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Preserving the Open Internet

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Released: May 9, 2012
Federal Communications Commission
Washington, D.C. 20554
May 9, 2012

DA 12-740

Small Entity Compliance Guide

Preserving the Open Internet; Broadband Industry Practices

FCC 10-201
GN Docket No. 09-191
WC Docket No. 07-52
Released: December 23, 2010

This Guide is prepared in accordance with the requirements of Section 212 of
the Small Business Regulatory Enforcement Fairness Act of 1996. It is intended
to help small entities—small businesses, small organizations (non-profits), and
small governmental jurisdictions—comply with the new rules adopted in the
above-referenced FCC rulemaking docket(s). This Guide is not intended to
replace the rules and, therefore, final authority rests solely with the rules.
Although we have attempted to cover all parts of the rules that might be
especially important to small entities, the coverage may not be exhaustive. This
Guide may, perhaps, not apply in a particular situation based upon the
circumstances, and the FCC retains the discretion to adopt approaches on a
case-by-case basis that may differ from this Guide, where appropriate. Any
decisions regarding a particular small entity will be based on the statute and
regulations.

In any civil or administrative action against a small entity for a violation of
rules, the content of the Small Entity Compliance Guide may be considered as
evidence of the reasonableness or appropriateness of proposed fines, penalties or
damages. Interested parties are free to file comments regarding this Guide and
the appropriateness of its application to a particular situation; the FCC will
consider whether the recommendations or interpretations in the Guide are
appropriate in that situation. The FCC may decide to revise this Guide without
public notice to reflect changes in the FCC’s approach to implementing a rule,
or to clarify or update the text of the Guide. Direct your comments and
recommendations, or calls for further assistance, to the FCC’s Consumer
Center:

1-888-CALL-FCC (1-888-225-5322)

TTY: 1-888-TELL-FCC (1-888-835-5322)

Fax: 202-418-0232

fccinfo@fcc.gov

I.
BACKGROUND .............................................................................................................................1
II.
DEFINITIONS ................................................................................................................................ 2
III.
OBJECTIVES OF THE PROCEEDING ......................................................................................... 2
IV.
RULES............................................................................................................................................. 2
V.
COMPLIANCE REQUIREMENTS................................................................................................ 5
VI.
EFFECTIVE DATE......................................................................................................................... 7
VII.
WEBLINKS ..................................................................................................................................... 7
I.
BACKGROUND
In 2009, the Commission launched a public process to determine whether and what actions might be
necessary to preserve the characteristics that have allowed the Internet to grow into an indispensable
platform supporting our nation’s economy and civic life, and to foster continued investment in the
physical networks that enable the Internet. These rules were developed following a public
rulemaking process that included input from more than 100,000 individuals and organizations and
several public workshops.
This process made clear that the Internet has thrived because of its freedom and openness—the
absence of any gatekeeper blocking lawful uses of the network or picking winners and losers online.
Consumers and innovators do not have to seek permission before they use the Internet to launch new
technologies, start businesses, connect with friends, or share their views.
The Internet is a level playing field. Consumers can make their own choices about what applications
and services to use and are free to decide what content they want to access, create, or share with
others. This openness promotes competition. It also enables a self-reinforcing cycle of investment
and innovation in which new uses of the network lead to increased adoption of broadband, which
drives investment and improvements in the network itself, which in turn lead to further innovative
uses of the network and further investment in content, applications, services, and devices. A core
goal of the Open Internet Order is to foster and accelerate this cycle of investment and innovation.
The record and the Commission’s economic analysis demonstrated, however, that the openness of the
Internet cannot be taken for granted, and that it faces real threats. Broadband providers have
endangered the Internet’s openness by blocking or degrading content and applications without
disclosing their practices to end users and edge providers (i.e., providers of content, applications,
services, and devices), notwithstanding the Commission’s adoption of open Internet principles in
2005. The record also established the widespread benefits of providing greater clarity in this area:
clarity that the Internet’s openness will continue; that there is a forum and procedure for resolving
alleged open Internet violations; and that broadband providers may reasonably manage their
networks. In light of these considerations, the Commission has long recognized that certain basic
standards for broadband provider conduct are necessary to ensure the Internet’s continued openness.
1

II. DEFINITIONS
Ø

Broadband Internet access service

. A mass-market retail service by wire or radio that provides
the capability to transmit data to and receive data from all or substantially all Internet endpoints,
including any capabilities that are incidental to and enable the operation of the communications
service, but excluding dial-up Internet access service. This term also encompasses any service
that the Commission finds to be providing a functional equivalent of the service described in the
previous sentence, or that is used to evade the protections set forth in this Part. [47 C.F.R. §
8.11(a)]

Ø

Fixed broadband Internet access service

. A broadband Internet access service that serves end
users primarily at fixed endpoints using stationary equipment. Fixed broadband Internet access
service includes fixed wireless services (including fixed unlicensed wireless services), and fixed
satellite services. [47 C.F.R. § 8.11(b)]
Ø

Mobile broadband Internet access service

. A broadband Internet access service that serves end
users primarily using mobile stations. [47 C.F.R. § 8.11(c)]
Ø

Reasonable network management

. A network management practice is reasonable if it is
appropriate and tailored to achieving a legitimate network management purpose, taking into
account the particular network architecture and technology of the broadband Internet access
service. [47 C.F.R. § 8.11(d)]
III. OBJECTIVES OF THE PROCEEDING
The purpose of the Open Internet Order is to create a framework that aims to ensure the Internet will
remain an open platform, characterized by free markets and free speech. The rules facilitate
consumer choice, end-user control, competition through low barriers to entry, and the freedom to
innovate without permission. [47 C.F.R. § 8.1]
The rules aim to ensure that Internet openness will continue, providing greater certainty to consumers,
innovators, investors, and broadband providers, including the flexibility providers need to effectively
manage their networks.
IV. RULES
Ø

Scope of the Rules

The Open Internet rules apply to broadband Internet access services, including fixed services and
mobile services. Because mobile broadband is at an earlier-stage platform than fixed broadband
and is rapidly evolving, the Commission found it appropriate to apply only the transparency rule
and part of the no blocking rule to providers of mobile broadband, as described in the next part
below. [See also 47 C.F.R. §§ 8.3, 8.5, 8.7]
The term “broadband Internet access service” encompasses any service that the Commission finds
to be providing a functional equivalent of the service as defined in our rules or that is used to
evade the protections set forth in these rules. (See section II above; 47 C.F.R. § 8.11(a).) The
rules do not apply to edge provider activities such as the provision of content or applications over
the Internet. The rules also do not apply to coffee shops, bookstores, airlines, and other entities
2

when they acquire Internet service from a broadband provider to enable their patrons to access the
Internet from their establishments. (Open Internet Order para. 52)
Ø

Transparency, No Blocking, and No Unreasonable Discrimination

The three basic rules adopted by the Commission—which are grounded in broadly accepted
Internet norms and prior Commission decisions—provide greater clarity and certainty regarding
the continued freedom and openness of the Internet. Applied with the principle of reasonable
network management, the rules empower and protect consumers and innovators while helping
ensure that the Internet continues to flourish:
1. Transparency [47 C.F.R. § 8.3]
A person engaged in the provision of broadband Internet access service shall publicly
disclose accurate information regarding the network management practices, performance,
and commercial terms of its broadband Internet access services sufficient for consumers
to make informed choices regarding use of such services and for content, application,
service, and device providers to develop, market, and maintain Internet offerings.
This rule applies to both fixed and mobile broadband Internet access providers.
2. No Blocking [47 C.F.R. § 8.5]
Fixed services: A person engaged in the provision of fixed broadband Internet access
service, insofar as such person is so engaged, shall not block lawful content, applications,
services, or non-harmful devices, subject to reasonable network management.
Mobile services: A person engaged in the provision of mobile broadband Internet access
service, insofar as such person is so engaged, shall not block consumers from accessing
lawful websites, subject to reasonable network management; nor shall such person block
applications that compete with the provider’s voice or video telephony services, subject
to reasonable network management.
3. No Unreasonable Discrimination [47 C.F.R. § 8.7]
Fixed services: A person engaged in the provision of fixed broadband Internet access
service, insofar as such person is so engaged, shall not unreasonably discriminate in
transmitting lawful network traffic over a consumer’s broadband Internet access service.
Reasonable network management shall not constitute unreasonable discrimination.
Mobile services: This rule does not apply to mobile services.
Ø

Reasonable Network Management

In order to preserve an open, robust, and well-functioning Internet, broadband providers must
have the flexibility to reasonably manage their networks. A network management practice is
reasonable if it is appropriate and tailored to achieving a legitimate network management
purpose, taking into account the particular network architecture and technology of the broadband
Internet access service.
3

The rules against blocking and unreasonable discrimination are subject to reasonable network
management, meaning that discrimination by a broadband provider that constitutes “reasonable
network management” is “reasonable” discrimination.
Small entities are thus subject to the following reasonable management practice standards:
1. Broadband providers may employ network management practices that are appropriate
and tailored to the network management purpose they seek to achieve, but they need not
necessarily employ the most narrowly tailored practice theoretically available to them.
2. Legitimate network management purposes include:
·
Ensuring network security and integrity, including by addressing traffic that is
harmful to the network;
·
Addressing traffic that is unwanted by end users (including by premise operators),
such as by providing services or capabilities consistent with an end user’s choices
regarding parental controls or security capabilities; and
·
Reducing or mitigating the effects of congestion on its network.
3. The rules do not impose affirmative obligations dealing with unlawful content or the
unlawful transfer of content. A broadband provider is not prevented or restricted from
refusing to transmit material such as child pornography.
4. The rules protect only devices that do not harm the network and only require fixed
broadband service providers to allow devices that conform to publicly available industry
standards applicable to the providers’ services.
5. The disclosure requirement does not require broadband providers to disclose
competitively sensitive information or information that would undermine the efficacy of
reasonable network management practices.
Ø

Specialized Services

The rules do not prevent broadband providers from offering specialized services, such as
facilities-based VoIP, which share capacity with broadband Internet access service over
providers’ last-mile facilities. In the Open Internet Order, the Commission indicated that it
would be concerned about any marketing, advertising, or other messaging by broadband
providers suggesting that one or more specialized services, taken alone or together, and not
provided in accordance with the open Internet rules, is “Internet” service or a substitute for
broadband Internet access service. The Commission also promised to monitor the potential for
anticompetitive or otherwise harmful effects from specialized services, including from any
arrangements a broadband provider may seek to enter into with third parties to offer such
services.
4

Ø

Other Laws and Considerations

1. Emergency Communications and Law Enforcement, Public Safety, and

National Security Authorities

The Open Internet rules do not supersede any obligation or authorization a
provider of broadband Internet access service may have to address the needs of
emergency communications or law enforcement, public safety, or national
security authorities, consistent with or as permitted by applicable law, or limits
the provider’s ability to do so.
2. Unlawful Transfers of Content
The Open Internet rules do not prohibit reasonable efforts by a provider of
broadband Internet access service to address copyright infringement or other
unlawful activity.
Open Internet rules protect only lawful content, and are not intended to inhibit
efforts by broadband providers to address unlawful transfers of content.
V. COMPLIANCE REQUIREMENTS
Ø

Reporting, Recordkeeping, and Other Transparency Requirements for Small Entities

The transparency rule gives broadband providers some flexibility to determine what information
to disclose and how to disclose it. The rule does not require public disclosure of competitively
sensitive information or information that would compromise network security or undermine the
efficacy of reasonable network management practices. The rule also does not require that
providers bear the cost of printing and distributing bill inserts or other paper documents to all
existing customers.
The Open Internet Order simply requires that broadband providers, at a minimum, prominently
display or provide links to disclosures on a publicly available, easily accessible website that is
available to current and prospective end users and edge providers as well as to the Commission,
and that they disclose relevant information at the point of sale. Effective disclosures include
some or all of the following types of information:
1. Network Practices
Congestion Management. If applicable, descriptions of congestion management
practices; types of traffic subject to practices; purposes served by practices; practices’
effects on end users’ experience; criteria used in practices, such as indicators of
congestion that trigger a practice, and the typical frequency of congestion; usage limits
and the consequences of exceeding them; and references to engineering standards, where
appropriate.
Application-Specific Behavior. If applicable, whether and why the provider blocks or
rate-controls specific protocols or protocol ports, modifies protocol fields in ways not
5

prescribed by the protocol standard, or otherwise inhibits or favors certain applications or
classes of applications.
Device Attachment Rules. If applicable, any restrictions on the types of devices and any
approval procedures for devices to connect to the network.
Security. If applicable, practices used to ensure end-user security or security of the
network, including types of triggering conditions that cause a mechanism to be invoked
(but excluding information that could reasonably be used to circumvent network
security).
2. Performance Characteristics
Service Description. A general description of the service, including the service
technology, expected and actual access speed and latency, and the suitability of the
service for real-time applications.
Impact of Specialized Services. If applicable, what specialized services, if any, are
offered to end users, and whether and how any specialized services may affect the last-
mile capacity available for, and the performance of, broadband Internet access service.
3. Commercial Terms
Pricing. For example, monthly prices, usage-based fees, and fees for early termination or
additional network services.
Privacy Policies. For example, whether network management practices entail inspection
of network traffic, and whether traffic information is stored, provided to third parties, or
used by the carrier for non-network management purposes.
Redress Options. Practices for resolving end-user and edge provider complaints and
questions.
This list is not necessarily exhaustive, nor is it a safe harbor. There may be additional disclosures
necessary for a particular broadband provider to comply with the rule in light of the relevant
circumstances. The Commission anticipated that broadband providers may be able to satisfy the
transparency rule through a single disclosure, and therefore did not require multiple disclosures
targeted at different audiences. But the Commission expects that broadband providers will make
disclosures in a manner accessible by people with disabilities.
Ø

No Blocking

The no-blocking rule bars broadband providers from impairing or degrading particular content,
applications, services, or non-harmful devices so as to render them effectively unusable (subject
to reasonable network management). The Commission has recognized that in some
circumstances the distinction between blocking and degrading (such as by delaying) traffic is
merely “semantic.” Moreover, to the extent that a content, application, or service provider could
avoid being blocked only by paying a fee, charging such a fee would not be permissible under
these rules.
6

Ø

Unreasonable Discrimination

Differential treatment of traffic is more likely to be reasonable the more transparent to the end
user that treatment is.
Enabling end users to choose among different broadband offerings based on such factors as
assured data rates and reliability, or to select quality-of-service enhancements on their own
connections for traffic of their choosing, would be unlikely to violate the no unreasonable
discrimination rule, provided the broadband provider’s offerings were fully disclosed and were
not harmful to competition or end users.
Differential treatment of traffic that does not discriminate among specific uses of the network or
classes of uses is likely reasonable. For example, during periods of congestion a broadband
provider could provide more bandwidth to subscribers that have used the network less over some
preceding period of time than to heavier users. Use-agnostic discrimination (sometimes referred
to as application-agnostic discrimination) is consistent with Internet openness because it does not
interfere with end users’ choices about which content, applications, services, or devices to use.
Nor does it distort competition among edge providers.
The conformity or lack of conformity of a practice with best practices and technical standards
adopted by open, broadly representative, and independent internet engineering, governance
initiatives, or standards-setting organizations is another factor to be considered in evaluating
reasonableness.
It is unlikely that pay for priority—a commercial arrangement between a broadband provider and
a third party to directly or indirectly favor some traffic over other traffic in the broadband Internet
access service connection to a subscriber of the broadband provider—would satisfy the “no
unreasonable discrimination” standard.
VI. EFFECTIVE DATE
November 20, 2011.
VII. WEBLINKS
Preserving the Open Internet, GN Docket No. 09-191, WC Docket No. 07-52, Report and Order,
25 FCC Rcd 17905 (2010), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-
10-201A1_Rcd.pdf.
Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, CC
Docket Nos. 02-33, 01-337, 95-20, 98-10, GN Docket No. 00-185, CS Docket No. 02-52, Policy
Statement, 20 FCC Rcd 14986 (2005), available at
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-05-151A1.pdf.
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