Wireless carriers again avoid strict rule against blocking apps

The Federal Communications Commission asked a lot of questions in yesterday’s net neutrality order. One of them is whether the commission should start treating fixed broadband and cellular Internet as one and the same for the purposes of no-blocking and anti-discrimination rules. But for now, the commission is continuing the course it’s taken previously by treating fixed and wireless Internet differently.

Like the 2010 Open Internet Order that was largely struck down by a federal appeals court ruling, yesterday’s Notice of Proposed Rulemaking (NPRM) lays out rules for ISPs to follow on disclosing network practices, blocking applications and websites, and discriminating against Internet services. But cellular carriers such as Verizon Wireless, AT&T, Sprint, and T-Mobile face less strict rules than fixed (e.g. wired) Internet providers, allowing them to block applications that don’t compete against their telephony services.

In the 2010 order, “[t]he transparency rule applies equally to both fixed and mobile broadband Internet access service,” the commission noted in the new NPRM. “The no-blocking rule applied a different standard to mobile broadband Internet access services, and mobile Internet access service was excluded from the unreasonable discrimination rule.”

Will that change? Probably not. “We tentatively conclude that we should maintain the same approach in today’s Notice,” the FCC said.

However, the commission will seek comment on whether it should change course. The commission will accept public comments on its website until September 10, and then it will write and vote on final rules.

“We recognize that there have been significant changes since 2010 in the mobile marketplace, including how mobile providers manage their networks, the increased use of Wi-Fi, and the increased use of mobile devices and applications,” the NPRM states. “We seek comment on whether and, if so, how these changes should lead us to revisit our treatment of mobile broadband service.”

Specifically, the commission wants public comments on “whether the no-blocking rule should continue to distinguish between fixed and mobile broadband.”

The 2010 order and yesterday’s NPRM prevent wireless carriers from blocking certain applications, but they’re not as strict as the rules for fixed broadband providers like Comcast. The 2010 rule, which the commission wants to reinstate, “prohibited mobile broadband providers from blocking consumers from accessing lawful websites or blocking applications that compete with the provider’s voice or video telephony services,” the NPRM said. Wired Internet providers face a ban on blocking any type of lawful service or “non-harmful devices,” except in cases of “reasonable network management.”

While “tentatively” deciding to keep that fixed/mobile split in the updated rules, the commission seeks comment” on whether it would serve the public interest to expand the rule’s scope to include reasonable access to all applications that compete with the mobile broadband Internet access provider’s other services, not just those that compete with voice or video telephony services, subject to reasonable network management practices.” The commission further asks whether the no-blocking rule should apply more broadly to mobile broadband providers that advertise themselves as a substitute for wired Internet.

Should cellular providers be allowed to discriminate?

In addition to outlawing blocking, the commission says it will require fixed broadband providers to give consumers a minimum level of service that ensures no applications or services are discriminated against. This leaves room for “commercially reasonable” deals in which third-party services can pay for priority treatment, or a “fast lane” to consumers.

“It would prohibit as commercially unreasonable those broadband providers’ practices that, based on the totality of the circumstances, threaten to harm Internet openness and all that it protects,” the NPRM states. “At the same time, it could permit broadband providers to serve customers and carry traffic on an individually negotiated basis, ‘without having to hold themselves out to serve all comers indiscriminately on the same or standardized terms,’ so long as such conduct is commercially reasonable.”

The commission tentatively decided to apply these rules only to fixed broadband, but asked the public to weigh in on whether it should subject mobile to the same rule banning commercially unreasonable prioritization.

“[H]ow should the definitions of ‘fixed’ and ‘mobile’ services be applied to a fixed broadband provider’s commercially deployed Wi-Fi service that is made available to the provider’s fixed broadband customers?” the FCC also asked. “How should such changes affect our treatment of reasonable network management for mobile providers? Similarly, how should we treat mobile services that are deployed and/or marketed as express substitutes for traditional telecommunications or broadband services? Finally, have there been changes in technology or the marketplace for the provision of satellite broadband Internet access service that should lead the Commission to reassess how its rules should apply to such services?”

Since the commission “tentatively concluded” to keep treating wireless and fixed differently, someone will have to come up with a good argument to change the commissioners’ minds.

“Authorizing” fast lanes

While FCC Chairman Tom Wheeler argued yesterday that nothing in the NPRM authorizes “fast lanes” in which Web services pay for priority treatment, that’s only because fast lanes were already legal due to the FCC’s previous net neutrality rules being invalidated.

The NPRM itself says, “we tentatively conclude that the Commission should adopt a revised rule that, consistent with the court’s decision, may permit broadband providers to engage in individualized practices, while prohibiting those broadband provider practices that threaten to harm Internet openness.” This includes “encouragement of individualized negotiation and, if necessary, a mechanism to allow the Commission to evaluate challenged practices on a case-by-case basis.”

Although this seems to endorse fast lanes, the commission also asks whether it should ban pay-for-priority altogether and how to define pay-for-priority agreements.

“Alternatively, we seek comment on whether we should adopt a no-blocking rule that either itself prohibits broadband providers from entering into priority agreements with edge providers or acts in combination with a separate rule prohibiting such conduct,” the FCC said. “If the Commission were to proceed down this alternative path, how should the Commission define ‘priority’? Are ‘priority’ agreements broader than ‘pay-for-priority,’ possibly including the exchange of consideration other than money? Are there other arrangements between broadband providers and edge providers that have the potential to harm Internet openness and should be addressed within the no-blocking rule? Commenters should address the legal bases and theories, including Title II, that the Commission could rely on for such a no-blocking rule, and how different sources of authority might lead to different formulations of the no-blocking rule.”

More unanswered questions and ambiguity

Some more unanswered questions include how the FCC will define the “minimum level of access” broadband providers would have to give consumers. The potential standards proposed by the FCC include ones that are vague (e.g. “Best effort” or an “objective, evolving ‘reasonable person’ standard) and one that could end up being specific (a “minimum quantitative performance” such as minimum speed).

The proposed rules contain exceptions for “specialized services” that broadband providers offer themselves. Specialized services have included “facilities-based VoIP, IP video, e-reading services, heart rate monitoring, and energy sensing,” an FCC document from last year notes.

The NPRM asks, “How can we ensure that the specialized services exception is not used to circumvent our open Internet rules? In addition, should specialized services be addressed within the scope of the ‘commercially reasonable’ rule either as a safe harbor or among the factors for consideration? Should the Commission define ‘specialized services’?”