Cybertelecom
Cybertelecom
Federal Internet Law & Policy
An Educational Project
Net Neutrality :: Network Management
Dont be a FOOL; The Law is Not DIY

Derived From: 12/23/10 FCC Acts to Preserve Internet Freedom and Openness. R&O: Word | Acrobat (citations omitted)

"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 ." Open Internet Order para. 63.

"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 ." Open Internet Order para. 68.

"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." Open Internet Order para. 82.

80.  Since at least 2005, when the Commission adopted the Internet Policy Statement , we have recognized that a flourishing and open Internet requires robust, well-functioning broadband networks, and accordingly that open Internet protections require broadband providers to be able to reasonably manage their networks. The open Internet rules we adopt today expressly provide for and define "reasonable network management" in order to provide greater clarity to broadband providers, network equipment providers, and Internet end users and edge providers regarding the types of network management practices that are consistent with open Internet protections.

81. In the Open Internet NPRM , the Commission proposed that open Internet rules be subject to reasonable network management, consisting of "reasonable practices employed by a provider of broadband Internet access service to: (1) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns; (2) address traffic that is unwanted by users or harmful; (3) prevent the transfer of unlawful content; or (4) prevent the unlawful transfer of content." The proposed definition also stated that reasonable network management consists of "other reasonable network management practices."

82.  Upon reviewing the record, we conclude that the definition of reasonable network management should provide greater clarity regarding the standard used to gauge reasonableness, expressly account for technological differences among networks that may affect reasonable network management, and omit elements that do not relate directly to network management functions and are therefore better handled elsewhere in the rules-for example, measures to prevent the transfer of unlawful content. We therefore adopt the following definition of 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.

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 the network. The term "particular network architecture and technology" refers to the differences across access platforms such as cable, DSL, satellite, and fixed wireless.

83.  As proposed in the Open Internet NPRM , we will further develop the scope of reasonable network management on a case-by-case basis, as complaints about broadband providers' actual practices arise. The novelty of Internet access and traffic management questions, the complex nature of the Internet, and a general policy of restraint in setting policy for Internet access service providers weigh in favor of a case-by-case approach.

84.  In taking this approach, we recognize the need to balance clarity with flexibility. We discuss below certain principles and considerations that will inform the Commission's case-by-case analysis. Further, although broadband providers are not required to seek permission from the Commission before deploying a network management practice, they or others are free to do so, for example by seeking a declaratory ruling.

85.  We reject proposals to define reasonable network management practices more expansively or more narrowly than stated above. We agree with commenters that the Commission should not adopt the "narrowly or carefully tailored" standard discussed in the Comcast Network Management Practices Order . We find that this standard is unnecessarily restrictive and may overly constrain network engineering decisions. Moreover, the "narrowly tailored" language could be read to import strict scrutiny doctrine from constitutional law, which we are not persuaded would be helpful here. 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.

86.  We also acknowledge that reasonable network management practices may differ across platforms. For example, practices needed to manage congestion on a fixed satellite network may be inappropriate for a fiber-to-the-home network. We also recognize the unique network management challenges facing broadband providers that use unlicensed spectrum to deliver service to end users. Unlicensed spectrum is shared among multiple users and technologies and no single user can control or assure access to the spectrum. We believe the concept of reasonable network management is sufficiently flexible to afford such providers the latitude they need to effectively manage their networks.

87.  The principles guiding case-by-case evaluations of network management practices are much the same as those that guide assessments of "no unreasonable discrimination," and include transparency, end-user control, and use- (or application-) agnostic treatment. We also offer guidance in the specific context of the legitimate network management purposes listed above.

88.  Network Security or Integrity and Traffic Unwanted by End Users . Broadband providers may implement reasonable practices to ensure network security and integrity, including by addressing traffic that is harmful to the network. Many commenters strongly support allowing broadband providers to implement such network management practices. Some commenters, however, express concern that providers might implement anticompetitive or otherwise problematic practices in the name of protecting network security. We make clear that, for the singling out of any specific application for blocking or degradation based on harm to the network to be a reasonable network management practice, a broadband provider should be prepared to provide a substantive explanation for concluding that the particular traffic is harmful to the network, such as traffic that constitutes a denial-of-service attack on specific network infrastructure elements or exploits a particular security vulnerability.

89.  Broadband providers also may implement reasonable practices to address traffic that a particular end user chooses not to receive. Thus, for example, a broadband provider could provide services or capabilities consistent with an end user's choices regarding parental controls, or allow end users to choose a service that provides access to the Internet but not to pornographic websites. Likewise, a broadband provider serving a premise operator could restrict traffic unwanted by that entity, though such restrictions should be disclosed. Our rule will not impose liability on a broadband provider where such liability is prohibited by section 230(c)(2) of the Act.

90.  We note that, in some cases, mechanisms that reduce or eliminate some forms of harmful or unwanted traffic may also interfere with legitimate network traffic. Such mechanisms must be appropriate and tailored to the threat; should be evaluated periodically as to their continued necessity; and should allow end users to opt-in or opt-out if possible. Disclosures of network management practices used to address network security or traffic a particular end user does not want to receive should clearly state the objective of the mechanism and, if applicable, how an end user can opt in or out of the practice.

91.. Numerous commenters support permitting the use of reasonable network management practices to address the effects of congestion, and we agree that congestion management may be a legitimate network management purpose. For example, broadband providers may need to take reasonable steps to ensure that heavy users do not crowd out others. What constitutes congestion and what measures are reasonable to address it may vary depending on the technology platform for a particular broadband Internet access service. For example, if cable modem subscribers in a particular neighborhood are experiencing congestion, it may be reasonable for a broadband provider to temporarily limit the bandwidth available to individual end users in that neighborhood who are using a substantially disproportionate amount of bandwidth.

92. We emphasize that reasonable network management practices are not limited to the categories described here, and that broadband providers may take other reasonable steps to maintain the proper functioning of their networks, consistent with the definition of reasonable network management we adopt. As we stated in the Open Internet NPRM , "we do not presume to know now everything that providers may need to do to provide robust, safe, and secure Internet access to their subscribers, much less everything they may need to do as technologies and usage patterns change in the future." Broadband providers should have flexibility to experiment, innovate, and reasonably manage their networks.

DISCRIMINATION / PRIORITIZATION / NETWORK MANAGEMENT :

The FCC has articulated four broadband principals. A footnote to those principals states "The principles we adopt are subject to reasonable network management." What is reasonable network management has become a source of significant debate. See Comcast / BitTorrent petition.

ECPA & Net Neutrality: Some experts have suggested that ISP behavior could potentially violation the Electronic Communications Act which prohibits interception and use of transmissions over networks except where such interception "is a necessary incident to the rendition of his service." Some have argued that deep packet inspection potentially violates ECPA. [Wong 316] [Ohm] [Harris] There is a pending litigation in California Federal District Court which claims that NEBUAD violated ECPA. See Valentine v. NEBUAD, NDCA. Catherine Gellis in her article argues that the use of NM technologies by universities to detect, monitor and control P2P traffic would be a violation of ECPA. [Gellis]

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