Nine months after they were passed by the FCC in a party-line vote, the new rules promoting internet freedom are now officially on the books and will go into effect on November 20. Given that the conservative media have spent those nine months poisoning the internet freedom debate with false, hysterical, and conspiratorial claims, it’s worthwhile to take a look at the rules and explain exactly what they mean.
The new policy is aimed primarily at fixed broadband providers — companies that provide internet access over cables — and mandates the following:
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 nonharmful devices, subject to reasonable network management.
What this means is that if you provide internet access, you can not determine the type of content your customers can access or the device by which they access it (assuming both the content and the device are legal). Simply put, if you want to access Netflix on your Dell laptop, they can’t stop you from doing that.
ISPs are allowed to regulate access in cases of “reasonable network management” (which could be anything from relieving network congestion to security issues) but are required to publicly disclose whatever steps they take towards that end.
Moving on, the rules state:
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.
Whereas the previous rule dealt with types of content, this one deals with the speed at which content can be accessed, and is a bit trickier to unpack.
The FCC is attempting to strike a balance between how ISPs manage their networks and how consumers use them: basically, if you are a heavy consumer of data, the ISP has the right to charge you more. Consumers can choose to have more data made available or to have certain content prioritized by the ISP, but the ISP has to be transparent about those offerings and make alternatives available.
It’s a recognition that bandwidth is not unlimited and ISPs have to manage congestion on their networks. The idea is that if ISPs are up front about this from the get-go and offer alternative options for access, then consumers can tailor their data usage needs accordingly. The rules also allow for what’s known as “use-agnostic discrimination,” meaning that ISPs can restrict bandwidth to heavy users during periods of congestion.
In terms of content, the rule disallows ISPs from discriminating against or in favor of certain forms of content based on political or financial considerations. This means they can’t slow traffic to a specific website because they disagree with that website’s message, nor can they enter into financial arrangements with third parties to favor certain forms of content over others. Such actions, say the FCC, would qualify as “unreasonable discrimination.”
As noted above, though, these rules apply only to fixed broadband providers. The FCC begs off applying similar rules to mobile broadband providers, saying that the wireless internet landscape is too nascent, turbulent, and functionally distinct from fixed internet for the same rules to apply.
For mobile broadband, the FCC states:
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.
This is essentially the same restriction on content blocking put in place for fixed providers, with a special addition for communications apps. Essentially, if you have an iPhone through AT&T, then AT&T can’t prevent you from accessing legal web content or from downloading the Skype app onto your phone. (AT&T is not required to make Skype available to you in its app store.)
There is, however, no “unreasonable discrimination” rule for mobile broadband. The FCC says that it wants to “proceed incrementally with respect to mobile broadband,” and “better understand how the mobile broadband market is developing before determining whether adjustments to this framework are necessary.”