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About the Open Internet NPRM
What Is the Open Internet, and What Does the FCC Have To Do With It?
The "open Internet" is the Internet as we know it. It’s "open" because it uses free, publicly available standards that anyone can access and build to, and because it treats all traffic that flows across the network in roughly the same way. This means an innovator in a garage or a student in a dorm room can easily invent and launch a new online service, and that content from a small business or a blogger can reach customers and audiences as easily as content from a multinational corporation or a major newspaper. Once you’re online, you don’t have to ask permission or pay tolls to broadband providers to reach others on the network. If you develop an innovative new website, you don’t have to get permission to share it with the world. Many believe that this freedom to communicate and innovate without permission is a big cause of the Internet’s remarkable success.
But the Internet’s openness appears to face some emerging challenges, such as incidents where broadband providers have restricted the applications their customers can use over their Internet connections, a lack of transparency about how consumers’ Internet service will function, and congestion on the network.
In light of these emerging challenges and uncertainties about existing policies, last month the FCC began a process to seek public input on draft rules of the road that would clarify and supplement current FCC policies to protect the open Internet. These basic, high-level rules would ensure that broadband providers don’t block consumers from accessing the content and applications of their choice, don’t deprive consumers of their entitlement to competition, and don’t discriminate against or in favor of traffic, and they would require broadband providers to disclose basic information about broadband service. 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 providers to engage in reasonable network management, including but not limited to efforts to block spam and ensure that heavy users don’t crowd out other users.
To launch the rulemaking process, the Commission adopted a Notice of Proposed Rulemaking, often referred to as the "open Internet NPRM." As the FCC always does when it considers new rules, it has asked the public for input, and anyone may submit comments over a period of several months. After the deadline for comments has passed and the FCC has reviewed the public’s input, the FCC’s five Commissioners may vote to adopt rules on these issues.
Summary of the Open Internet Notice of Proposed Rulemaking
On October 22, 2009, the Federal Communications Commission (FCC) voted to seek public input on draft rules that would codify and supplement existing principles to safeguard the Internet’s openness. This process is intended to secure and protect the many economic and social benefits of the open Internet by preventing anyone from restricting the free flow of lawful content and applications online.
The open Internet NPRM provides a starting point for a many-month conversation about the open Internet, by framing the key issues and asking the public for comment on proposed draft rules. At the end of this process, the Commission will evaluate all comments it receives and, based on those comments and its own analysis, may choose to issue binding rules to preserve the free and open Internet. Below is a summary of the proposals and key questions raised in the NPRM.
The History of the Open Internet
The NPRM begins by reviewing the history and key features of the open Internet. One of the most important features of the Internet is its openness: It uses free, publicly available standards that anyone can access and build to, and it treats all traffic that flows across the network in roughly the same way. This design has made it possible for anyone, anywhere to easily launch innovative applications and services, which have revolutionized the way people communicate, participate, create, and do business – think of email, blogs, streaming video, and online shopping.
In 2005, on the same day it re-classified DSL service and effectively reduced the regulatory obligations of DSL providers, the FCC announced its unanimous view that consumers are entitled to certain rights and expectations with respect to their broadband service, including the right to:
- access the lawful Internet content of their choice;
- run applications and use services of their choice, subject to the needs of law enforcement;
- connect their choice of legal devices that do not harm the network; and
- competition among network providers, application and service providers, and content providers.
Four of the draft rules in the open Internet NPRM would codify these principles.
The Need for Commission Action
The NPRM next explains that the FCC’s goals are to promote innovation and investment; promote competition for Internet access and content, applications, and services; address the needs of law enforcement and public safety; and protect users’ interests in consumer protection, the development of tools that empower users, democratic discourse and participation. An additional key rationale for acting at this time is to provide greater predictability for all stakeholders regarding federal policy in this area.
Codifying the Existing Four Internet Principles
The NPRM proposes that the FCC codify the four principles that it adopted unanimously in 2005. It suggests codifying the principles at their current level of generality to
"help establish clear requirements while giving [the Commission] the flexibility to consider particular circumstances case by case. In that way, [the Commission] will be able to generate over time a body of law that develops as technology and the marketplace evolve."
The first proposed rule ensures that users can express themselves freely on the Internet and receive the content of their choice. The second proposed rule protects the ability of users to run lawful applications and use lawful services that they choose. The third proposed rule allows users to choose the devices they use on the Internet, as long as the devices don’t harm the network. The fourth proposed rule protects competition among network providers, application providers, service providers, and content providers.
All of these draft rules would be subject to "reasonable network management," a term discussed below and in the NPRM.
Among other questions, the Commission asks the public to comment on whether codifying these principles will "help preserve the Internet’s status as ‘a forum for a true diversity of political discourse’ and an open platform for publication of information."
Codifying a Principle of Nondiscrimination
The fifth proposed rule recognizes that the ability of network operators to discriminate against or in favor of traffic may reduce the overall benefits of the Internet, for example by making it more difficult for innovators to develop and deploy new offerings online, but that service providers must be able to manage their networks in ways that benefit consumers.
To address these concerns, the NPRM offers for discussion a draft rule providing that:
"Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner."
The NPRM explains that the use of the term "nondiscriminatory" means that a broadband provider may not (a) favor or disfavor lawful content, applications, or services accessed by their subscribers, or (b) charge a content, application, or service provider for enhanced or prioritized access to users. However, the proposed rule would not prevent a broadband provider from charging its own subscribers different prices for different services, such as a higher or lower speed broadband connection.
The NPRM also notes that "reasonable network management" is meant to give "broadband Internet access service providers substantial flexibility to take reasonable measures to manage their networks." The draft rules make clear that reasonable network management would ensure that broadband providers can take reasonable action to manage congestion on their networks; address traffic that is harmful to the network or 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.
The Commission also seeks comment on how to define and what policies may be appropriate for "managed" or "specialized" services – services other than Internet access that are provided over the same infrastructure used to provide broadband Internet access service.
Codifying a Principle of Transparency
The sixth rule proposed by the NPRM would require broadband providers to disclose network management practices, based on the principle that "sunlight is the best disinfectant." Specifically, it would require that:
"Subject to reasonable network management, a provider of broadband Internet access service must 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 part."
The NPRM notes that broadband providers in the past have failed to disclose information about broadband service that consumers would likely find relevant, and asks for input on what information should be disclosed to enable consumers to make informed purchasing and usage decisions. The NPRM also asks for feedback on what information should be disclosed to content, application, and service providers to enable them to develop and deploy new online offerings. In addition, the NPRM seeks comment on how disclosure requirements can be tailored so as not to unduly burden broadband providers.
Emergency Communications, Law Enforcement, Public Safety, and Homeland and National Security
The NPRM makes clear that 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 homeland security authorities, consistent with applicable law.
Applicability of the Principles to Different Broadband Technology Platforms
The NPRM proposes that the draft rules apply to all platforms for broadband Internet access, but
"acknowledge[s] that technological, market structure, consumer usage, and historical regulatory differences between different Internet access platforms may justify differences in how we apply the Internet openness principles to advance the goals of innovation, investment, research and development, competition, and consumer choice."
The NPRM asks for comments on how the proposed rules should apply to mobile broadband Internet access, particularly with respect to the attachment of devices to the network and discrimination as to content, applications, and services.
Enforcement
The NPRM proposes that the draft principles be enforced on a case-by-case basis by the FCC, and the Commission seeks comments on the enforcement procedures that it should follow.
Technical Advisory Process
Recognizing the complex technical questions raised by the proposed rules, the NPRM notes that the Chief of the FCC’s Office of Engineering and Technology will create "an inclusive, open, and transparent process for obtaining the best technical advice and information from a broad range of engineers."
Comment Filing Procedures
Interested members of the public may file comments regarding the NPRM by January 14, 2010, and may file reply comments by April 8, 2010. Anyone who wishes to file a comment may do so by (1) using the Commission's Electronic Comment Filing System (ECFS), (2) using the Federal Government’s eRulemaking Portal, (3) filing paper copies, or (4) posting comments and ideas on the OpenInternet blog or on the FCC's IdeaScale space.
Download the NPRM
The above summary of the NPRM gives only a glimpse into the complex issues the Commission is considering in the open Internet rulemaking process. We encourage interested members of the public to read the actual NPRM, and to submit comments on this website or elsewhere.
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