Further Inquiry Into Two Under-Developed Issues in the Open Internet Proceeding, 55297-55300 [2010-22629]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 75, Number 175 (Friday, September 10, 2010)]
[Proposed Rules]
[Pages 55297-55300]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-22629]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[GN Docket No. 09-191; WC Docket No. 07-52; DA 10-1667]


Further Inquiry Into Two Under-Developed Issues in the Open 
Internet Proceeding

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission's Wireline Competition and 
Wireless Telecommunications Bureaus (collectively, the Bureaus) seek 
comment on two issues in the open Internet proceeding that merit 
further development. The first issue is the relationship between open 
Internet protections and services that are provided over the same last-
mile facilities as broadband Internet access service (commonly called 
``managed'' or ``specialized'' services). The second is the application 
of open Internet rules to mobile wireless Internet access services, 
which have unique characteristics related to technology, associated 
application and device markets, and consumer usage. The intended effect 
is to develop a more detailed record in the Open Internet proceeding.

DATES: Comments are due on or before October 12, 2010 and reply 
comments are due on or before November 4, 2010.

ADDRESSES: You may submit comments, identified by GN Docket No. 09-191 
and WC Docket No. 07-52, by any of the following methods:
     Federal Communications Commission's Web Site: https://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     E-mail ecfs@fcc.gov, and include the following words in 
the body of the message: ``get form.'' A sample form and directions 
will be sent in response. Include the docket numbers in the subject 
line of the message.
     Mail: Secretary, Federal Communications Commission, 445 
12th Street, SW., Washington, DC 20554.
     Hand Delivery/Courier: Secretary, Federal Communications 
Commission, 445 12th Street, SW., Washington, DC 20554.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail

[[Page 55298]]

and Priority Mail): 9300 East Hampton Drive, Capitol Heights, MD 20743.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: William Kehoe, Competition Policy 
Division, Wireline Competition Bureau, at 202-418-1580 or 
william.kehoe@fcc.gov, or John Spencer, Broadband Division, Wireless 
Telecommunications Bureau, at 202-418-2487 or john.spencer@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Bureaus' Public 
Notice in GN Docket No. 09-191 and WC Docket No. 07-52, DA 10-1667, 
released on September 1, 2010. The Notice of Proposed Rulemaking 
initiating this proceeding, Preserving the Open Internet; Broadband 
Industry Practices, GN Docket No. 09-191, WC Docket No. 07-52, Notice 
of Proposed Rulemaking, 74 FR 62638, November 30, 2009 (Open Internet 
NPRM) addressed two issues in less detail than many other issues, and 
the Commission's analysis would benefit from further development of 
these issues in the record. The Bureaus therefore found it appropriate 
to further inquire into these areas. The complete text of this document 
is available on the Commission's Internet site at www.fcc.gov and for 
public inspection Monday through Thursday from 8 a.m. to 4:30 p.m. and 
Friday from 8 a.m. to 11:30 a.m. in the Commission's Consumer and 
Governmental Affairs Bureau Reference Information Center, Room CY-A257, 
445 12th Street, SW., Washington, DC 20554. The full text of the Public 
Notice may also be purchased from the Commission's duplicating 
contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, 
SW., Washington, DC 20554, telephone 202-488-5300, facsimile 202-488-
5563, e-mail at fcc@bcpiweb.com, or via its Web site at https://www.bcpiweb.com.
    Interested parties may file comments and reply comments on or 
before the dates indicated on the first page of this document. When 
filing comments, please reference GN Docket No. 09-191 and WC Docket 
No. 07-52.
    Comments may be filed using the Commission's Electronic Comment 
Filing System (ECFS) or by filing paper copies. Comments filed through 
the ECFS can be sent as an electronic file via the Internet to https://www.fcc.gov/cgb/ecfs/. Generally, only one copy of an electronic 
submission must be filed. If multiple docket or rulemaking numbers 
appear in the caption of the proceeding, commenters must transmit one 
electronic copy of the comments to each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, 
commenters should include their full name, U.S. Postal Service mailing 
address, and the applicable docket or rulemaking numbers. Parties may 
also submit an electronic comment by Internet e-mail. To get filing 
instructions for e-mail comments, commenters should send an e-mail to 
ecfs@fcc.gov, and should include the following words in the body of the 
message, ``get form.'' A sample form and directions will be sent in 
reply. Parties who choose to file by paper must file an original and 
four copies of each filing. If more than one docket or rulemaking 
number appears in the caption of this proceeding, commenters must 
submit two additional copies for each additional docket or rulemaking 
number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although we continue to experience delays in receiving U.S. 
Postal Service mail). Parties are strongly encouraged to file comments 
electronically using the Commission's ECFS. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission, 445 12th Street, SW., Washington, DC 
20554.
    Effective December 28, 2009, all hand-delivered or messenger-
delivered paper filings for the Commission's Secretary must be 
delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, 
Washington, DC 20554. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes must be disposed of before 
entering the building. The filing hours at this location are 8 a.m. to 
7 p.m.
    Commercial overnight mail (other than U.S. Postal Service Express 
Mail and Priority Mail) must be sent to 9300 East Hampton Drive, 
Capitol Heights, MD 20743.
    U.S. Postal Service first-class, Express, and Priority mail must be 
addressed to 445 12th Street, SW., Washington, DC 20554.
    Parties shall also serve one copy with the Commission's copy 
contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th 
Street, SW., Room CY-B402, Washington, DC 20554, 202-488-5300, or via 
e-mail to fcc@bcpiweb.com.
    Documents in GN Docket No. 09-191 and WC Docket No. 07-52 will be 
available for public inspection and copying during business hours at 
the FCC Reference Information Center, Portals II, 445 12th St., SW., 
Room CY-A257, Washington, DC 20554. The documents may also be purchased 
from BCPI, telephone 202-488-5300, facsimile 202-488-5563, TTY 202-488-
5562, e-mail fcc@bcpiweb.com.
    To request materials in accessible formats for people with 
disabilities (Braille, large print, electronic files, audio format), 
send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental 
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Synopsis of Public Notice

    1. In order to promote innovation, investment, competition, and 
free expression, and to protect and empower consumers, in late 2009 the 
Commission issued the Open Internet NPRM. That NPRM sought public 
comment on rules that would codify the four principles adopted in 
Appropriate Framework for Broadband Access to the Internet Over 
Wireline Facilities et al., 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) (Internet Policy Statement) and strengthen them by 
prohibiting broadband Internet access providers from treating lawful 
traffic in a discriminatory manner, and by requiring providers to be 
transparent regarding their network management practices. The 
discussion generated by the Commission's Open Internet proceeding 
appears to have narrowed disagreement on many of the key elements of 
the framework proposed in the NPRM: First, that broadband providers 
should not prevent users from sending and receiving the lawful content 
of their choice, using the lawful applications and services of their 
choice, and connecting the nonharmful devices of their choice to the 
network, at least on fixed or wireline broadband platforms. Second, 
that broadband providers should be transparent regarding their network 
management practices. Third, that with respect to the handling of 
lawful traffic, some form of anti-discrimination protection is 
appropriate, at least on fixed or wireline broadband platforms. Fourth, 
that broadband providers must be able to reasonably manage their 
networks, including through appropriate and tailored mechanisms that 
reduce the effects of congestion or address traffic that is unwanted by 
users or harmful to

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the network. Fifth, that in light of rapid technological and market 
change, enforcing high-level rules of the road through case-by-case 
adjudication, informed by engineering expertise, is a better policy 
approach than promulgating detailed, prescriptive rules that may have 
consequences that are difficult to foresee.
    2. There are two complex issues, however, that merit further 
inquiry. The first is the relationship between open Internet 
protections and services that are provided over the same last-mile 
facilities as broadband Internet access service (commonly called 
``managed'' or ``specialized'' services). The second is the application 
of open Internet rules to mobile wireless Internet access services, 
which have unique characteristics related to technology, associated 
application and device markets, and consumer usage. The NPRM raised 
both of these issues but addressed them in less detail than many other 
issues, and the Commission's analysis would benefit from further 
development of these issues in the record. The Bureaus therefore find 
it appropriate to further inquire into these areas.

A. Specialized Services

    3. In the NPRM, the Commission recognized that broadband providers 
may provide other services over the same last-mile facilities used to 
provide broadband Internet access service. These services may drive 
additional private investment in networks and provide consumers new and 
valued services. However, there appear to be three general areas of 
concern about how to maintain the investment-promoting benefits of 
specialized services while protecting the Internet's openness: The NPRM 
used the term ``managed or specialized services'' to describe the 
services that we here call ``specialized services.'' We avoid the term 
``managed services'' to prevent confusion with services that have long 
been provided by communications service providers to enterprise 
customers, which may include managing computing and communications 
facilities on behalf of such customers.
    (1) Bypassing Open Internet Protections: Open Internet protections 
may be weakened if broadband providers offer specialized services that 
are substantially similar to, but do not technically meet the 
definition of, broadband Internet access service, and if consumer 
protections do not apply to such services. A similar concern may arise 
if specialized services are integrated into broadband Internet access 
service; for example, if a broadband provider offers broadband Internet 
access service bundled with a ``specialized service'' that provides 
prioritized access to a particular Web site.
    (2) Supplanting the Open Internet: Broadband providers may 
constrict or fail to continue expanding the network capacity allocated 
to broadband Internet access service in order to provide more capacity 
for specialized services. If this occurs, and particularly if one or 
more specialized services serve as substitutes for the delivery of 
content, applications, and services over broadband Internet access 
service, the open Internet may wither as an open platform for 
competition, innovation, and free expression.
    (3) Anti-competitive Conduct: Broadband providers may have the 
ability and incentive to engage in anti-competitive conduct with 
respect to specialized services, particularly if they are vertically 
integrated providers of content, applications, or services; or if they 
enter into business arrangements with third-party content, application, 
or service providers concerning specialized service offerings. Such 
discriminatory conduct could harm competition among, and private 
investment in, content, application, and service providers.
    These concerns, particularly the second and third, may be 
exacerbated by worries that due to limited choice among broadband 
Internet access service providers, consumers may not be able to 
effectively exercise their preferences for broadband Internet access 
service (or content, applications, or services available through 
broadband Internet access service) over specialized services.
    4. There appear to be at least six general policy approaches to 
addressing these concerns while promoting private investment and 
encouraging the development and deployment of new services that benefit 
consumers. These approaches could be employed alone or in combination:
    (A) Definitional Clarity: Define broadband Internet access service 
clearly and perhaps broadly, and apply open Internet rules to all forms 
of broadband Internet access service. Specialized services would be 
those services with a different scope or purpose than broadband 
Internet access service (i.e., which do not meet the definition of 
broadband Internet access service), and would not be subject to the 
rules applicable to broadband Internet access service. But such 
services could be addressed through one or more of the below policy 
approaches, or, alternatively, the Commission could address the policy 
implications of such services if and when such services are further 
developed in the market.
    (B) Truth in Advertising: Prohibit broadband providers from 
marketing specialized services as broadband Internet access service or 
as a substitute for such service, and require providers to offer 
broadband Internet access service as a stand-alone service, separate 
from specialized services, in addition to any bundled offerings.
    (C) Disclosure: Require providers to disclose information 
sufficient to enable consumers, third parties, and the Commission to 
evaluate and report on specialized services, including their effects on 
the capacity of and the markets for broadband Internet access service 
and Internet-based content, applications, and services. The Commission 
or Congress could then take action if necessary.
    (D) Non-exclusivity in Specialized Services: Require that any 
commercial arrangements with a vertically-integrated affiliate or a 
third party for the offering of specialized services be offered on the 
same terms to other third parties.
    (E) Limit Specialized Service Offerings: Allow broadband providers 
to offer only a limited set of new specialized services, with 
functionality that cannot be provided via broadband Internet access 
service, such as a telemedicine application that requires enhanced 
quality of service.
    (F) Guaranteed Capacity for Broadband Internet Access Service: 
Require broadband providers to continue providing or expanding network 
capacity allocated to broadband Internet access service, regardless of 
any specialized services they choose to offer. Relatedly, prohibit 
specialized services from inhibiting the performance of broadband 
Internet access services at any given time, including during periods of 
peak usage.
    5. The Bureaus seek comment on each of these concerns and suggested 
policy responses, as well as any other concerns or policies regarding 
specialized services that the Commission should consider. Which 
policies will best protect the open Internet and maintain incentives 
for private investment and deployment of innovative services that 
benefit consumers? In addition, the Bureaus seek comment on whether 
specialized services provided over mobile wireless platforms raise 
unique issues.

B. Application of Open Internet Principles to Mobile Wireless Platforms

    6. The NPRM seeks comment on ``how, to what extent, and when''

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openness principles should apply to mobile wireless platforms, with a 
particular emphasis on furthering innovation, private investment, 
competition, and freedom of expression. In light of developments since 
the issuance of the NPRM, it is now appropriate to update the record on 
certain questions related to the application of openness principles to 
wireless. Mobile broadband providers such as AT&T Mobility and Leap 
Wireless (Cricket) have recently introduced pricing plans that charge 
different prices based on the amount of data a customer uses. The 
emergence of these new business models may reduce mobile broadband 
providers' incentives to employ more restrictive network management 
practices that could run afoul of open Internet principles. 
Additionally, Verizon and Google issued a proposal for open Internet 
legislation that would exclude wireless, except for proposed 
transparency requirements.
1. Transparency
    7. The Bureaus seek comment on what disclosure requirements are 
appropriate to ensure that consumers and content, application, service, 
and device providers can make informed choices regarding use of mobile 
broadband networks. What information should be disclosed about device 
and application requirements and certification processes? Are there any 
existing models that could provide guidance for shaping such rules? For 
instance, the Commission adopted transparency requirements for 
licensees in the 700 MHz Upper C Block.
2. Devices
    8. The Bureaus seek further comment on the ability of new 
technologies and business models to facilitate non-harmful attachment 
of third-party devices to mobile wireless networks. Can adherence to 
industry standards for mobile wireless networks ensure non-harmful 
technical interoperability between mobile broadband devices and 
networks? Will deployment of next-generation technologies (e.g., LTE) 
further facilitate interoperability? To the extent that compliance with 
technical standards needs to be validated through laboratory testing, 
could such testing be conducted through independent authorized test 
centers? Were the Commission to require mobile providers to allow any 
non-harmful device to connect to their network, subject to reasonable 
network management, how would mobile broadband provider conduct have to 
change, if at all, in light of existing device certification programs?
    9. As noted above, some mobile providers have introduced usage-
based data pricing. To what extent do these business models mitigate 
concerns about congestion of scarce network capacity by third-party 
devices?
3. Applications
    10. The Bureaus seek comment on how best to maximize consumer 
choice, innovation, and freedom of expression in the mobile application 
space, while ensuring continued private investment and competition in 
mobile wireless broadband services. To what extent should mobile 
wireless providers be permitted to prevent or restrict the distribution 
or use of types of applications that may intensively use network 
capacity, or that cause other network management challenges? Is the use 
of reasonable network management sufficient, by itself or in 
combination with usage-based pricing, to address such concerns? Should 
mobile wireless providers have less discretion with respect to 
applications that compete with services the provider offers? How should 
the ability of developers to load software applications onto devices 
for development or prototyping purposes be protected?
    11. The Bureaus also seek comment on the extent to which certain 
application distribution models--such as a mobile broadband Internet 
access service provider acting as both a network operator and an app 
store provider/curator--may affect consumer choice. If providers were 
to be prohibited from denying or restricting access to applications in 
their capacity as network providers, should they nevertheless have 
discretion regarding what apps are included in app stores that they 
operate? Are there safe-harbor criteria that, if met by a provider, 
would ameliorate potential concerns? For example, if a provider's 
customer had a choice of several app store providers that offered 
applications that could be downloaded onto the customer's mobile 
device, would that adequately mitigate concerns about potentially anti-
competitive or anti-consumer effects of a provider excluding 
applications from its own app store?
    12. Finally, the Bureaus seek comment on how differences between 
web-based and native applications should inform the Commission's 
analysis. Should a mobile provider have more discretion to restrict 
consumers' downloading and/or use of native applications than they 
should with respect to web-based applications?

Regulatory Flexibility Analysis

    The NPRM in this proceeding included an Initial Regulatory 
Flexibility Analysis (IRFA) pursuant to 5 U.S.C. 603, exploring the 
potential impact of the Commission's proposal on small entities. The 
matters discussed in the Bureaus' Public Notice do not modify in any 
way the IRFA the Commission previously issued. However, the Commission 
received comments concerning the IRFA with regard to matters discussed 
in this Public Notice. Parties that filed comments on the IRFA, and 
anyone else, are invited to file comments on the IRFA in light of this 
additional notice.

Procedural Matters

    Ex Parte Presentations. This matter shall be treated as a ``permit-
but-disclose'' proceeding in accordance with the ex parte rules. 
Persons making oral ex parte presentations are reminded that memoranda 
summarizing the presentations must contain summaries of the substance 
of the presentations and not merely a listing of the subjects 
discussed. More than a one- or two-sentence description of the views 
and arguments presented generally is required. Other requirements 
pertaining to oral and written presentations are set forth in Sec.  
1.1206(b) of the rules.

Federal Communications Commission.
Kirk Burgee,
Chief of Staff, Wireline Competition Bureau.
[FR Doc. 2010-22629 Filed 9-9-10; 8:45 am]
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