Surprises in the Open Internet NPRM

by on October 23, 2009 · 14 comments

Pre-release rumors and press reports were making it sound like the Obama administration let Rep. Ed Markey draft the FCC’s Notice of Proposed Rulemaking to “Preserve the Free and Open Internet.”

Maybe there was a last-minute change of plan.

There were rumors and/or reports that the NPRM would contain a “viewpoint diversity” mandate and only allow forms of network management which someone has managed to prove to the FCC satisfy a “strict scrutiny” test.

In the Markey-Eshoo bill, the strict scrutiny test is defined as follows:

[A] network management practice is a reasonable practice only if it furthers a critically important interest, is narrowly tailored to further that interest, and is the means of furthering that interest that is the least restrictive, least discriminatory, and least constricting of consumer choice available.

But in paragraph 137 of the NPRM, the commission declines to adopt a strict scrutiny standard.

We recognize that in a past adjudication, the Commission proposed that for a network management practice to be considered “reasonable,” it “should further a critically important interest and be narrowly or carefully tailored to serve that interest.” We believe that this standard is unnecessarily restrictive in the context of a rule that generally prohibits discrimination subject to a flexible category of reasonable network management. We seek comment on our proposal not to adopt the standard articulated in the Comcast Network Management Practices Order in this rulemaking.

There were also reports the NPRM would include a carve-out for application and service giants like Google. But the definitions in the draft regulations included in the NPRM are so broad that many applications and services arguably could be included:

Broadband Internet access. Internet Protocol data transmission between an end user and the Internet. For purposes of this definition, dial-up access requiring an end user to initiate a call across the public switched telephone network to establish a connection shall not constitute broadband Internet access.

Broadband Internet access service. Any communication service by wire or radio that provides broadband Internet access directly to the public, or to such classes of users as to be effectively available directly to the public.

The regulations, if adopted, would apply to wireless broadband services. Which is no surprise.

The NPRM must be a disappointment for regulatory proponents, and will be bitterly fought over in the coming months. The deadline for public comments is January 14, and March 5 for replies.

But the NPRM is by no means a victory for broadband providers or sound public policy. The following language from the proposed regs:

Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner

allows the FCC virtually unlimited discretion to allow or reject network management practices in the future. Broadband providers will have to seek FCC pre-approval, formally or informally, for everything they do.

That was the paradigm in the old days of the telephone monopoly. It was a golden era for lawyers and lobbyists, but not for investment and innovation.

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