The U.S. Federal Communications Commission voted Thursday to release a controversial proposal to restore net neutrality rules and seek public comment on a number of ways to proceed after a U.S. appeals court threw out the agency’s old rules in January.
The 99-page notice of proposed rulemaking, or NRPM, seeks public comment on Chairman Tom Wheeler’s proposal for rules that would allow so-called “commercially reasonable” network management practices, but it also asks whether the agency should reclassify broadband as a common carrier, utility-type service regulated under Title II of the Telecommunications Act.
People with comments on the net neutrality notice can use the FCC Web form.
Some highlights of the notice:
Selective blocking by broadband providers is a “real threat”
Page 3: “It is important to always remember that the Internet is a collection of networks, not a single network. And that means that each broadband provider can either add to the benefits that the Internet delivers to Americans—by maintaining Internet openness and by extending the reach of broadband networks—or it can threaten those benefits—by restricting its customers from the Internet and preventing edge providers from reaching consumers over robust, fast and continuously improving networks. This is a real threat, not merely a hypothetical concern.”
The overturned 2010 rule allowed reasonable network management
Page 23: “The 2010 no-blocking rule was made expressly subject to ‘reasonable network management.’ ... We tentatively conclude that we should continue the same approach. We seek comment on this conclusion as applied to an enhanced transparency rule, our re-adoption of the no-blocking rule, and the proposal to adopt a ‘commercially reasonable’ standard. How can we ensure that the ability of providers to engage in reasonable network management is not used to circumvent the open Internet protections implemented by our proposed rules?”
Why allow ‘commercially reasonable’ network management?
Pages 40-41: “The D.C. Circuit [Court] vacated the antidiscrimination rule because it found that the rule improperly relegated fixed broadband providers to common carrier status. This violated the statutory ban on common carrier treatment of information service providers because the Commission had classified broadband providers ‘not as providers of ‘telecommunications services’ but instead as providers of ‘information services.
What is ‘commercially reasonable’ traffic management?
Page 42: “Sound public policy requires that Internet openness be the touchstone of a new legal standard. Accordingly, we tentatively conclude that the Commission should adopt a rule requiring broadband providers to use ‘commercially reasonable’ practices in the provision of broadband Internet access service ...
“It would prohibit as commercially unreasonable those broadband providers’ practices that, based on the totality of the circumstances, threaten to harm Internet openness and all that it protects. At the same time, it could permit broadband providers to serve customers and carry traffic on an individually negotiated basis,’without having to hold themselves out to serve all comers indiscriminately on the same or standardized terms’ so long as such conduct is commercially reasonable.”
Should the FCC reclassify broadband as a common carrier service?
Pages 52-54: “We seek comment on whether the Commission should rely on its authority under Title II of the Communications Act ... We know seek further and update comment on whether the Commission should revisit its prior classification decisions and apply Title II to broadband Internet access services (or components thereof). How would such a reclassification approach serve our goal to protect and promote Internet openness? What would be the legal bases [sic] and theories for particular open Internet rules adopted pursuant to such an approach?”
Should the FCC strengthen net neutrality rules for mobile carriers?
Page 23: “The  no-blocking rule applied a different standard to mobile broadband Internet access services, and mobile Internet access service was excluded from the unreasonable discrimination rule. We tentatively conclude that we should maintain the same approach in today’s Notice. We seek comment on this approach ...
“We recognize that there have been significant changes since 2010 in the mobile marketplace, including how mobile providers manage their networks, the increased use of Wi-Fi, and the increased use of mobile devices and applications. We seek comment on whether and, if so, how these changes should lead us to revisit our treatment of mobile broadband service.”
Should the net neutrality rules extend to Internet backbone peering agreements, like the one signed between Netflix and Comcast earlier this year?
Page 22: “The Open Internet Order explained that its rules did not apply beyond ‘the limits of a broadband provider’s control over the transmission of data to or from its broadband customers.’ In other words, the Order applied to a broadband provider’s use of its own network but did not apply the no-blocking or unreasonable discrimination rules to the exchange of traffic between networks ...
“Thus, the Order noted that the rules were not intended ‘to affect existing arrangements for network interconnection, including existing paid peering arrangements.’ We tentatively conclude that we should maintain this approach, but seek comment on whether we should change our conclusion. Some commenters have suggested that we should expand the scope of the open Internet rules to cover issues related to traffic exchange. We seek comment on these suggestions. For example, how can we ensure that a broadband provider would not be able to evade our open Internet rules by engaging in traffic exchange practices that would be outside the scope of the rules as proposed?”