1) CDT Offers Recommendations in FCC’s “Open Internet” Proceeding
2) Questioning the FCC’s Assertions of Jurisdiction over the Internet
3) Comments on the Proposed Rules
4) The Road Ahead and the Comcast Appeal
(1) CDT Offers Recommendations in FCC’s “Open Internet” Proceeding
CDT has filed extensive comments on the Federal Communications Commission’s proposed rules to preserve the open Internet. In this major proceeding, the FCC is seeking to develop a policy framework to ensure that the Internet retains the unique structure that enables independent speakers and innovators to provide online content and services to any willing Internet user, without getting permission from any “gatekeeper.” CDT supports the Commission’s efforts to preserve the Internet as an open platform, but the Commission’s proposed rules, especially its assertions of authority to regulate the Internet, require modification to achieve that goal.
The FCC’s proceeding, launched last fall, represents a new phase in the long-running debate over “Internet neutrality.” In general terms, the issue of Internet neutrality concerns whether operators of Internet access networks should be free to favor some Internet traffic over others, or instead should be required to handle traffic in an essentially neutral manner. In 2005, the FCC issued some basic principles in a “policy statement,” saying that broadband providers should not block subscribers’ ability to access the content, applications, or services of their choice. In 2008, the agency held that Comcast had violated these principles by interfering with subscribers’ BitTorrent traffic. But there were still no formal rules.
In October 2009, the FCC issued a Notice of Proposed Rulemaking (NPRM) aimed at developing rules. The NPRM proposed to codify the 2005 principles, plus add new rules requiring broadband Internet access providers to be transparent and nondiscriminatory in their handling of Internet traffic. The proposed rules are relatively brief and high-level; they do not seek to prescribe broadband providers’ behavior in any significant detail and leave the framework’s precise contours to be fleshed out on a case-by-case basis in future adjudications.
The framework set forth in the NPRM is a good start, but CDT believes a number of modifications and clarifications are essential. First, the FCC needs to scale back its assertions of its own authority to regulate the Internet. Doing so will help its rules survive almost certain appellate review, and will also serve as a bulwark against future broad regulation of the Internet. Second, the FCC needs to revise its rules and provide more guidance in explanatory text on nondiscrimination, transparency, and the definition of key terms such as “reasonable network management” and “managed and specialized services.”
CDT comments 
FCC’s NPRM 
(2) Questioning the FCC’s Assertions of Jurisdiction over the Internet
CDT argues in its comments that the FCC must scale back its assertions of its “jurisdiction” to act in this area. To effectively preserve the openness of the Internet, any FCC rules must be narrowly tailored to prevent both the rise of private gatekeepers and burdensome governmental regulation. If the FCC asserts broad jurisdiction over the Internet here, this rulemaking could have the effect of paving the way for broader future regulation of the Internet generally. Although the current FCC appears to be respectful of openness and innovation on the Internet, future FCCs may not be.
Unfortunately, the NPRM’s theory of jurisdiction is sweepingly broad. The FCC purports to assert authority based on statutes expressing Internet policy at a very general level – a claim that would seem to imply general agency regulatory authority over the Internet. Most egregiously, the Commission relies on 47 U.S.C. § 230, the cornerstone of deregulation of Internet services. The entire purpose of Section 230 was to remove legal and regulatory threats that were inhibiting development of the Internet. For the FCC to interpret such deregulatory intent as a grant of regulatory authority is to turn Section 230 completely on its head. Broad regulatory authority over Internet matters would raise serious constitutional issues as well.
The FCC’s unbounded and shaky assertions of jurisdiction are likely not to survive appeal.
CDT’s comments suggest a different legal basis for FCC authority to issue its proposed rules – a basis that is appropriately narrow. Specifically, CDT recommends that the FCC base its actions here on its authority under Title I of the Communications Act to regulate transmissions by wire or radio. In setting forth this jurisdictional basis, the Commission should expressly state that it understands this authority to extend only to the provision of transmission functions – broadband Internet access service – and not to Internet matters generally. This basis for jurisdiction finds support in prior cases and was expressly cited by the Supreme Court in its Brand X decision upholding the FCC’s decision to remove broadband Internet access services from Title II common carriage regulation: “the Commission remains free to impose special regulatory duties on facilities-based ISPs under its Title I ancillary jurisdiction.” As a possible alternative, the FCC could consider returning broadband Internet access service to be regulated as a telecommunications service under Title II of the Communications Act, while forbearing from rate regulation and other unneeded aspects of the Title II regime.
(3) Comments on the Proposed Rules
CDT’s comments offer a number of specific recommendations for modifying the proposed rules and providing further agency guidance on how those rules will be interpreted.
The NPRM describes the non-discrimination rule as barring carriers from charging providers of online content, applications, or services for enhanced delivery to subscribers. But the FCC should make clear that the rule would also cover discrimination that is not motivated by direct payment and discrimination that takes the form of targeting selected traffic for degraded treatment. Perhaps most importantly, the FCC should clarify that the nondiscrimination rule would still allow beneficial activities that occur at the outer boundary or edge of a broadband provider’s network, such as caching or interconnection. Such tactics provide improved access to subscribers but do not cause any traffic to “cut in line” and degrade delivery of other traffic. To avoid affecting such activities, the nondiscrimination rule should focus exclusively on discrimination in the routing of communications across the broadband provider’s network.
CDT’s comments also recommend that the Commission declare at the outset that two other types of practices will not be considered discriminatory. First, providers should be free to devise subscription plans and congestion management strategies that focus on such factors as speed or usage volume. So long as a provider’s actions turn on how much or when individual subscriber’s use the Internet access service, and not what they are using it for, the actions are not discriminatory. Second, as CDT has long argued, there should be no problem with providers’ enabling individual subscribers to designate how their different inbound or outbound traffic streams should be prioritized. Putting the choices in the hands of subscribers eliminates the risk of network operators playing favorites.
The proposed rules, like the 2005 principles, say that “reasonable network management” will be permitted. This is an important part of the overall framework; without it, the rules could interfere with the efforts of broadband providers to ensure the smooth and secure operation of their networks.
The transparency rule, however, should not be subject to a “reasonable network management” exception. The FCC should make clear that network management practices should be disclosed, since they could noticeably affect individual user’s traffic or the performance of particular applications. Indeed, disclosure of network management practices, including reasonable ones, is precisely what a transparency rule is for. The FCC, in its final order, should provide more guidance about what such disclosures should include. In particular, the agency should make clear that disclosures regarding congestion management tactics can and should include significantly more detail than management tactics aimed at security, where exposing too much detail could invite circumvention.
The FCC also should articulate some high-level guiding principles concerning what kinds of practices are likely to be considered reasonable and what kinds are not. An appropriate set of high-level principles would say that reasonable network management practices should be based on general criteria that are applied fairly and evenly, so that the network provider is not selecting which specific content or applications to favor or disfavor. For congestion management in particular, providers should use objective criteria such as volume of bandwidth usage. A key test for reasonableness would be: does this tactic have equal impact on all applications with comparable bandwidth characteristics? Another key principle would be that reasonable tactics should be consistent with the common technical standards on which the Internet’s broad interoperability depends.
In addition, the NPRM’s definition of “reasonable network management” includes actions aimed at preventing unlawful conduct. The definition’s references to preventing unlawful conduct should be deleted. Their inclusion is unnecessary, because the proposed rules apply only to “lawful” transmissions in the first place. Meanwhile, encouraging broadband Internet access providers to take on new network policing functions would entangle the FCC in difficult legal and policy issues. It also would run contrary to the goals of this proceeding, which focus on preserving the Internet’s successful model – a model in which network operators do not exercise centralized supervision or control.
Finally, the NPRM suggests that there should be a category of “managed or specialized services” that broadband providers may offer without regard to the open Internet rules. The NPRM seeks comment on the concept of “managed or specialized services” but does not offer a definition of the term.
CDT agrees that services that are not broadband Internet access should not be subject to the openness rules. Not defining the term “managed or specialized services,” however, carries major risk that the term could be misinterpreted in ways that create gaping loopholes in the open Internet rules. To prevent this, the FCC should provide a definition aimed at ensuring that “managed or specialized services” will not be merely Internet services by another name (minus the openness). Specifically, a definition should make clear that a service will not qualify as a “managed or specialized service” if it is a functional substitute for Internet access service or if it lacks an allocation of bandwidth distinct from Internet traffic. As an additional safeguard, the FCC should require periodic reporting of how providers’ bandwidth allocations for Internet access compare to their allocations for managed or specialized services, and make clear that the agency will be on the lookout for any signs that a provider’s Internet access is being neglected in favor of managed or specialized services.
CDT’s comments contain specific recommendations for how the text of the proposed rules may be modified to address the concerns CDT raises.
(4) The Road Ahead and the Comcast Appeal
The FCC received more than 1,000 long-form comments on the proposed rules, as well as more than 120,000 shorter comments. The next step in the FCC’s rulemaking process is for parties to submit reply comments, which are due in early March. There is no specific timetable for final FCC action.
Meanwhile, the federal Court of Appeals for the D.C. Circuit is considering a legal challenge brought by Comcast, which argues that the FCC lacked authority to issue its 2008 ruling on the Comcast-BitTorrent affair. The case centers on many of the same jurisdictional questions outlined above, and may well be ruled on in the next few months. The recent oral argument in the case suggests that the court is highly skeptical of the FCC’s position.
A ruling against the FCC could force the agency to reframe its assertion of legal authority in the openness rulemaking, or could cast doubt on the agency’s authority to issue rules in this area at all. Depending on the rationale, a decision could lead to an effort by the FCC to reclassify broadband Internet access services as “common-carrier” services subject to Title II of the Communications Act, or an effort in Congress to grant the agency new authority.
In any event, the FCC’s proposed rules have put the issue of Internet neutrality back on the front burner, and it is likely to remain a central issue in telecommunications policy for some time to come. CDT plans to review the detailed comments submitted to the FCC, refine our analysis, and work with the FCC and other interested parties toward the vital goal of keeping the Internet open to all speakers and innovators.