Recrafting Open Internet Rules

On April 11, the Benton Foundation responded to the Federal Communications Commission’s request for public comment on how to preserve an Open Internet in the wake of this year’s ruling by the U.S. Court of Appeals for the District of Columbia Circuit which struck down some of the FCC’s Open Internet (or “network neutrality”) rules.

Benton strongly believes that Open Internet rules are necessary for the Internet to continue to be a boon to commerce and our democracy, and they remain an important policy goal of the FCC. It is particularly important to enact strong Open Internet rules because of the disproportionate impact of an ISP’s discriminatory behavior on vulnerable populations, such as people of color, low-income populations, seniors, people with disabilities, and rural communities. These groups of traditionally-marginalized voices rely on the Internet as a critical -- and unique -- tool for communication and empowerment. The Internet provides a means for these communities to dispel misperceptions and stereotypes that restrict their political, social, and economic participation. It enables them to connect with others, express their viewpoints, and obtain basic information and resources. Equal access to Internet content thus means equal access to opportunities that are vitally important to vulnerable populations in light of the disadvantages and discrimination they face.

There are three basic Open Internet rules:

1. Transparency: Broadband providers must disclose information regarding their network management practices, performance, and the commercial terms of their broadband services;
2. No Blocking: Fixed broadband providers (such as DSL, cable modem or fixed wireless providers) may not block lawful content, applications, services or non-harmful devices. Mobile broadband providers may not block lawful websites, or applications that compete with their voice or video telephony services;
3. No Unreasonable Discrimination: Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. The no blocking and no unreasonable discrimination rules are subject to limited exceptions for “reasonable network management.”

The Circuit Court approved of the transparency rules, so broadband providers are still required to disclose their activities -- in other words, to reveal how they are managing traffic.

Also, importantly, the court ruled that the Telecommunications Act of 1996 “vests [the FCC] with affirmative authority to enact measures encouraging the deployment of broadband infrastructure.” The provisions of the 1996 Act in question, Section 706, “empower [the FCC] to promulgate rules governing broadband providers’ treatment of Internet traffic.” The opinion continues to say that the FCC’s justification for the Open Internet rules -- “that they will preserve and facilitate the ‘virtuous circle’ of innovation that has driven the explosive growth of the Internet” -- is both reasonable and supported by evidence. Sec 706 states:

“The Commission and each State commission with regulatory jurisdiction over telecommunications services shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) by utilizing, in a manner consistent with the public interest, convenience, and necessity, price cap regulation, regulatory forbearance, measures that promote competition in the local telecommunications market, or other regulating methods that remove barriers to infrastructure investment.”

But the court ruled that the FCC may not apply anti-blocking and nondiscrimination provisions to broadband providers. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the FCC from nonetheless regulating them as such, the court ruled. Basically, the court said that the FCC saddled broadband providers with the same sorts of obligations as traditional "common carrier" telecommunications services -- traditional, landline phone service -- even though the Commission had explicitly decided not to classify broadband as a telecommunications service.

In the current proceeding, the FCC indicated its preference to enact Open Internet standards under Sec 706 authority and to enforce those standards on a case-by-case basis. In our comments, Benton encourages the FCC to take a close look at the issues surrounding use of Sec 706, and consider a pathway to achieve meaningful protections through reclassification of the provision of broadband as a telecommunications service.

The court ruled out using Sec 706 authority to impose common carrier obligations, such as the nondiscrimination principle, on “information services,” such as broadband providers. But non-discrimination lies at the heart of the Open Internet. For example, the FCC found -- and the court agreed -- that broadband providers have an incentive to discriminate against and among edge providers by charging them fees either to exclude competitors or grant prioritized access to end users. Permitting these practices would directly contravene the principles underlying an Open Internet, yet the Circuit Court indicated that any standard appearing to apply a non-discrimination obligation on an information service would be rejected as common carrier treatment. Thus, without the ability to enforce a non-discrimination principle on broadband providers, the FCC cannot ensure an Open Internet.

Similarly, a Sec 706 scheme may allow for a robust no-blocking standard, but would simultaneously undermine a non-discrimination standard. The court suggests that the no-blocking rule could be applied to an information service through Sec 706 if the service offered were defined as “access to subscribers generally” at a basic level, while leaving room for individual negotiations. This approach, unfortunately, would undermine a non-discrimination standard because these individual negotiations, by definition, would lead to discrimination based on content. In essence, the exception would swallow the rule as content providers with economic means increasingly negotiate with ISPs for faster transmission. This would severely disadvantage groups that cannot afford individual negotiations, such as non-profit, community-based organizations. The ultimate victims of this scheme would be the vulnerable populations who most need access to the services provided by these groups.

Benton suggests that a simpler and more comprehensive approach to achieving the FCC’s goal of ensuring an Open Internet is to reclassify broadband delivery services as a telecommunications service. Despite the fact that the FCC previously classified delivery of broadband as an information service, these services perform functions that are typically associated with common carriage. Consumers now also view delivery services as distinct from the applications that work over the Internet. Reclassification of delivery of broadband as a telecommunications service may be a politically difficult choice, but it is an inevitable choice if the FCC is to ensure the continued value and viability of the Internet.

Reclassifying broadband delivery services would also further solidify the FCC’s authority to make necessary updates to vital universal service programs including E-Rate, Lifeline, and Link-up which ensure that telecommunications services are available and affordable throughout the country. These are vital programs that primarily help disadvantaged and vulnerable populations, as well as provide schools and libraries with the Internet connections needed to foster the next generation of Internet entrepreneurs and users. The FCC should not continue to gamble on its currently-uncertain authority; instead, it should take the path that firmly grounds its authority. Reclassification of broadband delivery services to telecommunications is the best way to do that.

Amina Fazlullah serves as the Benton Foundation's Director of Policy.