On May 15, 2014, the FCC adopted, by 3-2 vote along party lines, the Notice of Proposed Rulemaking (NPRM) seeking to replace the recently vacated Open Internet rules. The NPRM has been the subject of much debate recently, and deliberations among the Democratic Commissioners apparently went down to the wire. Initial Comments are due July 15, 2014, and Reply Comments are due September 10, 2014.

The NPRM discusses several potential Commission rules or holdings:

  • What is the “best source” of statutory authority to choose for the new rules? As we reported in January, this issue was the crux of the DC Circuit’s vacatur of the previous Open Internet rules. The NPRM, according to the May 15 Staff presentation, tentatively concludes that Section 706 of the Telecommunications Act of 1996 is the best source. The NPRM also asks, however, whether Title II of the Communications Act, reserved for telecommunications common carriers, is also appropriate. Word is that Title II was added at the request of Commissioners Jessica Rosenworcel and Mignon Clyburn.
  • What should be the scope of the new rules? Should they include wireless service under Title III of the Communications Act?
  • Expanded and strengthened “transparency” rules stating the types of disclosures that network operators must make regarding their network management practices. Note that the transparency rule was the only aspect of the prior rules which survived appeal.
  • Blocking of lawful Internet content is an unlawful and unreasonable practice. This discussion will include issue of “paid prioritization,” whereby network operators seek payment from content providers to deliver their content more quickly. The NPRM suggests application of a rebuttable presumption that paid prioritization contracts are unlawful.
  • For all other types of potentially unlawful activity, the “commercially reasonable” test will apply.
  • Enforcement of the new rules will be supervised by an “ombudsman” and might permit anonymous complaints. The NPRM asks how to ensure that small businesses and start-ups can have effective access to the enforcement process.

The FCC’s Fact Sheet about the NPRM is available here.