FCC Will Maintain And Enhance Broadband Transparency - Agency Also Will Reinstate Internet No-Blocking Rules

by Stinson Leonard Street

On May 15, 2014, the Federal Communications Commission announced a Notice of Proposed Rulemaking in its Open Internet proceeding. The Notice was issued in response to the recent federal court ruling in Verizon v. FCC which upheld the FCC rule requiring transparency/disclosure in broadband provider network management practices, but overturned the agency's rules prohibiting the blocking of traffic and discrimination by broadband providers.

The FCC is proposing to maintain and enhance the transparency rule, reinstate its internet no-blocking rules subject to the proviso that individualized negotiations are permitted, and replace the non-discrimination rule with a more flexible approach which prohibits only commercially unreasonable practices. The proposed rules will directly impact broadband service providers, edge content providers and retail consumers alike. The rules would allow broadband service providers the discretion to charge for prioritized access to their networks and thereby potentially raising the cost of the services provided by some edge providers and limiting the access of others to the market. On the other hand, the rules would also possibly subject broadband service providers to common carrier type regulation thereby limiting their overall flexibility and discouraging infrastructure investment. Comments are due on July 15, 2014 and Reply Comments are due on September 10, 2014.

New Rules

The FCC’s new rules will:

  • Retain the definitions and scope of the 2010 rules, which governed broadband Internet access service providers, but not services like enterprise services, Internet traffic exchange and specialized services.
  • Enhance the existing transparency rule, which was upheld by the D.C. Circuit in the Verizon case. The proposed enhancements would provide consumers, edge providers, and the Commission with tailored disclosures, including information on the nature of congestion that impacts consumers’ use of online services and timely notice of new practices.
  • Ensure that all who use the internet can enjoy robust, fast and dynamic internet access, as part of the revived “no-blocking” rule.
  • Confirm that priority service offered exclusively by a broadband provider to an affiliate should be considered illegal until proven otherwise.
  • Ask how to devise a rigorous, multi-factor “screen” to analyze whether any conduct hurts consumers, competition, free expression and civic engagement, and other criteria under a legal standard termed “commercial reasonableness.”
  • Ask a series of detailed questions about what legal authority provides the most effective means of keeping the Internet open: Section 706 or Title II.
  • Propose a multi-faceted process to promptly resolve and head off disputes, including an ombudsperson to act as a watchdog on behalf of consumers and start-ups and small businesses.

The FCC has asked a series of complex questions with regard to each proposal. For example, with regard to its tentative decision to not revise the scope of its Open Internet Rules, the FCC asks whether it should continue to exclude enterprise and specialized services from coverage under the rules.

Similarly, in an effort to enhance the current transparency rule (which requires effective disclosure of network practices, performance and terms of service), the FCC seeks comment on issues relating to how the rule can be enhanced; making the content and form of disclosure more accessible and understandable; fuller disclosure of network practices, e.g. packet loss, latency, etc.; methods of disclosure; transparency to edge providers; transparency to the Internet Community and the Commission; and applicability to mobile broadband.

With regard to the no-blocking rule, the FCC indicates that it believes that as long as individualized bargaining is permitted, it can safely reinstate the rules prohibiting fixed broadband providers from blocking lawful content, applications, services or non-harmful devices, and mobile broadband providers from blocking access to lawful websites or competitive applications. Consequently, the Commission seeks input on related matters such as how to establish a minimum level of access which would still allow broadband providers sufficient flexibility to negotiate individualized terms and how its no-blocking rules should apply to mobile broadband and devices. In the alternative, the Commission seeks comment on whether it should adopt a no-blocking rule which prohibits broadband providers from entering into priority agreements with edge providers.

In addition to seeking comment on the no-blocking rule, the FCC also seeks comment on its separate proposal to adopt a rule (based on its authority under Section 706 of the Communications Act) requiring broadband providers to use only commercially reasonable practices. Under this proposal, the FCC, when trying to determine if the conduct at issue was commercially reasonable, would act on a case-by-case basis considering the totality of the circumstances. The Commission seeks input on alternative legal standards which it might consider as well as the factors which should guide its application of a general legal standard (e.g. impact on competition, customers and speech and civic engagement; technical characteristics; good faith negotiation; industry practice and safe harbors).

Finally the Commission seeks input on several critical legal issues. It asks whether it has authority under Section 706. It also seeks comment on whether the agency should rely on its common carrier authority under Title II of the Communications Act, including whether it should revisit its classification of broadband Internet access service as an information service, and whether it should separately identify and classify broadband provider service to edge providers as a telecommunications service. In either case, the Commission would retain the ability to forbear from regulation as appropriate.

Impact of the New Rules

The Commission's proposals are controversial. Some argue that the majority has gone too far and others that it has not gone far enough. Moreover, the FCC's Open Internet rules have already been overturned twice by the D.C. Circuit and it is far from clear that the result would be any different in this instance. Although this is one of FCC Chairman Wheeler's signature undertakings, it can be predicted, based on past experience, that there will be substantive modifications to any proposed Open Internet regulations before they are finally adopted.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Stinson Leonard Street | Attorney Advertising

Written by:

Stinson Leonard Street

Stinson Leonard Street on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.