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‘Policy’ Category

Liveblogging the Vote on Rules Protecting the Open Internet

December 21st, 2010 by George Krebs

FCC December Open Commission Meeting, Washington, D.C.

Today’s meeting is being live streamed. We’re also live tweeting this morning from @FCC. Join the conversation for these open Internet rules using #oir. A statement from Chairman Genachowski and the full slate of commissioners will be posted to the FCC homepage shortly following the meeting.

10:24am ET

This is about the vibrancy of the Internet. Its freedom, its openness, its unfathomable potential. Today we affirm that hallmark. The last twenty years have demonstrated the importance of the Internet in virtually every layer of American society. Yet adequate protections currently do not exist. These rules will get the job done.

Every student who dreams an app, every curious tinkerer who devises a device, every innovator who sees an opening to push our nation forward. And every speaker who enters their discourse into the marketplace of ideas, every business owner who reaches for the next American summit. That’s who we’re protecting today. While we recognize the need for a measure of restraint in this changing landscape, and have included provisions to that end, the wonders of the Internet must not be stifled.

The majority of the focus this morning will center around the open Internet rules. Today’s commission meeting, however, will hear two items. First, a presentation from the Public Safety and Homeland Security Bureau on a Framework for Next Generation 911 Deployment. This will mark watershed movement for our nation’s first responders by developing a framework to provide multimedia resources beyond voice-only. Then we will tackle the final item, Preserving the Open Internet. Votes on both of these items will follow their presentation.

10:57am ET

The commissioners take their place and the meeting is set to begin. A capacity crowd is on hand to witness this historic day.

First, the Next Generation 911 item.  As Public Safety Bureau Chief Jamie Barnett announces, the order takes the form of a “Notice of inquiry concerning the transition from the current, voice-only 911 system to a broadband-enabled, next-generation 911 system.” More complex participation, allowing for texts, video, and multimedia in contacting 911. After the presentation, commissioners make remarks.

11:16am ET

“It’s time to bring 911 into the digital age… 911 is an indispensible tool. Broadband can make it even better,” Chairman Genachowski says. Commissioners’ comments are roundly positive with Commissioner Baker thanking public safety professionals, first responders, and agency staff for vaulting 911 into the next generation. Vote on the Notice of Inquiry for deployment passes unanimously.

11:22am ET

We now move to the momentous item of the morning. FCC staff line the table to present the Preserving the Open Internet and Broadband Industry Practices order. Chairman Genachowski cedes the microphone to Sharon Gillette, Chief of the Wireline Competition Bureau.

“This order will establish three basic rules: transparency, no blocking, and no unreasonable discrimination,” Gillette says. “Collectively they protect and empower consumers. Provide clarity for broadband providers.”

Entrepreneurs, investors and consumers depend on these principles. Broadband providers require stability. Home broadband has grown astronomically and they now have the financial viability they seek. “Rules we propose will bring increased certainty to this vital sector of the American economy,” Paul de Sa says.

11:27am ET

Wireless Telecommunications Bureau Chief Ruth Milkman takes over. Consumers are using mobile broadband at an accelerating pace. Users are gaining greater access to a diverse range of applications and programs. Concerns have been raised about blocking. We are adopting a measured approach. Mobile providers may not block access to lawful websites or block apps that compete with their voice and video telephony services, where providers have the most incentive to leverage their position.

11:32am ET

Chief Counsel Austin Schlick details the Commission’s legal authority. The 1996 Act confers “authority and discretion to settle on the best regulatory or deregulatory approach to broadband.” We’re also charged with promoting competition, overseeing broadcasting. Blocking limits the ability of broadcasters to have equal access over the internet. “In short,” Schlick says, “the open Internet rules will permit efficient, nation-wide communications.”

11:48am ET

With the conclusion of the presentation, senior Commissioner Michael Copps begins. “It is my hope we will continue the great American Internet story… We cannot afford to relegate Internet authority to large corporations and think of what might have been.” Previous communications technologies have also fallen victim to private control. “In 2003 I warned that the Internet may be dying because of a lack of provisions.”

All we need to do is look at the history of the FCC. Commissioner Copps gives a brief history of the outgrowth of the telephone and demonstrates how its deregulated path follows that of the Internet. “Sound familiar?” Copps asks. One company, AT&T, insisted that for safety and maximum progress they needed to dominate the industry. He fears today’s order doesn’t go far enough, “in my book today’s action would and could have gone further. I considered dissent very seriously. But it’s clear to me that without action today, work on network neutrality would halt.” Copps ensures the importance of today is lost on no one. “We have in our grasp now the most promising communications technology in all of history. Needs to be responsive to all, available to all, and affordable.”

12:09pm ET

Commissioner Robert McDowell begins his dissent – “for those joining us for the first time” – by noting that over 90% of the votes at the FCC are bipartisan and unanimous. He disagrees sharply with how we should provide for an open Internet. “The era of legal Internet arbitrage has dawned,” he says. Says the measure is becoming politicized. McDowell sites several government studies to bolster his argument. His contention: nothing is broken that needs fixing; FCC does not have authority; proposed rules will cause irreparable harm.

12:23pm ET

Two lengthy statements later Commissioner Mignon Clyburn makes remarks. She will concur in part, approve in part. There are areas in the current order she would have liked strengthened. “First, I would have extended all of the fixed rules to mobile. Some communities, such as African-Americans, rely on mobile Internet more than others.” While the route taken is not the one she would have picked, she believes it is appropriate for the Commission to act. “Without an open Internet, consumers will have few choices and opportunities.”

12:44pm ET

“I really, really, really dissent,” says Commissioner Meredith Baker. The Commission put its thumb on the scale for how the Internet will operate. “At best, the majority solves a problem of its own making.” She says this order will add to uncertainty. Baker details her seven complaints, warning against preventing prospective harm.

12:53pm ET

As the final speaker of the afternoon, Chairman Genachowski takes the mantle. He opens with a quote from World Wide Web inventor Tim Berners-Lee, “The Web as we know it [is] being threatened.” Today we are adopting enforceable rules to preserve open Internet values, The freedom and openness of Internet is unprotected. No process for monitoring, no recourse for innovators, no predictability for providers.

There are those on both extremes, Chairman Genachowski says, I reject both. “We heard familiar comments today, often trotted out to oppose any government action.” The lack of basic rules of the road are starting to hamper growth. Commonsense rules are key for economic growth, job creation and competitiveness. Even after the Commission promoted Open Internet principles in 2005, we’ve seen clear deviations.

At the same time, government must not overreach or pretend to have knowledge about this dynamic and rapidly changing marketplace that we do not possess. “Today we’re adopting rules of the road that strike the right balance,” he says. “Our action will advance our goal of having America’s broadband networks be the freest and fastest in the world. And our action will ensure Internet freedom at home, a foundation of our argument for Internet freedom around the world.”

The Chairman will now lay out the key principles the order enshrines.

12:58pm ET

The six principles are as follows:

1) Transparency. Consumers and innovators have a right to know the basic performance characteristics of their Internet access and how their network is being managed.

2) No Blocking. A right to send and receive lawful traffic. This prohibits blocking of lawful content, apps, services, and the connection of non-harmful devices to the network

3) Level Playing Field. A right to a level playing field. A ban on unreasonable discrimination.  No approval for so-called “pay for priority” arrangements involving fast lanes for some companies but not others.

4) Network Management. An allowance for broadband providers to engage in reasonable network management. These rules don’t forbid providers from offering subscribers tiers of service or charging based on bandwidth consumed.

5) Mobile. Broadly applicable rules requiring transparency for mobile broadband providers, and prohibiting them from blocking websites and certain competitive applications.

6) Vigilance. Creation of an Open Internet Advisory Committee to assist the Commission in monitoring the state of Internet openness and the effects of our rules.

1:07pm ET

Chairman Genachowski concludes his remarks and the afternoon’s meeting. “Today a strengthened FCC is adopting rules that empower consumers and entrepreneurs and protect free expression. These rules fulfill many promises, including a promise to the future. A promise to the companies that don’t yet exist, the entrepreneurs that haven’t yet started work in the dorm rooms or garages.”

A vote is taken and the order passes 3 – 2, with “ayes” from Genachowski, Copps and Clyburn; dissents from McDowell and Baker.

Preserving a Free and Open Internet [video]

December 2nd, 2010 by George Krebs

In his clarion call yesterday morning Chairman Julius Genachowski laid out a proposal for basic rules of the road to preserve the open Internet as a platform for innovation, investment, job creation, competition, and free expression.

These rules rest on three basic tenets:
1) Americans have the freedom to access lawful content on the Internet, without discrimination
2) Consumers have the right to basic information about your broadband service
3) The Internet will remain a level playing field.

This proposal is deeply rooted in history. The grounding ideas were first articulated by Republican Chairmen Powell and Martin and, in 2005, endorsed in a unanimous FCC policy statement. Chairman Genachowski cited the many months of hard work leading up to this moment – hard work across government, industry and broadband providers – and the substantial response received from the engaged public.

Watch the HD video below

(This is cross-posted on The Official FCC Blog.)

Preserving a Free and Open Internet

December 1st, 2010 by Julius Genachowski - Chairman, Federal Communications Commission

Julius GenachowskiAfter months of hard work we have reached an important milestone in the fight to protect a free and open Internet for all Americans.

Today, the FCC proposed basic rules of the road to preserve the open Internet as a platform for innovation, investment, job creation, competition, and free expression. If adopted later this month, these basic rules will mean several things for consumers, namely:

1. Americans have the freedom to access lawful content on the Internet, without discrimination. No one should be able to tell you what you can or can’t do on the Internet, as long as it’s lawful. Our rules will ensure that no central authority—either corporations or government—have the right to decide what you can access on the Internet.

2. You have a right to basic information about your broadband service. Our proposed framework will ensure that consumers have information they need to make informed choices about subscribing or using broadband networks.

3. The Internet will remain a level playing field. The ability for consumers to speak their mind, engage in commerce and innovate without permission from a corporation has enabled the Internet’s unparalled success.  Our rules will protect against corporate gatekeepers prioritizing access to one person’s content over another’s.

The openness of the Internet has enabled unparalleled innovation and job growth, yet we continue to find examples of this freedom being attacked. We have found instances when broadband providers position themselves as gatekeepers to the Internet, and have prevented consumers from using applications of their choice without disclosing what they were doing.

We must take action to protect consumers against price hikes and closed access to the Internet—and our proposed framework is designed to do just that: to guard against these risks while recognizing the legitimate needs and interests of broadband providers.

I look forward to the very important work ahead as we strive for free and open communications for all Americans.

[Cross-posted at]

FCC Releases Open Internet Public Notice

September 1st, 2010 by John Leibovitz - Deputy Chief, Wireless Telecommunications Bureau, FCC

By John Leibovitz and Don Stockdale

Over the last several months, Commission staff has pored over the extensive record of public comments we received in response to the Open Internet Notice of Proposed Rulemaking.  The discussion generated by the Open Internet proceeding appears to have narrowed disagreement on many of the key elements of the framework proposed in NPRM, including those that would prohibit broadband providers from blocking lawful online content, applications, and services, and would require providers to disclose their network management practices so that consumers and the Commission can be sure that the Internet remains an open platform for innovation, investment, and freedom of speech.

Today the Wireline Competition Bureau and the Wireless Telecommunications Bureau issued a Public Notice that asks specific questions about two issues that would benefit from further development in the record: (1) The relationship between open Internet protections and services provided over the same last-mile facilities as broadband Internet access service (often called “managed” or “specialized “ services); and (2) The application of open Internet rules to mobile wireless Internet access services.  These issues are among the most complex in the open Internet proceeding, and recent events as well as insights gleaned from public comments have raised additional questions for the Commission to consider.

We look forward to receiving your input in the weeks ahead.

A Third-Way Legal Framework For Addressing the Comcast Dilemma

May 6th, 2010 by Austin Schlick General Counsel

austin schlickWhen the D.C. Circuit issued its opinion in the Comcast/BitTorrent case, it was clear the decision could affect a significant number of important recommendations in the National Broadband Plan, the Commission’s Open Internet proceeding, and other policy initiatives related to broadband.  In light of the uncertainty created by the decision, the Chairman asked me to investigate all of the options available to the Commission.  Other FCC staff and I have developed a proposal that we believe resolves the doubt created by the D.C. Circuit’s opinion while providing a firm legal basis for the Commission’s limited, but vital role with respect to broadband.  Whether, all things considered, the legal response to Comcast sketched out in our proposal is the best one for the Commission to adopt would be for the five FCC Commissioners to answer after public comment and private study.  In my judgment, it’s a question worth asking.

Read more about the proposal here.

Read Chairman Genachowski’s statement discussing his reasons for seeking comment on the proposal here.

[Cross-posted from Blogband]

The Third Way: A Narrowly Tailored Broadband Framework

May 6th, 2010 by Julius Genachowski - Chairman, Federal Communications Commission

Julius GenachowskiBroadband is increasingly essential to our daily lives. It is fast becoming the primary way we as Americans connect with one another, do business, educate ourselves and our children, receive health care information and services, and express our opinions. As a unanimous FCC said a few weeks ago in our Joint Statement on Broadband, “Working to make sure that America has world-leading high-speed broadband networks—both wired and wireless—lies at the very core of the FCC’s mission in the 21st Century.”

Many have asked about the future of Internet policy and the FCC’s role in that future in light of the recent decision in the Comcast case.  Today I have issued a statement that describes a path forward, which will begin with seeking public comment on a narrow and tailored legal foundation for the FCC’s approach to broadband communications services.  Our goal is to restore the broadly supported status quo consensus that existed prior to the Comcast decision regarding the FCC’s role with respect to broadband Internet service.

This statement describes a framework to support policies that advance our global competitiveness and preserve the Internet as a powerful platform for innovation, free speech, and job creation.  I remain open to all ideas on the best approach to achieve our country’s vital goals with respect to high-speed broadband for all Americans, and the Commission proceeding to follow will seek comment on multiple legal theories and invite new ideas.

[This is cross-posted from Blogband]

What does “Open Internet” have to learn from the Electronic Communications Privacy Act?

March 9th, 2010 by Robert Cannon - Senior Counsel for Internet Law - Office of Strategic Planning & Policy Analysis, FCC

Bob CannonIssues similar to “reasonable network management” come up in the context of wiretaps and specifically the Electronic Communications Privacy Act (ECPA).  ECPA is described as a rule governed by exceptions.  The rule is, “thou shall not listen in on other people’s communications,” where “thou” is everyone including ISPs.  One of the exceptions to ECPA is that ISPs can intercept communications when necessary for the rendition and protection of their network.  In the relevant provision, ECPA states

It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of a provider of wire or electronic communication service, whose facilities are used in the transmission of a wire or electronic communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the provider of that service, except that a provider of wire communication service to the public shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

18 U.S.C. § 2511(2)(A)(i) (emphasis added).

ECPA attempts to draw a line between network activity that is necessary for the rendition of the service, and that which is not necessary and therefore potentially an illegal wiretap.  But what does “necessary for the rendition and protection of service” mean?  Several courts have considered this question.  According to these courts, actions “necessary for the rendition and protection of service” includes intercepting communications from a cloned cellphone in order to determine its source, United States v. Pervaz, 118 F.3d 1, 5 (1st Cir. 1997), monitoring misuse of a network, United States v. Mullins, 992 F.2d 1472, 1478 (9th Cir. 1993), and intercepting communications from illegal devices in order to detect theft of service, United States v. Freeman, 524 F.2d 337, 341 (7th Cir. 1975).

This does not, however, give license to ISPs to do anything in the name of rendering or protecting service. According to DOJ, ISPs “should attempt to tailor their monitoring and disclosure to that which is reasonably related to the purpose of the monitoring.”  One court states that “there should be a ’substantial nexus’ between the monitoring and the threat to the provider’s rights or property.” United States v. McLaren, 957 F. Supp. 215, 219 (M.D. Fla. 1997). For a more in depth discussion of ECPA and this particular exception, see DOJ’s 2009 Search and Seizure Manual, p. 172: The Provider Exception.

As the FCC examines the Open Internet proceeding and the possible distinction between reasonable and non-reasonable network management, can anything be learned from ECPA and its surrounding caselaw, including the concept of “activity necessary for the rendition and protection of that service”?

Historical Contingency, Inevitability, and the Open Internet

January 29th, 2010 by Stuart Benjamin

Stuart BenjaminOne interesting question is which historical developments were inevitable and which could have come out differently (e.g., was World War I inevitable?).  It is impossible to know, of course, but in communications policy most commentators believe that many developments that we take for granted were historically contingent.  For instance, if in the early 20th century telephone companies had (either by choice or mandate) allowed interconnection (so that customers of one network could call the customers of another network), we might not have ended up with a single company as the dominant telephony provider for most of the 20th century.  Another example flows from the fact that, in allotting television stations, the FCC chose to emphasize localism.  If it had instead emphasized national competition, we might have ended up with more national networks, but at the expense of having regional rather than local stations.  The Internet is particularly fertile ground for historical contingency.  If AT&T had not agreed in a 1956 consent decree to refrain from providing computer services, it might have dominated the field from the beginning.  If a few engineers working with the Department of Defense had created their protocols a bit differently, it might be much harder to connect, and add your own voice, to the Internet.  And if the government had decided to create a more easily controllable network, preventing someone like Tim Berners-Lee from adding his code on top of the existing protocols, we might not have the Web as we know it.

I think that most people take for granted that if they want to send an online message to a friend it won’t be blocked, that if they want to create a new website their broadband provider won’t relegate their content to a slow lane unless they pay a premium, and that if they want to access a cool new online service it won’t be degraded by their broadband provider.  If you think these aspects of the Open Internet are undesirable and contingent, then you may not want any FCC proposals to keep them in place.  If you think these aspects are inevitable, then you may be indifferent about possible Open Internet rules.  If you think they are desirable and contingent, then you may want Open Internet rules.  What do you think?

What the Open Internet Means for Democracy

December 10th, 2009 by Steve Waldman Senior Advisor to the Chairman, Future of the Media

Steve WaldmanHow would the world have been different for the past decade if we hadn’t had an open Internet? For instance,  would the world know about Neda, the Iranian woman who was murdered during democracy protests?  That video was captured on the spot by a citizen, quickly loaded on the Internet and then spread (for free) as bloggers and news organizations posted YouTube embeds.  Over and over again, a journalist or citizen saw the video and, through the radical pro-democracy step of simply hitting Control C, Control V, spread Neda’s story.

It’s not just in foreign lands that an open Internet helps promote democracy. The same basic dynamic has been repeated over and over in the U.S. In the last national elections both sides made effective use of virally-spreading videos and information. On the local level, citizens use digital tools to find out information about their governments and communities. Concerned citizens, community activists, and political parties across the ideological spectrum increasingly use the open Internet to obtain pertinent information about government policies, hold their elected leaders accountable, and spread their message to others.

Putting aside the question for now of how to guarantee openness, it does seem clear that the ability of the Internet to encourage democracy, empower grass roots Americans and people around the world, requires a profoundly open system.

43 Years of FCC Internet Policy

October 29th, 2009 by Robert Cannon - Senior Counsel for Internet Law - Office of Strategic Planning & Policy Analysis, FCC

Bob CannonThe first time the FCC considered a policy for the Internet was 1966.  Yes, 1966.  Three years before the first packets were sent on the ARPANET and six years before Vint Cerf and Bob Kahn introduced their paper on the Internet Protocol.

Okay, this is a bit of an embellishment designed to get your attention.  On the other hand, it really isn’t.  In 1966, the FCC initiated the Computer Inquiries.  Computers were relatively new phenomena in telecommunications networks.  Some computers facilitated the operations of the telecommunications networks; other computers were interacted with over the network.  What was the FCC to make of these computers? What jurisdiction did the FCC have?

The Computer Inquiries consisted of three major proceedings: Computer I (1966); Computer II (1976); and Computer III (1985).  Throughout all of these proceedings, FCC policy remained consistent while the agency revisited and revised the implementation in order to more effectively achieve its goals.

The FCC consistently distinguished between the computers that ran the telecommunications networks and computers that were used over the telecommunications networks.  The FCC concluded that there was no public interest in regulating computers used over the telecommunications network:

[T]here is ample evidence that data processing services of all kinds are becoming available in larger volume and that there are no natural or economic barriers to free entry into the market for these services. The number of data processing bureaus, time sharing systems, and specialized information services is steadily increasing and there are no indications that any of these markets are threatened with monopolization.
Computer I Tentative Agreement ¶ 20.

The FCC recognized that computer services promised great economic opportunity and innovation for the country, and that these services were 100% dependent on the underlying telecommunications networks.  The FCC wanted to ensure that carriers were offering the telecommunications services necessary in order for computer services to thrive and that the telecommunications networks could not use their market power to engage in anti-competitive behavior:

There is virtually unanimous agreement by all who have commented in response to our Inquiry, as well as by all those who have contributed to the rapidly expanding professional literature in the field, that the data processing industry has become a major force in the American economy, and that its importance to the economy will increase in both absolute and relative terms in the years ahead. There is similar agreement that there is a close and intimate relationship between data processing and communications services and that this interdependence will continue to increase. In fact, it is clear that data processing cannot survive, much less develop further, except through reliance upon and use of communication facilities and services.
Computer I, Final Order, ¶ 7 (1971).

In Computer II, the FCC came up with the Enhanced Services (aka “information services”) / Basic Services dichotomy.  Basic services were the telecommunications services (the network infrastructure) that moved voice, information, and data – without processing, altering, or changing that data.  Safeguards were imposed on basic services in order to ensure that telecommunications networks were open to any computer service.

Information services were the services that did not have market power and were not subject to FCC safeguards.  They were the services provided over the telecommunications network that offered some level of interactivity, processing, or alteration.  While the Computer Inquiries did not regulate information services, the Computer Inquiries were designed to directly benefit information services.

The Computer Inquiries contained safeguards which included structural separation, accounting rules, information sharing rules, disclosure rules, and bundling rules.  These were specific rules that ensured that Internet networks and computer networks could be built.  They were designed to open up the telecommunications networks for use by the computer networks, while safeguarding the computer networks from anticompetitive behavior by the telecommunication networks.  The Computer Inquiries have been described as “wildly successful.” Prof. Jonathan Weinberg p. 40; Robert Cannon, The Legacy of the FCC’s Computer Inquiries, 55 FCLJ 167 (2003).

What lessons can be taken from the Computer Inquires?  What do they say about the FCC’s approach to the Internet and open networks?  The Computer Inquiries assumed that Internet networks would have underlying common carrier infrastructure over which they could be built; what are the implications where the Internet has been transformed from a service provided over the common carrier infrastructure, to the network infrastructure itself with no underlying common carriage?  How has the Internet service market changed since the time of the Computer Inquiries?