FCC Guidance on New Open Internet Rules

The Open Internet Order was published in the Federal Register establishing the effective date of the new Net Neutrality rules, which is June 12, 2015, except for those rules that adopt new information collections and still require additional OMB approval (i.e., the new enhanced transparency rules).

FCC Guidance on New Open Internet Rules

The FCC uses Section 706 and portions of Titles II and III to apply Open Internet rules equally to fixed and mobile broadband Internet access service (BIAS) providers.  The new rules will apply regardless if the provider operates on licensed or unlicensed spectrum, or leases or owns the facilities.

The primary “bright line” rules are as following:

  • No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.
    • Identical to 2010 rule struck down by Verizon, except the new regulation applies equally to both mobile and fixed BIAS providers.
    • Reasonable network management exception applies.
  • No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
    • Does not apply: (1) to unlawful content and (2) where Internet connection slowed due to choice of end user (i.e. data plan with tiered speeds.)
    • Reasonable network management exception applies.
  • No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates.
    • Ban applies to technical prioritization arrangements that favor content of an affiliated party.
    • Potential waiver for significant public interest benefit.
  • New Transparency Rules: in addition to the current transparency rules, BIAS providers must now also disclose promotional rates, fees, and surcharges and data caps; as well as network performance as measured by packet loss; and notice of any network management practices that can affect service.
    • Small Provider Exemption: the Commission adopts a temporary exemption from transparency rule enhancements for fixed and mobile providers with 100,000 or fewer broadband subscribers.  These providers must still abide by the 2010 transparency rules.  The Consumer & Governmental Affairs Bureau will decide whether to make the exemption permanent by the end of the year 2015.
    • Voluntary Safe Harbor: providers may enter a “safe harbor” process to become familiar with the nature of new disclosure requirements.

The FCC also prohibits, on a case-by-case basis, unreasonable interference or unreasonable disadvantage. However, the reasonable management exception applies to this standard.  This exception allows broadband providers to manage the technical and engineering aspects of their networks. When evaluating reasonable network management, the Commission accounts for the unique technical challenges presented by varying technologies.

If you have any questions regarding the Open Internet Order, please feel free to contact the TLP Team.

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