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Federal Internet Law & Policy
An Educational Project
Open Internet Rules 2010 (Genachowski)
 Dont be a FOOL; The Law is Not DIY


Vacated in part and Remanded - See OI Rules 2015

Derived From: 12/23/10 FCC Acts to Preserve Internet Freedom and Openness. R&O: Word | Acrobat Executive Summary

Today the Commission takes an important step to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression. To provide greater clarity and certainty regarding the continued freedom and openness of the Internet, we adopt three basic rules that are grounded in broadly accepted Internet norms, as well as our own prior decisions:

We believe these rules, applied with the complementary principle of reasonable network management, will empower and protect consumers and innovators while helping ensure that the Internet continues to flourish, with robust private investment and rapid innovation at both the core and the edge of the network. This is consistent with the National Broadband Plan goal of broadband access that is ubiquitous and fast, promoting the global competitiveness of the United States. [Plan at xi, 3-5]

Just over a year ago, we launched a public process to determine whether and what actions might be necessary to preserve the characteristics that have allowed the Internet to grow into an indispensable platform supporting our nation's economy and civic life, and to foster continued investment in the physical networks that enable the Internet. Since then, more than 100,000 commenters have provided written input. Commission staff held several public workshops and convened a Technological Advisory Process with experts from industry, academia, and consumer advocacy groups to collect their views regarding key technical issues related to Internet openness.

This process has made clear that the Internet has thrived because of its freedom and openness-the absence of any gatekeeper blocking lawful uses of the network or picking winners and losers online. Consumers and innovators do not have to seek permission before they use the Internet to launch new technologies, start businesses, connect with friends, or share their views. The Internet is a level playing field. Consumers can make their own choices about what applications and services to use and are free to decide what content they want to access, create, or share with others. This openness promotes competition. It also enables a self-reinforcing cycle of investment and innovation in which new uses of the network lead to increased adoption of broadband, which drives investment and improvements in the network itself, which in turn lead to further innovative uses of the network and further investment in content, applications, services, and devices. A core goal of this Order is to foster and accelerate this cycle of investment and innovation.

The record and our economic analysis demonstrate, however, that the openness of the Internet cannot be taken for granted, and that it faces real threats. Indeed, we have seen broadband providers endanger the Internet's openness by blocking or degrading content and applications without disclosing their practices to end users and edge providers, notwithstanding the Commission's adoption of open Internet principles in 2005. In light of these considerations, as well as the limited choices most consumers have for broadband service, broadband providers' financial interests in telephony and pay television services that may compete with online content and services, and the economic and civic benefits of maintaining an open and competitive platform for innovation and communication, the Commission has long recognized that certain basic standards for broadband provider conduct are necessary to ensure the Internet's continued openness. The record also establishes the widespread benefits of providing greater clarity in this area-clarity that the Internet's openness will continue, that there is a forum and procedure for resolving alleged open Internet violations, and that broadband providers may reasonably manage their networks and innovate with respect to network technologies and business models. We expect the costs of compliance with our prophylactic rules to be small, as they incorporate longstanding openness principles that are generally in line with current practices and with norms endorsed by many broadband providers. Conversely, the harms of open Internet violations may be substantial, costly, and in some cases potentially irreversible.

The rules we proposed in the Open Internet NPRM and those we adopt today follow directly from the Commission's bipartisan Internet Policy Statement, adopted unanimously in 2005 and made temporarily enforceable for certain broadband providers in 2005 [AT&T/SBC] [Verizon/MCI] and 2007 [AT&T / BS]; openness protections the Commission established in 2007 for users of certain wireless spectrum; and a notice of inquiry in 2007 that asked, among other things, whether the Commission should add a principle of nondiscrimination to the Internet Policy Statement. Our rules build upon these actions, first and foremost by requiring broadband providers to be transparent in their network management practices, so that end users can make informed choices and innovators can develop, market, and maintain Internet-based offerings. The rules also prevent certain forms of blocking and discrimination with respect to content, applications, services, and devices that depend on or connect to the Internet.

An open, robust, and well-functioning Internet requires that broadband providers have the flexibility to reasonably manage their networks. Network management practices are reasonable if they are appropriate and tailored to achieving a legitimate network management purpose. Transparency and end-user control are touchstones of reasonableness.

We recognize that broadband providers may offer other services over the same last-mile connections used to provide broadband service. These "specialized services" can benefit end users and spur investment, but they may also present risks to the open Internet. We will closely monitor specialized services and their effects on broadband service to ensure, through all available mechanisms, that they supplement but do not supplant the open Internet.

Mobile broadband is at an earlier stage in its development than fixed broadband and is evolving rapidly. For that and other reasons discussed below, we conclude that it is appropriate at this time to take measured steps in this area. Accordingly, we require mobile broadband providers to comply with the transparency rule, which includes enforceable disclosure obligations regarding device and application certification and approval processes; we prohibit providers from blocking lawful websites; and we prohibit providers from blocking applications that compete with providers' voice and video telephony services. We will closely monitor the development of the mobile broadband market and will adjust the framework we adopt today as appropriate.

These rules are within our jurisdiction over interstate and foreign communications by wire and radio. Further, they implement specific statutory mandates in the Communications Act ("Act") and the Telecommunications Act of 1996 ("1996 Act"), including provisions that direct the Commission to promote Internet investment and to protect and promote voice, video, and audio communications services.

The framework we adopt aims to ensure the Internet remains an open platform- one characterized by free markets and free speech- that enables consumer choice, end-user control, competition through low barriers to entry, and the freedom to innovate without permission . The framework does so by protecting openness through high-level rules, while maintaining broadband providers' and the Commission's flexibility to adapt to changes in the market and in technology as the Internet continues to evolve.

. . . . .

Scope of the Rules: BIAS

44. We find that open Internet rules should apply to "broadband Internet access service," which we define 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. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.

The term "broadband Internet access service" includes services provided over any technology platform, including but not limited to wire, terrestrial wireless (including fixed and mobile wireless services using licensed or unlicensed spectrum), and satellite. [145]

45. "Mass market" means a service marketed and sold on a standardized basis to residential customers, small businesses, and other end-user customers such as schools and libraries. [146] For purposes of this definition, "mass market" also includes broadband Internet access services purchased with the support of the E-rate program that may be customized or individually negotiated. The term does not include enterprise service offerings, which are typically offered to larger organizations through customized or individually negotiated arrangements. [147]

46. "Broadband Internet access service" encompasses services that "provide the capability to transmit data to and receive data from all or substantially all Internet endpoints." To ensure the efficacy of our rules in this dynamic market, we also treat as a "broadband Internet access service" any service the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in these rules.

47. A key factor in determining whether a service is used to evade the scope of the rules is whether the service is used as a substitute for broadband Internet access service. For example, an Internet access service that provides access to a substantial subset of Internet endpoints based on end users preference to avoid certain content, applications, or services; [148] Internet access services that allow some uses of the Internet (such as access to the World Wide Web) but not others (such as e-mail); or a "Best of the Web" Internet access service that provides access to 100 top websites could not be used to evade the open Internet rules applicable to "broadband Internet access service." Moreover, a broadband provider may not evade these rules simply by blocking end users' access to some Internet endpoints. Broadband Internet access service likely does not include services offering connectivity to one or a small number of Internet endpoints for a particular device, e.g. , connectivity bundled with e-readers, heart monitors, or energy consumption sensors, to the extent the service relates to the functionality of the device. [149] Nor does broadband Internet access service include virtual private network services, content delivery network services, multichannel video programming services, hosting or data storage services, or Internet backbone services (if those services are separate from broadband Internet access service). These services typically are not mass market services and/or do not provide the capability to transmit data to and receive data from all or substantially all Internet endpoints. [150]

But see 2014 Open Internet NPRM, 29 FCC Rcd at 5582, para. 59 (asking whether OI should apply to backbones and Internet traffic exchange)

48. Although one purpose of our open Internet rules is to prevent blocking or unreasonable discrimination in transmitting online traffic for applications and services that compete with traditional voice and video services, we determine that open Internet rules applicable to fixed broadband providers should protect all types of Internet traffic, not just voice or video Internet traffic.  This reflects, among other things, our view that it is generally preferable to neither require nor encourage broadband providers to examine Internet traffic in order to discern which traffic is subject to the rules. Even if we were to limit our rules to voice or video traffic, moreover, it is unlikely that broadband providers could reliably identify such traffic in all circumstances, particularly if the voice or video traffic originated from new services using uncommon protocols. [151] Indeed, limiting our rules to voice and video traffic alone could spark a costly and wasteful cat-and-mouse game in which edge providers and end users seeking to obtain the protection of our rules could disguise their traffic as protected communications. [152]

49. We recognize that there is one Internet (although it is comprised of a multitude of different networks), and that it should remain open and interconnected regardless of the technologies and services end users rely on to access it. However, for reasons discussed in Part III.E below related to mobile broadband-including the fact that it is at an earlier stage and more rapidly evolving-we apply open Internet rules somewhat differently to mobile broadband than to fixed broadband at this time. We define "fixed broadband Internet access service" as a broadband Internet access service that serves end users primarily at fixed endpoints using stationary equipment, such as the modem that connects an end user's home router, computer, or other Internet access device to the network. This term encompasses fixed wireless broadband services (including services using unlicensed spectrum) and fixed satellite broadband services. We define "mobile broadband Internet access service" as a broadband Internet access service that serves end users primarily using mobile stations. [47 U.S.C. § 153(34) ("The term 'mobile station' means a radio-communication station capable of being moved and which ordinarily does move.")] Mobile broadband Internet access includes services that use smartphones as the primary endpoints for connection to the Internet. [We note that Section 337(f)(1) of the Act excludes public safety services from the definition of mobile broadband Internet access service.] The discussion in this Part applies to both fixed and mobile broadband, unless specifically noted. Part III.E further discusses application of open Internet rules to mobile broadband.

50.  For a number of reasons, these rules apply only to the provision of broadband Internet access service and not to edge provider activities, such as the provision of content or applications over the Internet. [155] First, the Communications Act particularly directs us to prevent harms related to the utilization of networks and spectrum to provide communication by wire and radio. [156 See 47 U.S.C. § 151] Second, these rules are an outgrowth of the Commission's Internet Policy Statement . [157] The Statement was issued in 2005 when the Commission removed key regulatory protections from DSL service, and was intended to protect against the harms to the open Internet that might result from broadband providers' subsequent conduct. [158] The Commission has always understood those principles to apply to broadband Internet access service only, as have most private-sector stakeholders. [159] Thus, insofar as these rules translate existing Commission principles into codified rules, it is appropriate to limit the application of the rules to broadband Internet access service. Third, broadband providers control access to the Internet for their subscribers and for anyone wishing to reach those subscribers. [160] They are therefore capable of blocking, degrading, or favoring any Internet traffic that flows to or from a particular subscriber.

51.  We also do not apply these rules to dial-up Internet access service because telephone service has historically provided the easy ability to switch among competing dial-up Internet access services. Moreover, the underlying dial-up Internet access service is subject to protections under Title II of the Communications Act. The Commission's interpretation of those protections has resulted in a market for dial-up Internet access that does not present the same concerns as the market for broadband Internet access. [161] No commenters suggested extending open Internet rules to dial-up Internet access service.

52. Finally, we decline to apply our rules directly to coffee shops, bookstores, airlines, and other entities when they acquire Internet service from a broadband provider to enable their patrons to access the Internet from their establishments (we refer to these entities as "premise operators"). [162] These services are typically offered by the premise operator as an ancillary benefit to patrons. However, to protect end users, we include within our rules broadband Internet access services provided to premise operators for purposes of making service available to their patrons. [163] Although broadband providers that offer such services are subject to open Internet rules, we note that addressing traffic unwanted by a premise operator is a legitimate network management purpose. [164]

CITATION: Preserving the Open Internet, Report and Order, 25 FCC Rcd 17905 (2010) (2010 Open Internet Order), aff’d in part, vacated and remanded in part sub nom. Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014).

12/23/10 FCC Acts to Preserve Internet Freedom and Openness.
News Release(12/21/10): Word | Acrobat
R&O: Word | Acrobat
Genachowski Statement: Word | Acrobat
Copps Statement: Word | Acrobat
McDowell Statement: Word | Acrobat
Clyburn Statement: Word | Acrobat
Baker Statement: Word | Acrobat

Open Internet Applications

Third Way

6/17/10 FCC to Seek Best Legal Framework for Broadband Internet Access.
News Release: Word | Acrobat
Presentation: PowerPoint
NOI: Word | Acrobat
Genachowski Statement: Word | Acrobat
Copps Statement: Word | Acrobat
McDowell Statement: Word | Acrobat
Clyburn Statement: Word | Acrobat
Baker Statement: Word | Acrobat

 

Further Inquiry

Released:  09/01/2010.  Further Inquiry Into Two Under-Developed Issues In The Open Internet Proceeding. (DA No.  10-1667). (Dkt No 09-191 07-52 ).  WCB . Contact:  William Kehoe or John Spencer PDF WORD Comments Due 30+Fed Reg Publication; Replies Due 55+Fed Reg Publication.

Notice of Proposed Rulemaking

10/22/09 News Release: Word | Acrobat

In the next chapter of a longstanding effort to preserve the free and open Internet, the Federal Communications Commission is seeking public input on draft rules that would codify and supplement existing Internet openness principles.

In addition to providing greater predictability for all stakeholders, the Notice is aimed at securing the many economic and social benefits that an open Internet has historically provided. It seeks to do so in a manner that will promote and protect the legitimate needs of consumers, broadband Internet access service providers, entrepreneurs, investors, and businesses of all sizes that make use of the Internet.

The Commission has addressed openness issues in a variety of contexts and proceedings, including: a unanimous policy statement in 2005 , a notice of inquiry on broadband industry practices in 2007 , public comment on several petitions for rulemaking , conditions associated with significant communications industry mergers, the rules for the 700 MHz spectrum auction in 2007 , specific enforcement actions, and public en banc hearings. During this time period, opportunities for public participation have generated over 100,000 pages of input in approximately 40,000 filings from interested parties and members of the public.

The process today's Notice initiates will build upon the existing record at the Commission to identify the best means to achieve the goal of preserving and promoting the open Internet.

Recognizing that the proposed framework needs to balance potentially competing interests while helping to ensure an open, safe, and secure Internet, the draft rules would permit broadband Internet access service providers to engage in reasonable network management, including but not limited to reasonable practices to reduce or mitigate the effects of network congestion.

Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:

  1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user's choice over the Internet;
  2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user's choice;
  3. would not be allowed to prevent any of its users from connecting to and using on its network the user's choice of lawful devices that do not harm the network;
  4. would not be allowed to deprive any of its users of the user's entitlement to competition among network providers, application providers, service providers, and content providers;
  5. would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and
  6. 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 specified in this rulemaking.

The draft rules make clear that providers would also be permitted to address harmful traffic and traffic unwanted by users, such as spam, and prevent both the transfer of unlawful content, such as child pornography, and the unlawful transfer of content, such as a transfer that would infringe copyright. Further, nothing in the draft rules supersedes any obligation a broadband Internet access service provider may have -- or limits its ability -- to deliver emergency communications, or to address the needs of law enforcement, public safety, or national or security authorities, consistent with applicable law.

The Commission is also seeking comment on how it should address "managed" or "specialized" services, which are Internet-Protocol-based offerings provided over the same networks used for broadband Internet access services. While the proceeding will seek input on how best to define and treat such services, managed services could include voice, video, and enterprise business services, or specialized applications like telemedicine, smart grid, or eLearning offerings. These services may provide consumer benefits and lead to increased deployment of broadband networks.

The Notice asks how the Commission should define the category of managed or specialized services, what policies should apply to them, and how to ensure that broadband providers' ability to innovate, develop valuable new services, and experiment with new technologies and business models can co-exist with the preservation of the free and open Internet on which consumers and businesses of all sizes depend.

The Notice affirms that the six principles it proposes to codify would apply to all platforms for broadband Internet access, including mobile wireless broadband, while recognizing that different access platforms involve significantly different technologies, market structures, patterns of consumer usage, and regulatory history. To that end, the Notice seeks comment on how, in what time frames or phases, and to what extent the principles should apply to non-wireline forms of broadband Internet access, including mobile wireless.

Recognizing that the Commission's decisions in this rulemaking must reflect a thorough understanding of current technology and future technological trends, the Chief of the Commission's Office of Engineering & Technology will create an inclusive, open, and transparent process for obtaining the best technical advice and information from a broad range of engineers.

The adoption of this Notice will open a window for submitting comments to the FCC. Comments can be filed through the Commission's Electronic Comment Filing System, and are due on Thursday, January 14. Reply comments are due on Friday, March 5. In addition, the rulemaking process will include many other avenues for public input, including open workshops on key issues; providing feedback through openinternet.gov, which will include regular blog posts by Commission staff; and other new media tools, including IdeaScale, an online platform for brainstorming and rating solutions to policy challenges.

Action by the Commission, October 22, 2009, by Notice of Proposed Rulemaking (FCC 09-93). Chairman Genachowski, Commissioners Copps and Clyburn; Commissioner McDowell and Commissioner Baker concurring in part, dissenting in part. Separate statements issued by Chairman Genachowski, Commissioners Copps, McDowell, Clyburn and Baker.

GN Docket No.: 09-191 - WC Docket No.: 07-52

10/22/09 Commission Seeks Public Input on Draft Rules to Preserve the Free and Open Internet. NPRM: Word | Acrobat

News Release: Word | Acrobat
Genachowski Statement: Word | Acrobat
Copps Statement: Word | Acrobat
McDowell Statement: Word | Acrobat
Clyburn Statement: Word | Acrobat
Baker Statement: Word | Acrobat
Staff Presentation: Acrobat

October 23 2009: FCC Commission Meeting where Network Neutrality NPRM (what's an NPRM?) is voted on. Commissioners unanimously vote in favor of the proceeding (unanimously that there should be a proceeding to explore this - not unanimous on what the solution should be).

December 2010 Commission Meeting

FCC Meeting October 23, 2009

September 2009: FCC Ch Genachowski announced that the FCC would be initiating a Network Neutrality rule making proceeding. See Previous FCC Network Neutrality proceedings.

Workshops

News

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