FCC Releases Text of Approved Net Neutrality Order

LOS ANGELES—The FCC yesterday released the text of the new net neutrality rules that passed in a partisan 3-2 vote on Februiary 26. To no one's surprise, reactions to the actual 400-page Open Internet Order have been as partisan as they were before anyone even had a chance read it. Indeed, statements by the five Commissioners issued along with the Order exemplify the chasm of perception surrounding the FCC's actions: the Democrats who voted for it adopted a celebratory tone that positioned the victory as a win for the people; the Republicans who opposed it sounded a dire warning about what the rules portent should they not be struck down in the inevitable legal challenges.  Similar extremes can be seen in the headlines. "FCC's Net-Neutrality Order Is Missing One Important Element: Facts," reads the one by Forbes staff writer Daniel Fisher. "Through 313 dense pages of regulations and explanations, the FCC never explains why it needs to pull a 180-degree shift in how it oversees the Internet, from treating it as an 'information service' exempt from utility-style regulation, to a 'telecommunications service' falling under the 1934 law written to control telephone monopolies," he writes. Over at the Electronic Frontier Foundation, however, the headline proclaims, "Today’s Net Neutrality Order is a Win, With a Few Blemishes." That balanced assessment is continued inside by Kit Walsh, who explains, "The FCC generally adopted a positive approach, resting its new rules on the proper legal authority, creating some bright-line protections, and forbearing from most of the provisions that were unnecessary to protecting net neutrality. Nonetheless, we remain concerned about certain elements of the order." Those elements include: * Case-By-Case Evaluation of Reasonableness is Expensive and Leads to Uncertainty * ISPs Should Not Be Allowed to Discriminate Against Content They Deem “Unlawful” Without a Court Order * What About Zero Rating? Though the Order will make interesting reading for anyone interested in the future of the internet, one section that may be of particular interest to anyone working with digital media is the section labeled "Transfers of Unlawful Content and Unlawful Transfers of Content." It reads: "In the NPRM (notice of proposed rulemaking), we tentatively concluded that we should retain the definition of reasonable network management we previously adopted, which does not include preventing transfer of unlawful content or the unlawful transfer of content as a reasonable practice. We affirm this tentative conclusion and re-state that open Internet rules do not prohibit broadband providers from making reasonable efforts to address the transfer of unlawful content or unlawful transfers of content to ensure that open Internet rules are not used as a shield to enable unlawful activity or to deter prompt action against such activity. "For example, the no-blocking rule should not be invoked to protect copyright infringement, which has adverse consequences for the economy, nor should it protect child pornography.  We reiterate that our rules do not alter the copyright laws and are not intended to prohibit or discourage voluntary practices undertaken to address or mitigate the occurrence of copyright infringement. After consideration of the record, we retain this rule, which is applicable to both fixed and mobile broadband providers engaged in broadband Internet access service and reads as follows: "Nothing in this part prohibits reasonable efforts by a provider of broadband Internet access service to address copyright infringement or other unlawful activity. "Some commenters contend that this rule promotes the widespread use of intrusive packet inspection technologies by broadband providers to filter objectionable content and that such monitoring poses a threat to customers’ privacy rights. Certainly, many broadband providers have the technical tools to conduct deep packet inspection of unencrypted traffic on their networks, and consumer privacy is a paramount concern in the Internet age.  Nevertheless, we believe that broadband monitoring concerns are adequately addressed by the rules we adopt today, so we decline to alter this provision. This rule is limited to protecting 'reasonable efforts . . . to address copyright infringement or other unlawful activity.' We retain the discretion to evaluate the reasonableness of broadband providers’ practices under this rule on a case-by-case basis.  Consumers also have many tools at their disposal to protect their privacy against deep packet inspection—including SSL encryption, virtual private networks, and routing methods like TOR.   Further, the complaint processes we adopt today add to these technical methods and advance consumer interests in this area." We have also plucked out Defnitions contained in the Order, which always make for interesting reading: Broadband Internet access service: A mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence, or that is used to evade the protections set forth in this Part.Edge provider: Any individual or entity that provides any content, application, or service over the Internet, and any individual or entity that provides a device used for accessing any content, application, or service over the Internet. End user: Any individual or entity that uses a broadband Internet access service. Fixed broadband Internet access service. A broadband Internet access service that serves end users primarily at fixed endpoints using stationary equipment. Fixed broadband Internet access service includes fixed wireless services (including fixed unlicensed wireless services), and fixed satellite services.Mobile broadband Internet access service: A broadband Internet access service that serves end users primarily using mobile stations. Reasonable network management: A network management practice is a practice that has a primarily technical network management justification, but does not include other business practices. A network management practice is reasonable if it is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.