verizon case. And it supports the Commission’s authority to address

interconnection disputes on a case-by-case basis, because the promise to consumers that they will

be able to travel the Internet encompasses the duty to make the necessary arrangements that allow

consumers to use the Internet as they wish.

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FCC Adopts Strong, Sustainable Rules to Protect the Open Internet

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Attachments & Related Documents

Wheeler Statement
Clyburn Statement
Rosenworcel Statement
Pai Statement
O’Rielly Statement

Download Options

Word Document
PDF Document
Text Document

Released: February 26, 2015
image04-00.jpg612x792

Second, the proposal finds further grounding in Section 706 of the Telecommunications Act of

1996. Notably, the Verizon court held that Section 706 is an independent grant of authority to the

Commission that supports adoption of Open Internet rules. Using it here—without the limitations

of the common carriage prohibition that flowed from earlier the “information service”

classification—bolsters the Commission’s authority.

Third, the Order’s provisions on mobile broadband also are based on Title III of the

Communications Act. The Order finds that mobile broadband access service is best viewed as a

commercial mobile service or its functional equivalent.

Forbearance: A modernized, light-touch approach

Congress requires the FCC to refrain from enforcing – forbear from – provisions of the Communications

Act that are not in the public interest. The Order applies some key provisions of Title II, and forbears

from most others. Indeed, the Order ensures that some 27 provisions of Title II and over 700 regulations

adopted under Title II will not apply to broadband. 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:

o

The proposed Order applies “core” provisions of Title II: Sections 201 and 202 (e.g., no

unjust or unreasonable practices or discrimination)

o

Allows investigation of consumer complaints under section 208 and related enforcement

provisions, specifically sections 206, 207, 209, 216 and 217

o

Protects consumer privacy under Section 222

o

Ensures fair access to poles and conduits under Section 224, which would boost the

deployment of new broadband networks

o

Protects people with disabilities under Sections 225 and 255

o

Bolsters universal service fund support for broadband service in the future through partial

application of Section 254.

Major Provisions Subject to Forbearance:

o

Rate regulation: the Order makes clear that broadband providers shall not be subject to

utility-style rate regulation, including rate regulation, tariffs, and last-mile unbundling.

o

Universal Service Contributions: the Order DOES NOT require broadband providers to

contribute to the Universal Service Fund under Section 254. The question of how best to

fund the nation’s universal service programs is being considered in a separate, unrelated

proceeding that was already underway.

o

Broadband service will remain exempt from state and local taxation under the Internet

Tax Freedom Act. This law, recently renewed by Congress and signed by the President,

bans state and local taxation on Internet access regardless of its FCC regulatory

classification.

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Attachments & Related Documents

Wheeler Statement
Clyburn Statement
Rosenworcel Statement
Pai Statement
O’Rielly Statement

Download Options

Word Document
PDF Document
Text Document

Released: February 26, 2015
image05-00.jpg612x792

Effective Enforcement

o

The FCC will enforce the Open Internet rules through investigation and processing of

formal and informal complaints

o

Enforcement advisories, advisory opinions and a newly-created ombudsman will provide

guidance

o

The Enforcement Bureau can request objective written opinions on technical matters

from outside technical organizations, industry standards-setting bodies and other

organizations.

Fostering Investment and Competition

All of this can be accomplished while encouraging investment in broadband networks. To preserve

incentives for broadband operators to invest in their networks, the Order will modernize Title II using the

forbearance authority granted to the Commission by Congress—tailoring the application of Title II for the

21st century, encouraging Internet Service Providers to invest in the networks on which Americans

increasingly rely.

The Order forbears from applying utility-style rate regulation, including rate regulation or tariffs,

last-mile unbundling, and burdensome administrative filing requirements or accounting standards.

Mobile voice services have been regulated under a similar light-touch Title II approach, and

investment and usage boomed.

Investment analysts have concluded that Title II with appropriate forbearance is unlikely to have

any negative on the value or future profitability of broadband providers. Providers such as Sprint,

Frontier, as well as representatives of hundreds of smaller carriers that have voluntarily adopted

Title II regulation, have likewise said that a light-touch, Title II classification of broadband will

not depress investment.

Action by the Commission February 26, 2015, by Report and Order on Remand, Declaratory Ruling, and

Order (FCC 15-24). Chairman Wheeler, Commissioners Clyburn and Rosenworcel with Commissioners

Pai and O’Rielly dissenting. Chairman Wheeler, Commissioners Clyburn, Rosenworcel, Pai and

O’Rielly issuing statements.

Docket No.: 14-28

-FCC-

News about the Federal Communications Commission can also be found

on the Commission’s web site www.fcc.gov.

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