By Ron Thaniel
October 26, 2009

The FCC on October 22 voted to begin a rulemaking process that would codify and supplement existing Internet openness principles.

The rules, as proposed, would permit broadband Internet access service providers to engage in reasonable network management, including but not limited to reasonable practices to reduce or mitigate the effects of network congestion. Under the proposed rules a provider of broadband Internet access service would not be allowed to prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet; would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user’s choice; would not be allowed to prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network; would not be allowed to deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers; would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.

As proposed, the providers would also be permitted to address harmful traffic and traffic unwanted by users, such as spam, and prevent both the transfer of unlawful content, such as child pornography, and the unlawful transfer of content, such as a transfer that would infringe copyright. Further, nothing in the proposed rules supersedes any obligation a broadband Internet access service provider may have – or limits its -- to deliver emergency communications, or to address the needs of law enforcement, public safety, or national or homeland security authorities, consistent with applicable law.

The Notice affirms that the six principles it proposes to codify would apply to all platforms for broadband Internet access, including mobile wireless broadband, while recognizing that different access platforms involve significantly different technologies, market structures, patterns of consumer usage, and regulatory history.

Comments can be filed through the FCC’s Electronic Comment Filing System, and are due January 14. Reply comments are due March 5. For additional information, go to the FCC’s website at http://fcc.gov/.

Within hours of the FCC’s action, Senator John McCain (AZ) introduced legislation that would prohibit the FCC from enacting Network Neutrality rules. McCain said, “This government takeover of the Internet will stifle innovation, in turn slowing our economic turnaround and further depressing an already anemic job market.”

In a letter shortly after the FCC action, U.S. Senate Commerce, Science and Transportation Chairman John D. Rockefeller IV and House Energy and Commerce Committee Chairman Henry A. Waxman sent a letter to Julius Genachowski, Chairman of the FCC, voiced support Network Neutrality rules, stating, “We have each, in the past, voiced our support for policies that protect consumers and promote an open Internet. Our positions have not changed.”

While the debate around Net Neutrality is exciting, and may spur development and deployment of new applications, the Conference of Mayors will continue to focus on National Broadband Plan advocacy efforts that protect core city broadband concerns, including taxing and right-of-way authorities, and broadband build-out requirements, as evident in the Conference’s Reply Comments to the FCC’s Notice of Inquiry (NOI) regarding a National Broadband Plan on July 21, and the Conference’s proposed Comments in the FCC National Broadband Plan Notice #7 – Contribution of Federal, State, Tribal and Local Government to Broadband – due November 6.

To view the Reply Comments, go to www.usmayors.org/recovery/. The Conference’s Comments in the FCC National Broadband Plan Notice #7 – Contribution of Federal, State, Tribal and Local Government to Broadband will also be on the Conference of Mayors website when finalized.

The Recovery Act charged the FCC with creating a National Broadband Plan by February 17, 2010. The plan will explore broadband deployment, including the most effective and efficient ways to ensure broadband access for all Americans; strategies for achieving affordability and maximum utilization of broadband infrastructure and services; and how to use broadband to advance consumer welfare, civic participation, public safety and homeland security, community development, health care delivery, energy independence and efficiency, education, worker training, private sector investment, entrepreneurial activity, job creation, and economic growth, and other national purposes.