The Federal Communications Commission (“FCC”), by a 3-2 vote, has launched a rulemaking with a goal of finding “the best approach to protecting and promoting Internet openness,” posing the fundamental starting question of “what is the right public policy to ensure that the Internet remains open?” There has been no such policy since the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) struck down key portions of previously-adopted FCC Open Internet Rules in January of this year. The comment period for the new rulemaking will run through September 10, with initial comments on the Commission’s proposal due by July 15. Consistent with providing this extended comment period, the FCC released the text of the Notice of Proposed Rulemaking (“NPRM”) on the same day it was approved at the agency’s May Open Meeting.
The FCC described the NPRM as posing “a broad range of questions to elicit the broadest range of input from everyone impacted by the Internet, from consumers and small businesses to providers and start-ups.” The areas of focus include the following:
Legal Framework For Rules Of The Road – The proposal uses the blueprint based on Section 706 of the Communications Act (“Act”) for “restoring the Open Internet rules” offered by the D.C. Circuit in its January decision. At the same time the Commission will consider and seeks comment on use of Title II of the Act as the basis for legal authority. Finally, the FCC seeks to explore “other available sources of legal authority, including…Title III for wireless services.”
Consumer Choices And Innovator Opportunity – As part of a revived “no blocking” rule, the FCC proposes ensuring that “all who use the Internet can enjoy robust, fast and dynamic Internet access.” This would apply to broadband consumers and innovators and edge providers.
Prevention Of Practices That Can Threaten The Open Internet – The NPRM seeks comment on whether “paid prioritization should be banned outright.” It includes a proposed rebuttable presumption that “exclusive contracts that prioritize services to broadband affiliates are unlawful.” The Notice also seeks input on devising a “rigorous, multi-factor ‘screen’ to analyze whether any conduct hurts consumers, competition” and others under a “commercial reasonableness” legal standard.
Expanded Transparency – The NPRM seeks comment on whether broadband providers should be required to “disclose specific network practices, performance characteristics (e.g., effective upload and download speeds, latency and packet loss) and or terms and conditions of service to end users (e.g., data caps).” Further it tentatively concludes that broadband providers should disclose “meaningful information” about the service, including for example, “tailored disclosures to end users” and “congestion that may adversely impact” the experiences of such users.
Protection Of Consumers, Innovators And Startups – The FCC proposes creation of an ombudsperson “with significant enforcement authority to serve as a watchdog and advocate for start-ups, small businesses and consumers.” It considers permitting “anonymous reporting of violations” to address potential fears by start-ups of “retribution from broadband providers.” Finally, it seeks comment on methods for ensuring that “all parties, especially small businesses and start-ups, have effective access to the Commission’s dispute resolution and enforcement processes.”
Impact On the Digital Divide: Access For All Communities – The Notice seeks to consider “the impact of the proposals on groups who disproportionately use mobile broadband service.” Finally, it seeks information on whether parts of the nation, including rural America and parts of urban America, are being “left behind in the deployment of new broadband networks.”
Copies of the FCC’s News Release, Fact Sheet and the text of the NPRM itself can be found here. Questions regarding the FCC’s action can be directed to any member of the Patton Boggs team listed herein.