Last week the FCC released its much-awaited Notice of Proposed Rulemaking (NPRM) on network neutrality. As expected, the NPRM affirms past FCC neutrality principles, and adds two more. Here’s the key language:
1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.
2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user’s choice.
3. Subject to reasonable network management, a provider of broadband Internet access service may not 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.
4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers.
5. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.
6. Subject to reasonable network management, a provider of broadband Internet access service must 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 part.
That’s a lot of policy packed into (relatively) few words. I expect that my colleagues and I will have a lot to say about these seemingly simple rules over the coming weeks.
Today I want to focus on the all-purpose exception for “reasonable network management”. Unpacking this term might tell us a lot about how the proposed rule would operate.
Here’s what the NPRM says:
Reasonable network management consists of: (a) reasonable practices employed by a provider of broadband Internet access to (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (ii) address traffic that is unwanted by users or harmful; (iii) prevent the transfer of unlawful content; or (iv) prevent the unlawful transfer of content; and (b) other reasonable network management practices.
The key word is “reasonable”, and in that respect the definition is nearly circular: in order to be “reasonable”, a network management practice must be (a) “reasonable” and directed toward certain specific ends, or (b) “reasonable”.
In the FCC’s defense, it does seek comments and suggestions on what the definition should be, and it does say that it intends to make case-by-case determinations in practice, as it did in the Comcast matter. Further, it rejects a “strict scrutiny” standard of the sort that David Robinson rightly criticized in a previous post.
“Reasonable” is hard to define because in real life every “network management” measure will have tradeoffs. For example, a measure intended to block copyright-infringing material would in practice make errors in both directions: it would block X% (less than 100%) of infringing material, while as a side-effect also blocking Y% (more than 0%) of non-infringing material. For what values of X and Y is such a measure “reasonable”? We don’t know.
Of course, declaring a vague standard rather than a bright-line rule can sometimes be good policy, especially where the facts on the ground are changing rapidly and it’s hard to predict what kind of details might turn out to be important in a dispute. Still, by choosing a case-by-case approach, the FCC is leaving us mostly in the dark about where it will draw the line between “reasonable” and “unreasonable”.
The blank check here is “(iii) prevent the transfer of unlawful content”. Recall that the feds are already arguing in the Lori Drew case that any material violating anyone’s Terms of Service is a violation of federal law. That means that any blocking or degradation is permitted as long as the ISP drops a (hidden, unreadable) note into its (hidden, unreadable) ToS forbidding any superset of that material.
For instance, if Comcast simply buried in its ToS that, eg, “users shall not access certain Dangerous Sites, such Dangerous Sites being identified by Comcast at its sole discretion” then it could block anything it cared to as “unlawful content” and still claim RNM.
Nah. Because the TOS is subject to its own legal regime, and a blanket “Thou Shalt not Access What We Tell You Not To” wouldn’t even have gotten past the previous administration’s FTC.
I think a vague rule is pretty much a necessity in an area like this, where technological change moves as fast as you can push new firmware out to your routers. Any bright-line rule would be an invitation to measures that complied with whatever its letter might be while utterly violating its spirit.
I would take the position that to cover the sorts of abuses that many (including myself) are worried about, it doesn’t matter too much what the word “reasonable” means in this context. These issues have little overlap with network management.
For example, suppose my ISP, Time Warner Cable, decides that it wants to coerce me into using their phone service, instead of Vonage’s. What they could do (and some ISPs may indeed have done) is favor their own traffic over Vonage’s. One quite simple possibility is to charge customers for all bandwidth going over their connection, but not count the VOIP traffic of their own phone service. (I believe TW actually has proposed this.)
If I am reading it right. this sort of game would be ruled out by bullet point 5. There’s no way even to cast this as a network management issue.
Is it possible that there are some borderline cases that could come up? Sure. They could quietly degrade the performance of a connection to Vonage. If they got caught, they could make some argument about network management. It would then be for the FCC and the lawyers to see what was really going on.
But the most tempting sorts of behaviors, such as “partnering” with some internet players and favoring them, or charging for “premium” access to their audience, would get much harder to do.