Senior FCC officials said Monday that the commission's new expansion and codification of network neutrality rules will include a presumption that paid prioritization on the public Internet is discrimination prevented by the FCC's new rules.
They were speaking in advance of the Dec. 21 FCC meeting where the necessary three votes have been lined up to approve the new rules. That presumption against paid prioritization appears to be the major change from a legislative compromise version of the network neutrality rules proposed by Rep. Henry Waxman (D-Calif.).
Democratic commissioners who had expressed concerns about some of the language in the draft order when it was circulated Nov. 30 appeared to have been sufficiently satisfied with that and other language changes to support, or at least not block, a vote on the draft.
Commissioner Michael Copps plans to concur rather than approve the order, while commissioner Mignon Clyburn will approve in part and concur in part. A concurrence is short of approval, but is still a yes vote.
The order implements three basic rules: 1) a transparency rule that requires fixed and wireless broadband service providers to provide relevant information about their services to both consumers and content, applications, and device providers; 2) a no-blocking rule that prevents fixed broadband providers from blocking content, applications, services or devices, subject to "reasonable network management," and in the mobile space prevents the blocking of access to Web sites and applications that compete with voice or video telephony services, also subject to reasonable network management; and 3) a rule, applying only to fixed broadband, that prevents unreasonable discrimination by broadband providers in delivering the traffic on their networks.
The officials also wanted to make the point it was the first time the FCC would have adopted enforceable network neutrality rules.
The officials did not identify any major change from the initial draft's application of only no-blocking and transparency regulations to wireless broadband. Copps had wanted the rules to apply to both wired and wireless, and Clyburn had expressed concerns about that disparate treatment as well. Copps indicated in his statement that the order was better, but still not completely to his liking, the latter likely applying at least in part to the continued carve-out for wireless. Any more rules applied to wireless would have drawn the ire, and perhaps even the legal opposition, of the wireless industry.
But a source familiar with the order and Copps's concerns said that there had been some toughening of the wireless language, though not by applying any more regs. According to the source that includes reviewing the rules within two years and creating an advisory committee to help monitor the wireless market. The order also in no way endorses any activities in the wireless space being proscribed in the wired space by the regs.
An ISP source said that they thought there were no deal-breakers for industry in the order, but would wait to see the final language. Cable and phone companies aren't pleased with the commission's move, but prefer it to FCC chairman Julius Genachowski's original proposal to reclassify broadband under some common carrier Title II regs, which ISP's saw as the "nuclear" option.
The commission source familiar with Copps's suggestions also pointed out that there was no conclusion about paid priority in the original draft to the language, but that now it was presumed to be unreasonable discrimination. In addition, the definition of Internet Access Service now clearly applies not just to consumers but to small businesses, schools and libraries that get mass market services. It was not clear in the original draft. The source also said the order made it tougher for companies to skirt the rules by pretending they were something other than an Internet access service.
The FCC officials, who spoke on background, also made it was clear that the order did not give its blessing to paid prioritization of Internet services (like, say online video-delivery), as had been reported. Quite the contrary, they said. The order essentially presumes that such services would violate the regulation preventing online discrimination in applications and services, and that while it was theoretically possible a service might qualify in the future, they suggested it would be a high threshold.
Networks will still be able to prioritize so-called specialized services, which are broadband services that do not ride the public Internet. In part, that is the FCC's effort to leave room for prioritizing a broadband future that could include critical health or energy applications that will need priority over, say, grandma's "cat on the piano" video (our characterization, not the officials'). But it would also appear to leave room for setting up competitive video services not subject to the new rules. However, the officials said the FCC's oversight could actually reach into that non-public Internet space to cover services that are the functional equivalent to -- or are being used to bypass -- the Internet.
The order defines as a broadband Internet service one that lets users and businesses go where they want and do what they want on the Internet, including services that may develop in the future that are similar but which would be judged on a case-by-case basis.
Some public-interest groups have complained that the "reasonable network management" caveat is a loophole for ISPs.
The officials said the order makes clear that the standard will be specific enough to require the practices to be network management-specific rather than broad enough to cover anticompetitive practices. The FCC will use four benchmarks for reasonable actions: transparency, user control, application- and use-agnostic, and standard practices.
Assuming the three votes are delivered as declared, there will be essentially three rules, enforced on a case-by-case basis. The officials said outside complaints would be fast-tracked and the FCC would be conducting its own investigations and could initiate a complaint of its own.
The officials said the order is meant to address the failure of the commission under then FCC chairman Kevin Martin to provide sufficient statutory justification for its BitTorrent decision finding Comcast in violation of openness guidelines -- the ones the FCC is now codifying.