FCC Proposes Net Neutrality Rules

Practical Law Legal Update 7-568-4390 (Approx. 3 pages)

FCC Proposes Net Neutrality Rules

by Practical Law Intellectual Property & Technology

Published on 19 May 2014 • USA (National/Federal)

The FCC issued a Notice of Proposed Rulemaking seeking public comment on its proposal to regulate the internet under either section 706 of the Telecommunications Act of 1996 or Title II of the Communications Act.

On May 15, 2014 the FCC issued a Notice of Proposed Rulemaking seeking public comment on its proposed regulation of the internet under either section 706 of the Telecommunications Act of 1996 or Title II of the Communications Act, including the benefits of one approach over the other. The open internet rules the FCC previously enacted in 2010 ("Open Internet Order") were partially vacated by the US Court of Appeals for the District of Columbia (Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014)). The Notice is a response to that decision and an attempt to adopt enforceable rules consistent with the Verizon decision.

Through the Notice, the proposed rules:

Retain the definitions and scope of the 2010 Open Internet Order, which governed broadband internet access service providers, but not services like enterprise services, internet traffic exchange and specialized services.
Enhance the existing transparency rule, upheld by the DC Circuit, by providing consumers, edge providers and the FCC with tailored disclosures, including information on the nature of congestion that impacts consumers' use of online services and timely notice of new practices.
Adopt the text of the no-blocking rule from the 2010 Open Internet Order, with a revised rationale, to ensure that all internet users can enjoy robust, fast and dynamic internet access.
Where conduct would otherwise be permissible under the no-blocking rule, include a separate rule that requires broadband providers to adhere to an enforceable legal standard of commercially reasonable practices.

Further, through the Notice, the FCC:

Tentatively concludes that priority service offered exclusively by a broadband provider to an affiliate should be considered illegal until proven otherwise.
Asks how to devise a rigorous, multi-factor screen to analyze whether particular conduct hurts consumers, competition, free expression and civic engagement, and other criteria under the "commercial reasonableness" standard.
Proposes to rely on section 706 of the Telecommunications Act of 1996 as the source of authority for the proposed rules
Proposes a multi-faceted dispute resolution mechanism to provide effective access for end users, edge providers and broadband network providers and the creation of an ombudsperson to act as a watchdog on behalf of consumers, start-ups and small businesses.

Comments may be filed electronically here or by paper until July 15, 2014, for initial comments, and until September 10, 2014, for reply comments.

Update: On March 12, 2015, the FCC released the full and final text of the Open Internet Order. The Order can be found on the FCC website.

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