Taking a Closer Look at Net Neutrality RulesSeptember 3, 2013
Taking a closer look at the FCC’s Net Neutrality Rules.
Yesterday, Michael wrote about the importance of net neutrality, and what’s at stake in the court case that will be argued next Monday. Today, I’d like to take a closer look at the source of the court case that’s going to be argued next Monday: the FCC’s net neutrality rules that Verizon is suing to overturn.
The FCC calls its rules the “Open Internet Order.” That link leads to a lengthy pdf—including all the procedural stuff and the opinions of separate Commissioners, it comes to over 200 pages. But the active part of the document—the core of the rules that Verizon is disputing—only takes up two of those pages. (The other hundreds of pages are mostly the Commission’s findings about the need for the rules and their authority to enact them—a topic Harold will cover tomorrow.)
If you’d like a look at what’s in those two pages, here they are:
The rules do 3 major things: they (1) require broadband providers to be transparent about their practices; (2) prevent them from blocking sites, and in many cases, applications, services, and devices; and (3) prevent most providers from unreasonably discriminating against certain traffic.
A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.
Basically, this means that someone providing broadband internet access has to disclose what they’re doing to traffic and enough about their terms and conditions, so that customers know what they’re getting when they sign up. If an ISP starts messing around with traffic, it needs to tell everyone how it’s doing that, so that people can decide whether or not that interference with their traffic is something they want to put up with. If all of these practices happen in secret, then consumers don’t have the information they need to make a choice among however many competitors they might have to choose from.
A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.
A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.
So the rules prohibit broadband providers from block access to lawful websites. Here, the rules draw a distinction between fixed and mobile broadband services. Fixed broadband providers, like cable, fiber, or DSL, can’t block lawful content, applications, services, or non-harmful devices on their networks.
Wireless broadband providers, like cell phone companies, are prohibited from blocking websites, but their other restrictions are narrower—they are allowed to block applications as long as those applications do not compete with their own phone or videophone services.
The benefit of these rules is pretty clear. They ensure that broadband providers can’t just prevent users from getting to competitors’ websites, and that fixed providers can’t require their customers to use only their sites, services, or devices.
Notice, though, the sharp distinction between fixed and mobile broadband providers. The rules give wireless providers a lot more leeway to block content (they’re only prevented from blocking “websites”), and allows providers to block apps, devices, and services, as long as they’re not doing so in order to shut down competition for their own phone services. This distinction is one of the reasons many people felt that the FCC didn’t go far enough in protecting wireless customers from blocking and discrimination. Even with these rules in place, AT&T still decided to block Apple’s FaceTime video calling app from working on its wireless network late last year.
No Unreasonable Discrimination
A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.
Finally, the rules say that fixed broadband providers (but not mobile providers) can’t “unreasonably discriminate” against traffic. This goes beyond just all-out blocking; this rule prevents, for example, a cable ISP from slowing or otherwise degrading a particular site or service. In other words if Comcast, for example, decided to start making Netflix painfully slow (so people would watch cable TV or Comcast’s on-demand service instead), this rule would allow Netflix to bring a complaint to the FCC even though Netflix was not technically being blocked.
As before, though, there’s a significant difference here between fixed and wireless broadband providers. In fact, the difference is as huge as it can be—this part of the rules only applies to fixed broadband providers. If your cell phone company decides it wants to mess around with your traffic, these rules won’t stop them from doing that.
So that, in a nutshell, is what all the hoopla is about. A short set of rules meant to implement the principles of net neutrality that Michael outlined in his post yesterday. They advance a lot of those principles, but many only partially, because of compromises at the bargaining table. Those various compromises and carveouts were enough to satisfy most of the ISPs involved, but apparently not enough for Verizon, which brought the court challenge that will be heard next Monday. But Verizon can’t get the rules overturned just because it doesn’t like them—they have to make the case that the rules can’t legally be enforced. The arguments they’re trying to use for that purpose, and the FCC’s (and our) responses to them are the subject of Harold’s forthcoming post.