The FCC has released its order in the network neutrality proceeding. The 400-page decision (including 80 pages of dissents and just 8 pages of rules, 6 of which are devoted to enforcement and complaints) does not hold many surprises, but there are a few. We have summarized the whole order elsewhere, but wanted to point out some of the highlights and items that were not revealed before.
These are the key points in the order:
- The rules apply only to “broadband Internet access service.” This services covers wired and wireless retail broadband, including Wi-Fi. It excludes dial-up; enterprise, VPN, hosting, data storage and backbone services; “specialized services” that do not provide a connection to the broader Internet; and convenience services like those provided at coffee shops, bookstores and colleges and universities.
- The rules prohibit broadband Internet access service providers from blocking access to lawful content, applications and services and from blocking use of devices that are not harmful to the network; impairing or degrading Internet traffic based on content, applications, or services, or based on the customer’s use of a device that does not harm the network; paid prioritization of traffic and favoring traffic from any affiliate; and, in general, unreasonably interfering with or unnecessarily disadvantaging end users or edge providers in the use of Internet service.
- ISPs will continue to be required to disclose the terms and conditions of the services they offer, including prices and speeds. They also will now be required to disclose promotional rates, data caps and allowances and packet loss, as well as to provide specific notification of network practices that are likely to significantly affect consumers’ use of the service.
- Broadband Internet access service will be classified as a common carrier service, subject to many, but not all, of the rules that govern telephone services. The requirements that will apply include bans on unjust and unreasonable practices; customer privacy obligations in the Communications Act (but not the rules that implement those obligations); and accessibility for people with disabilities. The FCC will not set retail prices; require approval for entry into and exit from the market; apply truth-in-billing rules; or require ISPs to share their networks with competitors.
- For the first time, the FCC will assert its authority over interconnection between ISPs and other providers. The FCC did not adopt any specific rules, but will address complaints filed against ISPs using the “unjust and unreasonable” practices standard it applies to common carrier services generally.
Some elements that had not been discussed before. They include the following:
- Applying the ban on paid prioritization rule to affiliated entities: This rule may have an effect similar to the non-discrimination rule adopted in 2010, but it is not apparent whether the FCC intends it to cover practices that would have been allowed by that rule. This rule could affect how video on demand services can be offered.
- Advisory opinions: The FCC had said that it would issue advisory opinions, but that they would not be binding precedent. The order explains that a company that obtains an advisory opinion can rely on it until the FCC withdraws the opinion, which will insulate companies that receive them from enforcement action. This approach also may make it less likely that the FCC will issue advisory opinions without careful consideration, which will make them more useful to third parties.
- Waivers of the paid priority rule: The FCC will consider requests for waiver of the paid priority rule, under standards described in the order. However, it does not appear that the FCC intends to grant many waivers.
- Notice of network practices that could affect consumers’ use of Internet access service: This requirement was not mentioned when the FCC adopted the rules. It potentially could require customer-specific notices based on how the customer uses the service or simply require a description in the general notice that the ISP posts on its website, possibly describing the particular uses that could be affected. In either case, this rule will require ISPs to evaluate the specific impacts of new network management practices before they are implemented.
The long-running controversy around network neutrality shows no signs of abating. In fact, the dissenting Republican commissioners and the majority have continued to issue statements and press releases following the release of the order, and Congressional hearings focused on network neutrality will take place next week. Interconnection issues also are likely to continue to simmer, and it would not be a surprise if complaints about interconnection practices were filed at the FCC soon after the order becomes effective. In addition, the order sets up further action on at least three different questions, including whether small ISPs will be required to meet the new requirements for additional disclosures about their service; how to implement the privacy obligations created by the order; and whether ISPs ultimately will be required to contribute to the federal universal service fund. As a result, many questions will remain to be answered even after this order goes into effect.