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FCC Proposes to Codify and Expand “Network Neutrality” Principles

September 24, 2009
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In a speech delivered Monday, September 21, FCC Chairman Julius Genachowski proposed that the FCC codify and expand the four open Internet principles that the FCC adopted in its 2005 Broadband Policy Statement. The existing “principles” (often referred to as “network neutrality” principles) affirm that consumers must be able to access the lawful Internet content, applications and services of their choice, and attach non-harmful devices to the network. These principles have been described by the FCC as “guiding” the agency’s case-by-case consideration of complaints, although the issue of the enforceability of the principles is still before the courts.

Chairman Genachowski’s announcement indicated that he intended to propose not only that the existing principles be formally codified in the FCC’s rules, but also that they be augmented with two additional binding principles. The first would prevent Internet access providers from discriminating against particular Internet content or applications. The second would ensure that Internet access providers are transparent about their network management practices. The Chairman also proposed applying all six principles to all platforms that access the Internet.

The process of codifying the rules is expected to begin at the FCC’s upcoming October meeting with the release of a Notice of Proposed Rulemaking (NPRM) that will ask for input and feedback on the proposed rules and their application. We anticipate that the NPRM will seek comment as to how the FCC will determine whether network management practices are reasonable, what information broadband providers should disclose about their network management practices and how the rules apply to differing platforms, including mobile Internet access services.

We would be pleased to respond to any questions regarding these matters.