On October 22, 2009, the FCC launched a Notice of Proposed Rulemaking (NPRM) proposing to adopt six network neutrality rules as obligations on broadband Internet service providers. The issue of network neutrality has been hotly contested for years, with proponents of such regulation arguing that policing is necessary to ensure that content is not degraded or made inaccessible to consumers and to prevent dividing of the Internet into slow and fast lanes, while opponents argue that the Internet will continue to function most effectively free from government regulation and dispute the need for network neutrality rules.
The NPRM proposes to codify four Internet principles that the FCC previously articulated in its 2005 Internet Policy Statement, along with two new rules relating to nondiscrimination and transparency. Under the proposed rules, a broadband Internet service provider: (1) could not prevent users from sending or receiving the lawful content of the user's choice over the Internet; (2) could not prevent users from running the lawful applications or using the lawful services of the user's choice; (3) could not prevent users from connecting to and using on its network the user's choice of lawful devices that do not harm the network; (4) would be required to treat lawful content, applications and services in a nondiscriminatory manner; and (5) would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application and service providers to enjoy the protections of the network neutrality rules. The sixth principle specifies that consumers are entitled to competition among network providers, application and service providers, and content providers.
The NPRM states that the Commission needs to take action because "some conduct is occurring in the marketplace that warrants closer attention and could call for additional action by the Commission, including instances in which some Internet service providers have been blocking or degrading Internet traffic, and doing so without disclosing those practices to users." In support of this assertion, the NPRM cites two cases: the 2005 Madison River consent decree, which required a telephone company and provider of DSL service to stop blocking its subscribers' ability to use Voice over Internet Protocol; and the 2008 Comcast Order, in which the FCC ordered the company to end certain "discriminatory" network management practices and make certain disclosures regarding such practices.
The proposed rules would allow broadband Internet service providers to engage in "reasonable network management," which includes practices to reduce or mitigate the effects of congestion on their networks, address quality-of-service concerns, address traffic that is harmful or unwanted by users, prevent the transfer of unlawful content (such as the dissemination of child pornography) and prevent the unlawful transfer of content (such as content that infringes on copyrights). The NPRM also proposes that broadband Internet service providers be able to employ other reasonable network management practices that do not fall within one of these categories.
Comments responding to the NPRM are due by January 14, 2010, and reply comments are due by March 5, 2010.