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April 23 --Tom Wheeler, the chairman of the Federal Communications Commission told reporters that he will circulate a proposal on April 24 that seeks to restore the agency's net neutrality rules.
The commission plans to consider the forthcoming draft notice of proposed rulemaking (NPRM) at its May 15 open meeting. The proposal will detail the agency's plans to re-implement and enhance the vacated portions of the agency's 2010 open Internet rules.
In January, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the rules may not bar Internet service providers (ISPs) from blocking or discriminating against Internet content transmitted across their networks (Verizon Commc'ns Inc. v. FCC, D.C. Cir., No. 11-1355, 1/14/14). Since then the commission has been developing rules to ensure that ISPs don't unfairly block or discriminate against Internet content providers like Netflix Inc., Google Inc. and Amazon.com Inc.
The draft NPRM is consistent with the framework the agency laid out in February, which follows the blueprint of the D.C. Circuit opinion in Verizon v. FCC, and seeks broad public comment on the adoption of final rules, an FCC spokesman said.
The FCC will use its authority under section 706 of the Telecommunications Act of 1996 and the guidance of the court to enforce and enhance the non-discrimination and no-blocking rules. The court affirmed that Congress provided the FCC with legal authority to create rules governing broadband Internet access via section 706, which requires the FCC to encourage “the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.”
In earlier remarks, Wheeler has said the forthcoming NPRM will detail how the agency plans to reinstate its rule that ISPs may not explicitly or implicitly block edge providers from reaching consumers and ensure that consumers can continue to access any lawful content and services they choose.
The FCC's new non-discrimination rules will consider:
• setting an enforceable legal standard that provides guidance and predictability to edge providers, consumers, and broadband providers;
• evaluating on a case-by-case basis whether that standard is met; and
• identifying key behaviors by broadband providers that the FCC would view with “particular skepticism.”
The FCC will craft its non-discrimination rules in accordance with a precedent set by the D.C. Circuit Court's decision in a previous case regarding the FCC wireless data roaming requirements Cellco Partnership v. FCC, D.C. Cir., No. 11-1135, 12/4/12). In its Cellco decision, the court upheld an FCC rule requiring wireless carriers to allow customers of their competitors to roam on their networks because it specified that all facilities-based mobile broadband providers must offer their competitors' data-roaming arrangements on “commercially reasonable terms and conditions,” subject to certain limitations. The court struck down the FCC's net neutrality rules because they too closely resembled Title II common carrier regulations.
The FCC will also seek to enhance the transparency rule in the 2010 Open Internet Order that requires fixed and mobile broadband providers to “disclose the network management practices, performance characteristics, and terms and conditions of their broadband services.” The D.C. Circuit upheld the FCC's transparency rule in its January decision.
It is unlikely, based on Wheeler's previous statements, that the commission will include language in the proposal to govern network interconnection agreements. Last month, Wheeler told reporters that “peering is not a net neutrality issue. There is a matter of the open Internet and then there is the matter of interconnection among the various disparate pathways that become the Internet,” he said.
“The NPRM will propose, consistent with the Court's analysis, that broadband providers would be required to offer a baseline level of service to their subscribers, along with the ability to enter into individual negotiations with content providers,” an FCC spokesman told Bloomberg BNA. “In all instances, broadband providers would need to act in a commercially reasonable manner subject to review on a case-by-case basis. Exactly what the baseline level of service would be, the construction of a 'commercially reasonable' standard, and the manner in which disputes would be resolved, are all among the topics on which the FCC will be seeking comment.”
Netflix Chief Executive Officer Reed Hastings recently urged the FCC to implement “stronger net neutrality” rules in order to prevent ISPs from requesting high interconnection fees from edge content providers. Hastings complained that ISPs are motivated to charge content providers fees for more direct connections to their servers so that consumers receive faster access to high-bandwidth web services like file sharing and streaming video. Hasting's request followed his company's decision to pay for more-direct access to Comcast's broadband network.
In his first public policy speech Wheeler said regulators should observe the evolution of two-sided marketplaces where companies like Netflix enter into agreements with ISPs for better connections to their subscribers. Wheeler subsequently clarified during a 2013 congressional hearing that the commission has a responsibility to “make sure that what takes place does not interfere with Internet access, is not anticompetitive, does not offer preferential treatment, and we will enforce that.”
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