Cable and Telecommunications News from Mendoza Law Office, LLC

On October 22, 2009, the FCC began a new rule making proceeding on "net neutrality." The FCC has characterized the proceeding as the "next chapter of a longstanding effort to preserve the free and open Internet." However, there are questions about whether the premise for such rules is valid - that the openness of the Internet as it exists today, relatively free of government regulation, has been compromised or is threatened. Critics argue that government regulation designed to preserve the openness of the internet could become a self-fulfilling prophecy which yields the result the FCC says it is trying prevent.

As part of the initial rule making document seeking input on proposed rules, the FCC took the unusual step of actually publishing draft rules and seeking comment on those proposed rules. The proposed rules build off the four principles set forth in the FCC's Internet Policy Statement issued in 2005. The FCC states in its Notice of Proposed Rule Making ("Notice") that it intends to codify those four principles at their current level of generality, and codify two new principles. All of the proposed rules would be subject to "reasonable network management" practices. Moreover, the FCC asks for comment on whether it should carve an exception to the proposed rules for "managed" or "specialized" services, which it preliminarily defines as IP-based services provided over the same networks used for providing broadband internet access. Specifically mentioned examples of "managed" or "specialized" services include AT&T's "U-Verse" IP-based video service, telemedicine, distance learning, and smart electric grid technology.

The six principles that would be codified under the FCC's rules are:

1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user's choice over the Internet.

2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user's choice.

3. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the user's choice of lawful devices that do not harm the network.

4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user's entitlement to competition among network providers, application providers, service providers, and content providers.

5. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.

6. Subject to reasonable network management, a provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this part.

On the one hand, the FCC states in its Notice that the above six principles would apply to all platforms of broadband internet access, including mobile wireless broadband services. However, the FCC also indicates that it may be willing to phase in, create exceptions to, or provide exemptions from the application of the new rules with respect to mobile wireless services.

The FCC's proposed rules would also define "reasonable network management" as:

(a) reasonable practices employed by a provider of broadband Internet access service to (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (ii) address traffic that is unwanted by users or harmful; (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content; and (b) other reasonable network management practices.

Comments on the proposed rules are due January 14, 2009. Replies are due March 5, 2009.