FCC Open Internet Order 2010

From CS378H Public Policy and the Digitally Native Technologist
Jump to navigation Jump to search

The Federal Communications Commission (FCC) Open Internet Order, first proposed as general principles in 2005 and approved on December 21, 2010, is a set of regulations, authorized under Section 706 of the 1996 Telecommunications Act, that move towards the concept of internet neutrality. A lawsuit was filed against the 2010 Order in less than a month by Verizon Communications, Inc. Most of the FCC Open Internet Order 2010 was vacated under the 2014 case ruling.

Purpose

The FCC's goal with the Open Internet Order is to ensure access to an open and robust high-speed Internet service for every American. The Commission believes that an open and non-discriminatory open Internet platform is essential to foster "innovation, investment, job creation, economic growth, competition, and free expression." <ref name=fccpaper>In the Matter of Preserving the Open Internet Broadband Industry Practices</ref> The FCC argues that the benefits of protecting the Internet's openness exceed any costs of doing so. They argue that without these protections, widespread, uneven interference with the Internet's openness could cause costly or even irreversible damage to the infrastructure that is currently in place.

In the decision by Judge Tatel for the Comcast v. FCC case, the court ruled that the FCC lacked the power to enforce net neutrality rules on ISPs. However, the D.C. Circuit also hinted that the court would accept a jurisdictional argument if it were made under other titles of the Telecommunications Act.

The FCC thus sought to establish a new set of rules that would claim authority under Section 706 and Titles II and VI of the Communications Act. These rules made up the 2010 Open Internet Order.

Rules

The FCC Open Internet Order 2010 is comprised of four core rules.

Transparency. Both fixed and mobile broadband providers must make public their network management practices, performance details and heuristics, and the terms and conditions of their services;

No Blocking. Fixed broadband providers may not block any traffic that carries lawful content. This includes (but is not limited to) websites, services, and applications. In addition, fixed providers may not block applications that offer competing services to the provider's own voice or video telephony services;

No Unreasonable Discrimination. Fixed broadband providers may not throttle, misroute, or otherwise discriminate in transmitting lawful network traffic.

Reasonable Network Management. A direct quote in the 2010 Open Internet Order states that "a network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service." <ref name=fccpaper /> All providers of broadband Internet access must employ network management practices to:

  • Reduce or mitigate the effects of congestion on their networks and address quality of service (QoS) concerns
  • Address traffic that is unwanted by users or is considered harmful
  • Prevent the transfer of unlawful content, or
  • Prevent the unlawful transfer of content.

Scope

The Open Internet Order of 2010 found that these rules should apply to "Broadband Internet access services." This is defined as "a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service." <ref name=fccpaper />

The FCC defines "Broadband Internet access services" to include services provided over any technology platform, including, but not limited to, wire, terrestrial wireless, and satellite services. The FCC also notes that because of the rapidly evolving earlier-stage platform that is mobile broadband, certain considerations that suggest differences in the application of open Internet protections should apply. In general, the Open Internet Order is more strict to fixed providers than to mobile providers. The FCC's definition of a broadband provider proved to be the crucial point on which the Verizon vs FCC case was decided.

Verizon Communications Inc. v. FCC

On January 20, 2011, Verizon Communications sued the FCC over the 2010 Open Internet Order, claiming that it exceeded the authority of the FCC and created uncertainty for the communications industry. In the appeal, Senior Vice President Michael E. Glover stated that “We are deeply concerned by the F.C.C.’s assertion of broad authority for sweeping new regulation of broadband networks and the Internet itself."<ref>Verizon Files Appeal in Federal Court Regarding FCC Net Neutrality Order</ref> Verizon filed its suit in the D.C. Circuit Court of Appeals, the same court that ruled in favor of Comcast in the April 2010 court case, Comcast v FCC. This case took place over the course of four years, culminating in a partial victory for Verizon.

Public Reaction

Consumer groups showed widespread disdain for Verizon's suit, accusing them of venue-shopping. Because the suit was made on the claim that the 2010 Open Internet Order modified the company’s licenses for wireless phone spectrum, it should have been decided in the District of Columbia circuit rather than the appeal court. Additionally, these consumer groups also noted that Verizon had requested the same panel of judges who decided the Comcast case. Another notable group, Free Press, held the opinion that the FCC Order was not strong enough. Aparna Sridhar, the policy counsel for Free Press, stated that “[Verizon's lawsuit] demonstrates that even the most weak and watered-down rules aren’t enough to appease giant phone companies.” <ref>Verizon Sues F.C.C. to Overturn Order on Blocking Web Sites</ref>

Resolution

Resolved on January 14, 2014, the D.C. Circuit Court of Appeals ruled that the FCC only had the authority to enforce the Transparency portion of the order. The other portions were vacated under the following reasoning. <ref>On Petition For Review and Notice of Appeal of an Order of the Federal Communications Commission</ref>

  • The FCC had previously classified broadband providers as "information services" and not "telecommunications services",
  • No Blocking and No Unreasonable Discrimination could only be applied to common carriers under Title II of the Communications Act,
  • Broadband providers are distinct from common carriers.

The Transparency rule was upheld due to its application to both common carriers and broadband providers.

References

<references/>