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Friday, January 15, 2021

Column: Net Neutrality and You

By Craig D. Dingwall, Technology Law Group

This is Part I of this article. Don’t miss Part II, coming next week.

On March 1, 2015, the FCC released its so-called Net neutrality Rules, which govern the provision of fixed and mobile broadband Internet access service (BIAS). What does it mean for you?

The FCC claims that the new rules are necessary to preserve an open Internet, citing past instances of abuse exemplifying broadband providers’ “incentives and ability to engage in practices that pose a threat to Internet openness”.  Many critics argue that the new rules are a bad solution in search of a problem, and that they will stifle competition, growth and investment.

The new rules ban blocking, throttling and paid prioritization, and will be administered on a case-by-case basis. Under the new rules, BIAS providers can’t:

  • Block lawful content, applications, services or non-harmful devices, subject to “reasonable network management”;
  • Impair or degrade lawful Internet traffic based on Internet content, application or service or use of a non-harmful device, subject to “reasonable network management” (e., no throttling);
  • Engage in paid prioritization (e., no fast lanes); or
  • Unreasonably interfere with or disadvantage (i) end users’ access and use of BIAS or the lawful Internet content, applications, services or devices, or (ii) edge providers’ ability to make lawful content, applications, services or devices available to end users, subject to “reasonable network management.”

The FCC’s 2010 transparency rule, which requires broadband Internet access service providers to publicly disclose accurate information regarding the network management practices, performance and commercial terms of broadband Internet access services, remains in effect.

The new rules define a “network management practice” as “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.”

To be clear, specifically, the FCC defined BIAS as 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.”   BIAS does not include enterprise services, virtual private network services, hosting, data storage services or Internet backbone services.

The FCC found that BIAS is a “telecommunications service” and subject to Sections 201, 202, and 208 of the Communications Act.  Commercial arrangements for the exchange of traffic with a BIAS provider “are within the scope of Title II” and the FCC will hear disputes on a case-by-case basis.

By subjecting BIAS to Sections 201, 202 and 208 of the Communications Act, such service must be provided “upon reasonable request,” BIAS charges, practices and classifications must be just and reasonable, and common carriers may not make any unjust and unreasonable discrimination in such charges, practices and classifications.  Violations are enforceable pursuant to the FCC’s Section 208 complaint proceedings. Statutes that protect customer privacy, regulate pole attachments, advance access for persons with disabilities and foster network deployment also apply to BIAS.

This is Part I of this article– don’t miss Part II, which will discuss the legal uncertainties and questions that arise from the FCC’s order.

For more information, please give us a call at 202-895-1707.  For the latest telecom news and access to valuable original content, please follow Technology Law Group on twitter @TechLawGroup.

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