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FCC-2011-0395-0001

FCC-2011-0395-0001

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Published by markegould
The ruling has already been appealed, and will be tied up in the courts now, as the FCC writes, it’s intent is to preserve and reinforce Internet freedom, openness, access and transparency. Republicans, most of whom are against the ruling, label it as an “Obama takeover of the internet,” that would destroy economic growth. The rules pertain mostly to measures that would prevent any commercial entity from controlling traffic or content on the net.
The ruling has already been appealed, and will be tied up in the courts now, as the FCC writes, it’s intent is to preserve and reinforce Internet freedom, openness, access and transparency. Republicans, most of whom are against the ruling, label it as an “Obama takeover of the internet,” that would destroy economic growth. The rules pertain mostly to measures that would prevent any commercial entity from controlling traffic or content on the net.

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Published by: markegould on Oct 11, 2011
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59192
Federal Register
/Vol. 76, No. 185/Friday, September 23, 2011/Rules and Regulations
1
In this Order we use ‘‘broadband’’ and‘‘broadband Internet access service’’interchangeably, and ‘‘broadband provider’’ and‘‘broadband Internet access provider’’interchangeably. ‘‘End user’’ refers to anyindividual or entity that uses a broadband Internetaccess service; we sometimes use ‘‘subscriber’’ or‘‘consumer’’ to refer to those end users thatsubscribe to a particular broadband Internet accessservice. We use ‘‘edge provider’’ to refer to content,application, service, and device providers, becausethey generally operate at the edge rather than thecore of the network. These terms are not mutuallyexclusive.
FEDERAL COMMUNICATIONSCOMMISSION47 CFR Parts 0 and 8
[GN Docket No. 09–191; WC Docket No.07–52; FCC 10–201]
Preserving the Open Internet
AGENCY
:
Federal CommunicationsCommission.
ACTION
:
Final rule.
SUMMARY
:
This Report and Orderestablishes protections for broadbandservice to preserve and reinforceInternet freedom and openness. TheCommission adopts three basicprotections that are grounded in broadlyaccepted Internet norms, as well as ourown prior decisions. First, transparency:fixed and mobile broadband providersmust disclose the network managementpractices, performance characteristics,and commercial terms of their broadband services. Second, no blocking: fixed broadband providersmay not block lawful content,applications, services, or non-harmfuldevices; mobile broadband providersmay not block lawful Web sites, or blockapplications that compete with theirvoice or video telephony services.Third, no unreasonable discrimination:fixed broadband providers may notunreasonably discriminate intransmitting lawful network traffic.These rules, applied with thecomplementary principle of reasonablenetwork management, ensure that thefreedom and openness that haveenabled the Internet to flourish as anengine for creativity and commerce willcontinue. This framework thus providesgreater certainty and predictability toconsumers, innovators, investors, and broadband providers, as well as theflexibility providers need to effectivelymanage their networks. The frameworkpromotes a virtuous circle of innovationand investment in which new uses of the network—including new content,applications, services, and devices—lead to increased end-user demand for broadband, which drives networkimprovements that in turn lead tofurther innovative network uses.
DATES
:
Effective Date:
These rules areeffective November 20, 2011.
FOR FURTHER INFORMATION CONTACT
:
MattWarner, (202) 418–2419 or e-mail,
. 
SUPPLEMENTARY INFORMATION
:
This is asummary of the Commission’s Reportand Order (Order) in GN Docket No. 09–191, WC Docket No. 07–52, FCC 10–201,adopted December 21, 2010 andreleased December 23, 2010. Thecomplete text of this document isavailable on the Commission’s Web siteat
.It is also availablefor inspection and copying duringnormal business hours in the FCCReference Information Center, Portals II,445 12th Street, SW., Room CY–A257,Washington, DC 20554. This documentmay also be purchased from theCommission’s duplicating contractor,Best Copy and Printing, Inc., 445 12thStreet, SW., Room CY–B402,Washington, DC 20554, telephone (800)378–3160 or (202) 863–2893, facsimile(202) 863–2898, or via e-mail at
. 
Synopsis of the OrderI. Preserving the Free and OpenInternet
In this Order the Commission takes animportant step to preserve the Internetas an open platform for innovation,investment, job creation, economicgrowth, competition, and freeexpression. To provide greater clarityand certainty regarding the continuedfreedom and openness of the Internet,we adopt three basic rules that aregrounded in broadly accepted Internetnorms, as well as our own priordecisions:i.
Transparency.
Fixed and mobile broadband providers must disclose thenetwork management practices,performance characteristics, and termsand conditions of their broadbandservices;ii.
No blocking.
Fixed broadbandproviders may not block lawful content,applications, services, or non-harmfuldevices; mobile broadband providersmay not block lawful Web sites, or blockapplications that compete with theirvoice or video telephony services; andiii.
No unreasonable discrimination.
Fixed broadband providers may notunreasonably discriminate intransmitting lawful network traffic.We believe these rules, applied with thecomplementary principle of reasonablenetwork management, will empowerand protect consumers and innovatorswhile helping ensure that the Internetcontinues to flourish, with robustprivate investment and rapid innovationat both the core and the edge of thenetwork. This is consistent with theNational Broadband Plan goal of  broadband access that is ubiquitous andfast, promoting the globalcompetitiveness of the United States.In late 2009, we launched a publicprocess to determine whether and whatactions might be necessary to preservethe characteristics that have allowed theInternet to grow into an indispensableplatform supporting our nation’seconomy and civic life, and to fostercontinued investment in the physicalnetworks that enable the Internet. Sincethen, more than 100,000 commentershave provided written input.Commission staff held several publicworkshops and convened aTechnological Advisory Process withexperts from industry, academia, andconsumer advocacy groups to collecttheir views regarding key technicalissues related to Internet openness.This process has made clear that theInternet has thrived because of itsfreedom and openness—the absence of any gatekeeper blocking lawful uses of the network or picking winners andlosers online. Consumers andinnovators do not have to seekpermission before they use the Internetto launch new technologies, start businesses, connect with friends, orshare their views. The Internet is a levelplaying field. Consumers can make theirown choices about what applicationsand services to use and are free todecide what content they want toaccess, create, or share with others. Thisopenness promotes competition. It alsoenables a self-reinforcing cycle of investment and innovation in whichnew uses of the network lead toincreased adoption of broadband, whichdrives investment and improvements inthe network itself, which in turn lead tofurther innovative uses of the networkand further investment in content,applications, services, and devices. Acore goal of this Order is to foster andaccelerate this cycle of investment andinnovation.The record and our economic analysisdemonstrate, however, that theopenness of the Internet cannot be takenfor granted, and that it faces real threats.Indeed, we have seen broadbandproviders endanger the Internet’sopenness by blocking or degradingcontent and applications withoutdisclosing their practices to end usersand edge providers, notwithstanding theCommission’s adoption of open Internetprinciples in 2005.
1
In light of theseconsiderations, as well as the limitedchoices most consumers have for broadband service, broadband
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59193
Federal Register
/Vol. 76, No. 185/Friday, September 23, 2011/Rules and Regulations
2
The
Open Internet NPRM 
recast the
Internet Policy Statement 
principles as rules rather thanconsumer entitlements, but did not change the factthat protecting and empowering end users is acentral purpose of open Internet protections.
providers’ financial interests intelephony and pay television servicesthat may compete with online contentand services, and the economic andcivic benefits of maintaining an openand competitive platform for innovationand communication, the Commissionhas long recognized that certain basicstandards for broadband providerconduct are necessary to ensure theInternet’s continued openness. Therecord also establishes the widespread benefits of providing greater clarity inthis area—clarity that the Internet’sopenness will continue, that there is aforum and procedure for resolvingalleged open Internet violations, andthat broadband providers mayreasonably manage their networks andinnovate with respect to networktechnologies and business models. Weexpect the costs of compliance with ourprophylactic rules to be small, as theyincorporate longstanding opennessprinciples that are generally in line withcurrent practices and with normsendorsed by many broadband providers.Conversely, the harms of open Internetviolations may be substantial, costly,and in some cases potentiallyirreversible.The rules we proposed in the
OpenInternet NPRM 
and those we adopt inthis Order follow directly from theCommission’s bipartisan
Internet Policy Statement,
adopted unanimously in2005 and made temporarily enforceablefor certain broadband providers in 2005and 2007; openness protections theCommission established in 2007 forusers of certain wireless spectrum; anda notice of inquiry in 2007 that asked,among other things, whether theCommission should add a principle of nondiscrimination to the
Internet Policy Statement 
. Our rules build upon theseactions, first and foremost by requiring broadband providers to be transparentin their network management practices,so that end users can make informedchoices and innovators can develop,market, and maintain Internet-basedofferings. The rules also prevent certainforms of blocking and discriminationwith respect to content, applications,services, and devices that depend on orconnect to the Internet.An open, robust, and well-functioningInternet requires that broadbandproviders have the flexibility toreasonably manage their networks.Network management practices arereasonable if they are appropriate andtailored to achieving a legitimatenetwork management purpose.Transparency and end-user control aretouchstones of reasonableness.We recognize that broadbandproviders may offer other services overthe same last-mile connections used toprovide broadband service. These‘‘specialized services’’ can benefit endusers and spur investment, but they mayalso present risks to the open Internet.We will closely monitor specializedservices and their effects on broadbandservice to ensure, through all availablemechanisms, that they supplement butdo not supplant the open Internet.Mobile broadband is at an earlierstage in its development than fixed broadband and is evolving rapidly. Forthat and other reasons discussed below,we conclude that it is appropriate at thistime to take measured steps in this area.Accordingly, we require mobile broadband providers to comply with thetransparency rule, which includesenforceable disclosure obligationsregarding device and applicationcertification and approval processes; weprohibit providers from blocking lawfulWeb sites; and we prohibit providersfrom blocking applications that competewith providers’ voice and videotelephony services. We will closelymonitor the development of the mobile broadband market and will adjust theframework we adopt in this Order asappropriate.These rules are within ourjurisdiction over interstate and foreigncommunications by wire and radio.Further, they implement specificstatutory mandates in theCommunications Act (‘‘Act’’) and theTelecommunications Act of 1996 (‘‘1996Act’’), including provisions that directthe Commission to promote Internetinvestment and to protect and promotevoice, video, and audio communicationsservices.The framework we adopt aims toensure the Internet remains an openplatform—one characterized by freemarkets and free speech—that enablesconsumer choice, end-user control,competition through low barriers toentry, and the freedom to innovatewithout permission. The frameworkdoes so by protecting openness throughhigh-level rules, while maintaining broadband providers’ and theCommission’s flexibility to adapt tochanges in the market and in technologyas the Internet continues to evolve.
II. The Need for Open InternetProtections
In the
Open Internet NPRM 
(FCC 09–93 published at 74 FR 62638, November30, 2009), we sought comment on the best means for preserving andpromoting a free and open Internet. Wenoted the near-unanimous view that theInternet’s openness and thetransparency of its protocols have beencritical to its unparalleled success.Citing evidence of broadband providerscovertly blocking or degrading Internettraffic, and concern that broadbandproviders have the incentive and abilityto expand those practices in the nearfuture, we sought comment onprophylactic rules designed to preservethe Internet’s prevailing norms of openness. Specifically, we soughtcomment on whether the Commissionshould codify the four principles statedin the
Internet Policy Statement,
plusproposed nondiscrimination andtransparency rules, all subject toreasonable network management.
2
 Commenters agree that the openInternet is an important platform forinnovation, investment, competition,and free expression, but disagree aboutwhether there is a need for theCommission to take action to preserveits openness. Commenters who favorCommission action emphasize the riskof harmful conduct by broadbandproviders, and stress that failing to actcould result in irreversible damage tothe Internet. Those who favor inactioncontend that the Internet generally isopen today and is likely to remain so,and express concern that rules aimed atpreventing harms may themselvesimpose significant costs. In this part, weassess these conflicting views. Weconclude that the benefits of ensuringInternet openness through enforceable,high-level, prophylactic rules outweighthe costs. The harms that could resultfrom threats to openness are significantand likely irreversible, while the costsof compliance with our rules should besmall, in large part because the rulesappear to be consistent with currentindustry practices. The rules arecarefully calibrated to preserve the benefits of the open Internet andincrease certainty for all Internetstakeholders, with minimal burden on broadband providers.
A. The Internet’s Openness PromotesInnovation, Investment, Competition,Free Expression, and Other National Broadband Goals
Like electricity and the computer, theInternet is a ‘‘general purposetechnology’’ that enables new methodsof production that have a major impacton the entire economy. The Internet’sfounders intentionally built a networkthat is open, in the sense that it has nogatekeepers limiting innovation and
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59194
Federal Register
/Vol. 76, No. 185/Friday, September 23, 2011/Rules and Regulations
3
The Internet’s openness is supported by an‘‘end-to-end’’ network architecture that wasformulated and debated in standard-settingorganizations and foundational documents.
See,e.g.,
WCB Letter 12/10/10, Attach. at 17–29, VintonG. Cerf & Robert E. Kahn,
A Protocol for Packet Network Interconnection,
COM–22 IEEETransactions of Commc’ns Tech. 637–48 (1974);WCB Letter 12/10/10, Attach. at 30–39, J.H. Saltzer
et al., End to End Arguments in System Design,
Second Int’l Conf. on Distributed ComputingSystems, 509–12 (1981); WCB Letter 12/10/10,Attach. at 49–55, B. Carpenter, Internet EngineeringTask Force (‘‘IETF’’),
Architectural Principles of theInternet,
RFC 1958, 1–8 (June 1996),
Lawrence Roberts,
Multiple Computer Networks and Intercomputer Communication,
ACM Symposium on OperationSystem Principles (1967). Under the end-to-endprinciple, devices in the middle of the network arenot optimized for the handling of any particularapplication, while devices at network endpointsperform the functions necessary to supportnetworked applications and services.
See generally 
WCB Letter 12/10/10, Attach. at 40–48, J. Kempf &R. Austein, IETF,
The Rise of the Middle and theFuture of End-to-End: Reflections on the Evolutionof the Internet Architecture,
RFC 3724, 1–14 (March2004),
 ftp://ftp.rfc-editor.org/in-notes/rfc3724.txt 
.
4
Business-to-consumer e-commerce wasestimated to total $135 billion in 2009.
See
WCBLetter 12/10/10, Attach. at 81–180, Robert D.Atkinson
et al., The Internet Economy 25 YearsAfter.com,
Info. Tech. & Innovation Found., at 24(March 2010),
. 
5
The advertising-supported Internet sustainsabout $300 billion of U.S. GDP.
See
GoogleComments at 7.
6
We note that broadband providers can also beedge providers.
7
For example, the increasing availability of multimedia applications on the World Wide Webduring the 1990s was one factor that helped createdemand for residential broadband services. Internetservice providers responded by adopting newnetwork infrastructure, modem technologies, andnetwork protocols, and marketed broadband toresidential customers.
See, e.g.,
WCB Letter 12/13/10, Attach. at 250–72, Chetan Sharma,
Managing Growth and Profits in the Yottabyte Era
(2009),
(Yottabyte). By the late 1990s, a residential end usercould download content at speeds not achievableeven on the Internet backbone during the 1980s.
See, e.g.,
WCB Letter 12/13/10, Attach. at 226–32,Susan Harris & Elise Gerich,
The NSFNET Backbone Service: Chronicling the End of an Era,
10 ConneXions (April 1996),
.Higher speeds and broadband’s ‘‘always on’’ capability, in turn,stimulated more innovation in applications, fromgaming to video streaming, which in turnencouraged broadband providers to increasenetwork speeds. WCB Letter 12/13/10, Attach. at233–34, Link Hoewing,
Twitter, Broadband and Innovation,
PolicyBlog, Dec. 4, 2010,
 policyblog.verizon.com/BlogPost/626/ TwitterBroadbandandInnovation.aspx.
8
See
WCB Letter 12/10/10, Attach. at 133–41,Pew Research Ctr. for People and the Press,Americans Spend More Time Following the News;Ideological News Sources: Who Watches and Why17, 22 (Sept. 12, 2010),
 people-press.org/report/652/ 
(stating that ‘‘44% of Americans say they got newsthrough one or more Internet or mobile digitalsource yesterday’’); WCB Letter 12/10/10, Attach. at131–32, TVB Local Media Marketing Solutions,Local News: Local TV Stations are the Top DailyNews Source,
(estimating that 61% of Americans get newsfrom the Internet) (‘‘
TVB
’’). However, according tothe Pew Project for Excellence in Journalism, themajority of news that people access onlineoriginates from legacy media.
See
Pew Project forExcellence in Journalism, The State of the NewsMedia: An Annual Report on American Journalism(2010),
(‘‘Of news sites withhalf a million visitors a month (or the top 199 newssites once consulting, government and informationdata bases are removed), 67% are from legacymedia, most of them (48%) newspapers.’’).
communication through the network.
3
 Accordingly, the Internet enables an enduser to access the content andapplications of her choice, withoutrequiring permission from broadbandproviders. This architecture enablesinnovators to create and offer newapplications and services withoutneeding approval from any controllingentity, be it a network provider,equipment manufacturer, industry body,or government agency. End users benefit because the Internet’s openness allowsnew technologies to be developed anddistributed by a broad range of sources,not just by the companies that operatethe network. For example, Sir TimBerners-Lee was able to invent theWorld Wide Web nearly two decadesafter engineers developed the Internet’soriginal protocols, without needingchanges to those protocols or anyapproval from network operators.Startups and small businesses benefit because the Internet’s openness enablesanyone connected to the network toreach and do business with anyone else,allowing even the smallest and mostremotely located businesses to accessnational and global markets, andcontribute to the economy throughe-commerce
4
and online advertising.
5
 Because Internet openness enableswidespread innovation and allows allend users and edge providers (ratherthan just the significantly smallernumber of broadband providers) tocreate and determine the success orfailure of content, applications, services,and devices, it maximizes commercialand non-commercial innovations thataddress key national challenges—including improvements in health care,education, and energy efficiency that benefit our economy and civic life.The Internet’s openness is critical tothese outcomes, because it enables avirtuous circle of innovation in whichnew uses of the network—includingnew content, applications, services, anddevices—lead to increased end-userdemand for broadband, which drivesnetwork improvements, which in turnlead to further innovative network uses.Novel, improved, or lower-cost offeringsintroduced by content, application,service, and device providers spur end-user demand and encourage broadbandproviders to expand their networks andinvest in new broadband technologies.
6
 Streaming video and e-commerceapplications, for instance, have led tomajor network improvements such asfiber to the premises, VDSL, andDOCSIS 3.0. These networkimprovements generate newopportunities for edge providers,spurring them to innovate further.
7
Eachround of innovation increases the valueof the Internet for broadband providers,edge providers, online businesses, andconsumers. Continued operation of thisvirtuous circle, however, depends uponlow barriers to innovation and entry byedge providers, which drive end-userdemand. Restricting edge providers’ability to reach end users, and limitingend users’ ability to choose which edgeproviders to patronize, would reducethe rate of innovation at the edge and,in turn, the likely rate of improvementsto network infrastructure. Similarly,restricting the ability of broadbandproviders to put the network toinnovative uses may reduce the rate of improvements to network infrastructure.Openness also is essential to theInternet’s role as a platform for speechand civic engagement. An informedelectorate is critical to the health of afunctioning democracy, and Congresshas recognized that the Internet ‘‘offer[s]a forum for a true diversity of politicaldiscourse, unique opportunities forcultural development, and myriadavenues for intellectual activity.’’ Due tothe lack of gatekeeper control, theInternet has become a major source of news and information, which forms the basis for informed civic discourse. ManyAmericans now turn to the Internet toobtain news,
8
and its openness makes itan unrivaled forum for free expression.Furthermore, local, State, and Federalgovernment agencies are increasinglyusing the Internet to communicate withthe public, including to provideinformation about and deliver essentialservices.Television and radio broadcastersnow provide news and otherinformation online via their own Websites, online aggregation Web sites suchas Hulu, and social networkingplatforms. Local broadcasters areexperimenting with new approaches todelivering original content, for example by creating neighborhood-focused Websites; delivering news clips via onlinevideo programming aggregators,including AOL and Google’s YouTube;and offering news from citizenjournalists. In addition, broadcastnetworks license their full-lengthentertainment programs fordownloading or streaming to edgeproviders such as Netflix and Apple.
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