Some Background…

In 2015 the FCC classified network providers (e.g. Verizon, AT&T, Sprint) as Common Carriers under Title II of the Communications Act of 1934. The act was enacted to provide for the regulation of interstate and foreign communication by wire or radio, and for other purposes. This was in response to a court decision in 2014.

The court order stemmed from a case brought by Verizon that the FCC did not have the authority to regulate or enforce the  FCC Open Internet Order 2010. This orders included three rules covering: transparency of network operation, prevention of blocking lawful content from non-harmful devices, and prevention of unreasonable discrimination of content.

The court ruled that some key provisions in the FCC Open Internet Order 2010 could not be enforced due to how the FCC classified providers, even differences between types of services (e.g. cable vs wireless.) The two provisions being struck/vacated were the blocking of content and unreasonable decimation of content. After almost a year of heated political and public debate, the FCC voted for classifying any provider of “telecommunications services” with an exception for fixed and mobile satellite services as being a common carrier under the Protecting and Promoting the Open Internet Order.

This order now groups ISPs into the same bucket of essential services like water and power. In turn, enforcement of the Open Internet Order was made possible. Additionally, feedback during the process was integrated as technological improvements and related concerns had accelerated considerably since 2010. Breaking down the rules of the Open Internet Order and the changes in 2015 are a first step in understanding Net Neutrality.

Transparency of Network Operation

“A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.”

This structure allows competition through customer/consumer enablement. It’s hard to compare services if it is not possible to tell them apart, especially related to terms of service. Sounds like good customer service to let users know the nature of a network disruption or a maximum amount of data permitted in a given billing cycle as part of reasonable network management.

Prevention of Blocking

“A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.

A person engaged in the provision of mobile broadband Internet access service, insofar as such person is so engaged, shall not block consumers from accessing lawful websites, subject to reasonable network management; nor shall such person block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management.”

Cases in this realm have occurred in the past and only with eventual transparency of facts and customer outcry have been rectified. Consider not being able to use a popular ride sharing app on your cell phone because your provider has an agreement or stake with a competitor.  Consider the example where AT&T blocked FaceTime on their cellular network in 2012; this was sighted by the FCC[i] as one of the reasons to enact the Protecting and Promoting the Open Internet Order.

No Unreasonable Discrimination

“A person engaged in the provision of fixed broadband Internet access service, insofar as such person is so engaged, shall not unreasonably discriminate in transmitting lawful network traffic over a consumer’s broadband Internet access service. Reasonable network management shall not constitute unreasonable discrimination.”

Similar to blocking of content, this has to do with making less accessible without fully blocking the content. Say for example your favorite video streaming site is slower because your carrier does not approve of the lawful content on the site. Additionally, this would prohibit network traffic being prioritized based on the area that it originated outside of reasonable network management. An example of reasonable management would be in converged services where VoIP and video traffic can take precedence over general network data.

No Paid Prioritization (Added in 2015)

“(a) A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not engage in paid prioritization.

(b) “Paid prioritization” refers to the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either;

(1) In exchange for consideration (monetary or otherwise) from a third party, or

(2) To benefit an affiliated entity.

(c) The Commission may waive the ban on paid prioritization only if the petitioner demonstrates that the practice would provide some significant public interest benefit and would not harm the open nature of the Internet.”

An extension of unreasonable discrimination, this new rule came into the limelight during the year between the court decision and the new order placing carriers within Title II. This was built on the response to the original plan by the FCC to create “fast and slow” broadband lanes where those content providers or customers who paid for faster access to the specific content. Some ISPs[ii] have already started changing their open Internet assertions in preparation for the potential changes.

[i] Note that the FCC didn’t specifically rule that this action was in violation of the 2010 order, but an example within a trend of non-transparent practices by mobile broadband carriers.

[ii] https://arstechnica.com/tech-policy/2017/11/comcast-deleted-net-neutrality-pledge-the-same-day-fcc-announced-repeal/

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