Excerpts and Commentary Regarding the FCC's Net Neutrality Notice of Inquiry

What follow are key passages from federal documents and FCC commissioners that help clarify what kind of comments are needed from you to be helpful to the FCC. The FCC is chaired by Kevin Martin, an appointee of President Bush, and the following documents are a product of the consensus view of the FCC. There is dissent with respect to aspects of these documents that comes from Democratic commissioners on the FCC, notably commissioners Adelstein and Copps. To better acquaint you with the range of opinion on the issues, some of their comments will also be included.

FCC Policy Statement 9/23/2005 Explanation of the FCC's position on regulating the Internet.

EXCERPTS TAKEN FROM: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf

As Congress has noted, “[t]he rapidly developing array of Internet . . . services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.” The Internet also represents “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” In addition, the Internet plays an important role in the economy, as an engine for productivity growth and cost savings.5
Commentary: The FCC's authority to regulate network neutrality derives from the policy objectives of Congress. The phrase above indicates what the FCC sees as the broad interests Congress has in the Internet, such as advancing the Internet as a benefit to the economy and a contributor to political discourse, intellectual activity, and culture.
In section 230(b) of the Communications Act of 1934, as amended (Communications Act or Act), Congress describes its national Internet policy. Specifically, Congress states that it is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet” and “to promote the continued development of the Internet.” In section 706(a) of the Act, Congress charges the Commission with “encourag[ing] the deployment on a reasonable and timely basis of advanced telecommunications capability” – broadband – “to all Americans.”
Commentary: Here, the FCC policy statement outlines what it sees as Congress's Internet policy, and hence the basis for any FCC rules regarding such matters as network neutrality. As defined here, the FCC's role seems to focus on the economics of the Internet.
The Communications Act charges the Commission with “regulating interstate and foreign commerce in communication by wire and radio.” The Communications Act regulates telecommunications carriers, as common carriers, under Title II. Information service providers, “by contrast, are not subject to mandatory common-carrier regulation under Title II.”
Commentary: Common carrier rules require the FCC to regulate phone companies to treat all communication by phone neutrally--giving no special advantage to some communications. The FCC states that it does not have the authority under common carrier rules to apply this kind of neutrality to the internet.
The Commission, however, “has jurisdiction to impose additional regulatory obligations under its Title I ancillary jurisdiction to regulate interstate and foreign communications.” As a result, the Commission has jurisdiction necessary to ensure that providers of telecommunications for Internet access or Internet Protocol-enabled (IP-enabled) services are operated in a neutral manner.
Commentary: The FCC states here that its authority to regulate the Internet under Title I ancillary jurisdiction, not common carrier rules. An argument against net neutrality might challenge whether the FCC has authority to impose neutrality on Internet providers according to Title I. An argument for net neutrality might assert that the FCC is *required* by Title I or Title II to impose net neutrality. The FCC has not in recent years acknowledged that it is under any such requirement with respect to Internet providers as it is with respect to "telecommunication carriers" such as telephone companies. This intepretation by the FCC was supported in the June 2005 Supreme Court's decision in NCTA v. Brand X, which allowed the FCC to classify broadband access as "information services" rather than as telecommunications carriers.
The Commission adopts the following principles: To encourage broadband deployment and preserve and promote the open and interconnected nature of the public Internet, ...
  • ...consumers are entitled to access the lawful Internet content of their choice.
  • ...consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement.
  • ...consumers are entitled to connect their choice of legal devices that do not harm the network.13
  • ...consumers are entitled to competition among network providers, application and service providers, and content providers.14
Commentary: These are the FCC's "net neutrality principles"--the principles under which it will decide whether and how to regulate network neutrality. Arguments for or against network neutrality will be most effective if the person making these arguments can show how they are related to these neutrality principles. Alternatively, an effective argument might suggest that these principles be expanded to include other kinds of considerations in line with Congress's general objectives. Any argument that the FCC should take additional matters into account must either explain why these matters follow from the above principles or address why the FCC should change or add to its basic neutrality principles. Search for "fcc net neutrality principles" to learn more about what different commentators have said regarding these principles.

NOTICE OF INQUIRY In the Matter of Broadband Industry Practices, WC Docket No. 07-52; June 15, 2007

EXCERPTS TAKEN FROM: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-31A1.pdf

Commentary: This is the call for public comments regarding such matters as network neutrality. Your discussion results from this research project are intended to be applied toward this Notice of Inquiry (NOI), consequently comments that specifically address this document are likely to be more useful to the FCC than comments that do not.]
In this Notice of Inquiry, we seek to enhance our understanding of the nature of the market for broadband and related services, whether network platform providers and others favor or disfavor particular content, how consumers are affected by these policies, and whether consumer choice of broadband providers is sufficient to ensure that all such policies ultimately benefit consumers. We ask for specific examples of beneficial or harmful behavior, and we ask whether any regulatory intervention is necessary.
Commentary: The above describes what the FCC is seeking with this NOI. Again, comments that specifically apply to the above needs are better comments.
Since that time [since the time the FCC adopted its network neutrality principles], the Commission has had the occasion to review several providers’ practices. In several proceedings evaluating wireline mergers, the Commission found that no commenter had alleged that the entities engage in packet discrimination or degradation, and that, given conflicting incentives, it was unlikely that the merged companies would do so. Nonetheless, the Commission specifically recognized the applicants’ commitments to act in a manner consistent with the principles set forth in the Policy Statement, and their commitments were incorporated as conditions of their mergers.
Commentary: The above indicates that, in comment processes concerning corporate mergers among Internet providers, no commenter alleged the companies had discriminated against or degraded transmissions of online content. The FCC thinks it unlikely that the companies would do so given their incentives.
This responsibility is guided by the “policy of the United States (under section 1 of the Communications Act) . . . (1) to promote the continued development of the Internet”; “(2) to preserve the vibrant and competitive free market that presently exists for the Internet”; and “(3) to encourage the deployment of technologies which maximize user control over what information is received by . . . [users of] the Internet.”
Commentary: This passage indicates the source of authority in the law that should guide the FCC's regulatory decisions. Arguments that appeal to this source of authority are better arguments.
We next ask whether the Policy Statement should be amended. Do commenters believe that the specific practices described in response to the questions in paragraphs 8 and 9 are helpful or harmful to consumers? In light of the responses to paragraphs 8 and 9, are there specific changes to the Policy Statement that commenters would recommend? We also ask whether we should incorporate a new principle of nondiscrimination. If so, how would “nondiscrimination” be defined, and how would such a principle read? Would it permit any exclusive or preferential arrangements among network platform or access providers and content providers? How would a principle of non-discrimination affect the ability of content and access providers to charge their customers different prices, or to charge them at all?
Commentary: This passage indicates the source of authority in the law that should guide the FCC's regulatory decisions. This is the core passage with respect to net neutrality. The "Policy Statement" referred to in the passage are the FCC's four net neutrality principles. The above asks whether an additional principle of non-discrimination should be added, and how it should read. Good comments from project participants will directly address these FCC concerns. Paragraphs 11, 8, and 9, respectively, are immediately below.
Finally, does the Commission have the legal authority to enforce the Policy Statement in the face of particular market failures or other specific problems? What specific conduct or other factors give rise to any such problems? Does the ever increasing intermodal competition among broadband providers prevent such problems from developing in the first place? If the Commission were to promulgate rules in this area, what would be the challenges in tailoring the rules only to reach any identified market failures or other specific problems, and not to prevent policies that benefit consumers? Would regulations further our mandate to “encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans”?22 Assuming it is not necessary to adopt rules at this time, what market characteristics would justify the adoption of rules?
Commentary: This is perhaps the second most important cluster of questions with respect to net neutrality. These questions raise the issue of how it would be legal for the FCC to enforce the Policy Statement on market failures, when this would be needed, and how it could be done. Advocates of regulation would need to answer these questions, while opponents could seek to point out problems with regulation along the lines above.
Paragraph 8: First, we ask commenters to describe today’s packet management practices. That is, do providers treat different packets in different ways? How16 and why? Are these providers operating consistent with the Policy Statement (the FCC's network neutrality principles? Are there specific examples of packet management practices that commenters consider reasonable or unreasonable? More specifically, are providers engaging in packet management that is helpful or harmful to consumers? For example, during times of congestion, do providers prioritize packets for latency-sensitive applications such as voice calls, video conferencing, live video, or gaming? Do providers prioritize packets for safety- and security-related applications such as health monitoring, home monitoring, and emergency calls? Do providers block packets containing child pornography, spyware, viruses, or spam? Do providers offer parental controls that block packets containing sexually explicit material? Do providers manage packets to improve their network performance, engineering, or security? Do providers deprioritize or block packets for certain content when the providers or their affiliates offer similar content, or do providers prioritize packets containing their own content over packets containing similar content from unaffiliated providers? Do providers deprioritize or block packets containing material that is harmful to their commercial interests, or prioritize packets relating to applications or services in which they have a commercial interest? Are any of these packet management practices in place to implement other legal requirements? Are there other packet management practices of which the Commission should be aware? Commenters should provide specific, verifiable examples with supporting documentation, and should limit their comments to those practices that are technically feasible today.
Commentary: This is an important cluster of questions the FCC would like to see answered in this rulemaking. Comments that address these questions are especially useful to the agency. The questions above may require special knowledge to answer. Who is in a position to answer the above questions?
Paragraph 9: Next, we ask commenters to describe today’s pricing practices for broadband and related services. Do providers charge different prices for different speeds or capacities? Given the greater availability of bandwidth-intensive applications, do providers charge a premium to download a particular amount of content? Do broadband providers charge upstream providers for priority access to end users? Should our policies distinguish between content providers that charge end users for access to content and those that do not? Do providers currently discriminate in the prices they charge to end users and/or upstream providers? Does behavior vary depending on the number of broadband Internet access service providers offering service in a geographic area? With regard to all practices commenters describe in response to the questions in paragraphs 8 and 9, we ask whether providers disclose their practices to their customers, to other providers, to application developers, and others. Do they offer their subscribers the option to purchase extra bandwidth or specialized processing? How have consumers responded to these pricing practices? How have higher speed broadband networks changed the value proposition for consumers? Are the real prices (i.e., price per Mbps) paid by consumers for broadband nevertheless falling?
Commentary: This is an important cluster of questions the FCC would like to see answered in this rulemaking.

FCC LAUNCHES INQUIRY INTO BROADBAND MARKET PRACTICES

EXCERPTS TAKEN FROM: http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-271687A1.pdf

This Notice of Inquiry seeks information on the behavior of broadband market participants, including:
  • How broadband providers are managing Internet traffic on their networks today
  • Whether providers charge different prices for different speeds or capacities of service
  • Whether our policies should distinguish between content providers that charge end users for access to content and those that do not
  • How consumers are affected by these practices
Commentary: This is a summary of what the FCC is trying to learn with the NOTICE OF INQUIRY In the Matter of Broadband Industry Practices, the NOI that is the subject of this research project.

STATEMENT OF FCC COMMISSIONER JONATHAN S. ADELSTEIN; EN BANC HEARING ON BROADBAND NETWORK MANAGEMENT PRACTICES Boston, MA – February 25, 2008

EXCERPTS TAKEN FROM: http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-280441A1.txt

Commentary: Here are a few excerpts from a speech by Democratic FCC commissioner Adelstein to show you dissent within the FCC regarding the positions adopted by the FCC in the earlier documents.

Right now, though, we see a broadband market in which, according to FCC statistics, telephone and cable operators control over 93 percent of the residential market. For many consumers, there is no meaningful choice of providers.

Independent observers, like the Congressional Research Service, have determined that leading broadband providers -- which control the last mile connections to the home -- may have the ability and incentive to discriminate, and to limit the choices available over the Internet. Others, such as Cardozo Law School Professor Susan Crawford, have observed that “all of these providers are competing with the internet in some way - they are all (or are becoming) old media and old telecom companies that want to maintain control over their distribution channels. The internet disrupts this control, and so they are competing with it.”

I believe we must add a new principle to address incentives for anti-competitive discrimination so as to ensure the continued vibrancy of the Internet.

Commentary: Commissioner Adelstein is asserting a need for an additional FCC neutrality principle.

CONCURRING STATEMENT OF COMMISSIONER MICHAEL J. COPPS Re: Broadband Industry Practices, Notice of Inquiry, WC Docket No. 07-52

EXCERPTS TAKEN FROM: http://fjallfoss.fcc.gov/edocs_public/attachmatch/FCC-07-31A3.txt

Commentary: Here are a few excerpts from speeches by Democratic FCC commissioner Copps to show you dissent within the FCC regarding the positions adopted by the FCC in the earlier documents.
We proceed too leisurely here. Rather than strike out and unflinchingly proclaim this agency’s commitment to an open and non-discriminatory Internet, we satisfy ourselves with one tiny, timid step. ...We should be building on what we have already approved and going with at least a Notice of Proposed Rulemaking with a commitment to move to an Order within a time certain.
Commentary: Here, commissioner Copps is stating that he believes the Notice of Inquiry is too small a step toward net neutrality.

REMARKS OF COMMISSIONER MICHAEL J. COPPS PIKE & FISCHER’S BROADBAND POLICY SUMMIT IV; WASHINGTON, DC; JUNE 12, 2008

...AT&T agreed to this principle (of non-discrimination) when it bought BellSouth—and AT&T doesn’t seem any worse for wear—but the commitment expires at the end of the year and it applies to only one company.
Commentary: This appears to be a response to earlier statements, in FCC documents on this Notice of Inquiry, that Internet companies undergoing mergers are voluntarily agreeing to a non-discrimination neutrality principle.

Written Statement Of The Honorable Kevin J. Martin, Chairman, Federal Communications Commission Before the United States Senate Committee on Commerce, Science and Transportation April 22, 2008

EXCERPTS TAKEN FROM: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-281690A1.doc

Commentary: Here are a few excerpts from speeches by Republican FCC Chairman Copps. He outlines the FCC's current approach to addressing net neutrality. Arguments for and against additional neutrality regulation need to take into account what he says here.

In fact, the Supreme Court in its Brand X decision specifically recognized the Commission’s ancillary authority to impose regulations as necessary to protect broadband internet access.

I do not believe any additional regulations are needed at this time.

Finally, the Commission has already taken enforcement action in response to other complaints. In the Madison River complaint, the Commission ordered a telephone company to stop blocking VoIP calls.

I believe that the Commission must remain vigilant in protecting consumers’ access to content on the internet. Thus, it is critically important that the Commission take seriously and respond to complaints that are filed about arbitrary limits on broadband access and potential violations of our principles.

Commentary: Chairman Martin suggests the FCC is already using its net neutrality principles to enforce reasonable rules.

I.FRAMEWORK FOR EVALUATING REASONABLE NETWORK MANAGEMENT COMPLAINTS

Second, the Commission should consider whether the network service provider adequately disclosed its network management practices. A hallmark of whether something is reasonable is whether an operator is willing to disclose fully and exactly what they are doing.

For example, if Internet access is sold as an unlimited service, do consumers understand that if they use too much of it they can still be cut-off?

Finally, the Commission should consider whether the network management technique arbitrarily blocks or degrades a particular application. Is the network management practice selectively identifying particular applications or content for differential treatment? If so, I believe that we should evaluate the practices with heightened scrutiny, with the network operator bearing the burden of demonstrating that the particular practice furthered an important interest, and that it was narrowly tailored to serve that interest.

Such an approach would not mean that any action taken against a particular application would automatically be a violation.

In a manner similar to the way in which restrictions on speech are analyzed, network management solutions would need to further a compelling or at least an important/legitimate interest and would need to be tailored to fit the exact interest.

Commentary: Chairman Martin here outlines the FCC's existing approach to regulating net neutrality. Proponents of neutrality can argue that this approach is sufficient, while opponents need to argue that it is not or that it is not being properly applied.

I.PENDING COMCAST COMPLAINT

Consumers have alleged that certain operators, and specifically Comcast, are blocking and/or degrading consumers’ access to the Internet by distinguishing between applications.

The Commission is still investigating these complaints and we have not yet determined whether the actions violated our principles protecting consumer access to the Internet. However, Comcast appears to have utilized Internet equipment from Sandvine or something similar that is widely known to be a relatively inexpensive, blunt means to reduce peer-to-peer traffic by blocking certain traffic completely. In contrast, more modern equipment can be finely tuned to slow traffic to certain speeds based on various levels of congestion.

Contrary to some claims, it does not appear this network management technique is “content agnostic.”

Contrary to some claims, it does not appear that this technique was used only to occasionally delay traffic at particular nodes suffering from network congestion at that time.

Commentary: Chairman Martin describes above how the FCC is handling a current net neutrality-relevant complaint. The FCC has recently acted to punish Comcast.