Karen Brinkmann, Managing Member

KB@KarenBrinkmann.com

202.365.0325



REGULATORY ALERT


This is a summary of recent developments for clients and friends of Karen Brinkmann PLLC, and should not be considered legal advice.  If you have any questions about this topic, or if you are interested in our analysis of how the information summarized above affects a particular company or industry, please contact one of the authors.


For more information about the authors or Karen Brinkmann PLLC, please visit:   www.karenbrinkmann.com



Broadband Internet Access Providers Should Establish Policies To Comply With

FCC Open Internet Rules

    In December 2010, the Federal Communications Commission (the "FCC” or the “Commission”) adopted an order in its “Net Neutrality” or “Open Internet” rulemaking.  That Order, and the FCC’s new rules, will take effect November 20, 2011.   Broadband Internet access providers covered by the rules should ensure their internal policies and external disclosure comply with these new requirements. 


The FCC’s Open Internet Rules


The FCC adopted three basic Open Internet requirements, not all of which apply to providers of mobile Internet access service:

Transparency:   A person engaged in the provision of broadband Internet access service must publicly disclose accurate information regarding network management practices, performance, and the commercial terms of its broadband Internet access services.  Disclosure must be sufficient for consumers to make informed choices regarding the use of such services and the selection of content.  Disclosure also must be sufficient for content providers, application providers, service providers, device manufacturers, and other “edge” service providers to develop, market and maintain Internet offerings. 

No blocking:  A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, may not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.  And a person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, may not block consumers from accessing lawful websites, subject to reasonable network management; nor may such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.

No unreasonable discrimination:  A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, may not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.

The Commission adopted several limitations on the Open Internet obligations outlined above:


Reasonable Network Management:  A network management practice is reasonable if it is appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.

Compliance with Law Enforcement:  Nothing in the FCC’s rules limits any broadband Internet access service provider’s authority to address the needs of emergency communications or law enforcement, public safety, or national security authorities, consistent with or as permitted by applicable law. Further, nothing in the FCC’s new rules prohibits “reasonable efforts” by a broadband Internet service provider to address copyright infringement or other unlawful activity.

Covered Broadband Internet Access Providers


Service providers are covered by the rules to the extent that they offer mass-market retail services, via wire or radio, providing the capability to transmit data to and receive data from all or substantially all Internet endpoints (but excluding dial-up Internet access service).


Compliance With the Non-Discrimination & No Blocking Rules


The prohibitions against blocking and unreasonable discrimination are consistent with the FCC’s 2005 Internet Policy Statement.  If a provider has not yet adopted policies and adjusted its practices to avoid unlawful blocking of content, applications, services or devices, and to guard against unreasonable traffic discrimination, such measures should be put in place immediately to ensure compliance with the FCC’s rules. 


Flexible Implementation of the Transparency Rule


The FCC requires both fixed and mobile broadband Internet access providers to publicly disclose accurate information regarding their network management practices, performance characteristics, and terms and conditions of services.  Disclosure must be sufficient to allow consumers to make “informed choices” about service providers.


In June 2011, the FCC provided additional guidance on the transparency rule, indicating that the FCC will allow for variation and provider discretion in complying with the transparency requirement.  The Commission also clarified the applicability of its transparency rule in five specific respects:


Point-of-sale disclosure:  The FCC clarified that the Open Internet Order does not compel the distribution of Internet access disclosure materials in hard copy, nor extensive training of sales employees to provide the required disclosure at the point-of-sale.  Disclosure at a point on the provider’s web site, and directing new and prospective customers to the web address, normally will be sufficient.

Service description details:  Broadband Internet access providers are required to accurately describe the network performance characteristics for each broadband Internet access service they offer.  The Commission expects that additional guidance on broadband performance characteristics will be forthcoming.  Until then, the FCC’s report “Measuring Broadband America: A Report on Consumer Wireline Broadband Performance in the U.S.” may be instructive on the performance characteristics that the FCC would expect to see in a company disclosure.

Sufficiency of a single disclosure:  The Commission expects that a single disclosure should be sufficient for both retail consumers and the “edge” providers of applications, services and devices that consumers will use in conjunction with broadband Internet access.  The Commission explained that broadband providers making a disclosure that is detailed enough to allow technologically sophisticated consumers to understand how network management practices work and how those practices affect the end-user experience will not need to make additional disclosures for the benefit of edge service providers.

Security measures may be restricted:  The Commission clarified that companies need not disclose security measures that would put their network security at risk.

List of disclosures in Open Internet Order may be relied upon:  Although the FCC initially declined to adopt a “safe harbor” for transparency, the FCC has clarified that disclosure of all of the information identified in paragraph 56 of its Open Internet Order will suffice for compliance with the transparency rule at this time.  In brief, this includes:  information regarding management of congestion; identifying restrictive or favorable treatment for certain applications; identifying restrictions on device attachments and approval procedures to connect devices; information about end-user and network security; details about expected and actual access speed and latency; information identifying each service’s suitability for real-time applications; the impact of specialized services on last mile capacity; pricing information that covers monthly recurring charges, usage-based fees, and fees for early termination or additional network services; whether and how the provider inspects network traffic; how traffic information is stored, used, and disclosed; and how end-user and edge service provider complaints will be resolved.


Network Management Practices Should Be Targeted To Achieve Legitimate Purposes


The FCC recognized in the Open Internet Order that companies need flexibility to manage their networks to ensure security and optimize performance.  Accordingly, the FCC defined a reasonable network management practice as one that is “appropriate and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.”  The FCC noted that legitimate network management purposes include ensuring network security and integrity, addressing unwanted traffic, and reducing or mitigating network congestion. 


Broadband Internet access providers should be prepared to document and defend their network management practices based on the acceptable purposes listed above, as well as the effect of such practices – and in particular whether the practice is narrowly tailored to achieve a legitimate purpose.  Whether particular practices ultimately prove to be “reasonable” will be determined by the FCC on a case-by-case basis, as challenges arise. Companies may seek guidance from the FCC, in advance, as to whether a particular network management practice is reasonable, but they are not required to do so. 


Broadband Providers Should Evaluate Existing Policies


Broadband Internet access providers should evaluate their existing network management practices and disclosure to determine what additional measures, if any, are necessary to ensure compliance with the Open Internet Order.  Providers should articulate an Internet access policy that tracks the FCC’s rules on transparency, blocking, and non-discrimination.  This policy should be reviewed and approved by the company’s chief technology officer. 


Certain requirements of the FCC’s Open Internet Order may be contained in a provider’s existing Acceptable Use Policy and posted on the company’s website.  In such case, the provider may need only to update its Acceptable Use Policy.  A single policy can suffice for both retail customers and edge service providers.


The FCC Continues To Evaluate Requirements For Open Internet Compliance


There are several ongoing venues in which the FCC continues to refine its Open Internet policies.  The Commission is continuing to evaluate the type of information that broadband Internet access providers should publicly disclose.  The Commission also intends to adopt uniform performance criteria for broadband services.  Broadband Internet access providers should expect that these proceedings ultimately will result in additional Open Internet rules. 



Appeals Pending


A number of appeals have been filed with the federal courts since the effective date of the rules.  Judicial review could take many months.  There is no indication at this time that the effectiveness of the FCC’s rules will be stayed pending resolution of these appeals.




End Notes

Preserving the Open Internet, Broadband Industry Practices, Report and Order, 25 FCC Rcd 17905 (2010) (Open Internet Order).  This effective date is triggered by the Office of Management and Budget’s (OMB) approval of the information collection requirements contained in the rules, and the publication of OMB’s decision in the Federal Register on September 23, 2011.  76 Fed. Reg. 59192 (Sept. 23, 2011).

See Open Internet Order, ¶¶ 43-114.

See id., ¶ 44.

See Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., Policy Statement, 20 FCC Rcd 14986 (2005) (Internet Policy Statement).

The FCC initially warned that no single list of information should be considered a “safe harbor” for any particular provider. See Open Internet Order, ¶ 56.

FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance for Compliance with Open Internet Transparency Rule, Public Notice, DA 11-1148 (June 30, 2011) (Advisory Guidance PN).

See Advisory Guidance PN at 3-4.

See id. at 4.

See http://transition.fcc.gov/cgb/measuringbroadbandreport/Measuring_U.S._-_Main_Report_Full.pdf.

See Advisory Guidance PN at 3, 6-7.

See id. at 8.

See Open Internet Order, ¶ 56.

These provisions generally apply to fixed service providers; the Commission referred wireless broadband Internet access providers to paragraph 98 of the Open Internet Order.

See Advisory Guidance PN at 6.

See Open Internet Order, ¶ 56 for a complete list of the information that makes up this “best approach.”

Open Internet Order, ¶82.

See id.

See Consumer Information and Disclosure, Notice of Inquiry, 24 FCC Rcd 11380 (2009); Comment Sought on Residential Fixed Broadband Services Testing and Measurement Solution, Pleasing Cycle Established, Public Notice, 25 FCC Rcd 3836 (2010); Comment Sought on Measurement of Mobile Broadband Network Performance and Coverage, Public Notice, 25 FCC Rcd 7069 (2010); and Consumer and Governmental Affairs Bureau Seeks Comment On “Need For Speed” Information For Consumers of Broadband Services, Public Notice, 26 FCC Rcd 5847 (2011).

Numerous appeals have already been filed in several different circuits of the Court of Appeals.  Verizon has filed in the DC Circuit; Free Press has filed in the 1st Circuit; Peoples Production House has filed in the 2nd Circuit; Media Mobilizing Project has filed in the 3rd Circuit; Mountain Area Information Network has filed in the 4th Circuit; and Access Humboldt has filed in the 9th Circuit.  The District of Columbia Circuit has been randomly selected to hear the consolidated appeals.


Karen Brinkmann PLLC

www.karenbrinkmann.com