The Federal Communications Commission has released a “Further Inquiry into Two Under-Developed Issues in the Open Internet Proceeding” (“Further Inquiry”) related to the FCC’s earlier 2009 Notice of Proposed Rulemaking on Open Internet principles. The Further Inquiry is available here. The Federal Register notice is available here.

The Further Inquiry notes that the debate has narrowed to five issues:

1. 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.”
2. That broadband providers should fully disclose their network management practices.
3. 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.”
4. 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 the network.
5. That in light of rapid technological and market change, enforcing high-level “rules of the road” that are informed by experienced engineers and adjudicated on a case-by-case basis is a better policy approach than promulgating detailed, prescriptive rules that may have consequences that are difficult to foresee.

The Further Inquiry seeks comment on two additional matters:

1. The relationship between Open Internet protections and commonly called “managed” or “specialized” services.
2. The application of Open Internet rules to mobile wireless Internet access services.

On these issues, the FCC essentially expressed concerns about broadband providers creating a second Internet where some websites could be prioritized over others. With regard to wireless issues, the FCC asked for comment on applying Open Internet principles to wireless networks.

This Further Inquiry appears to be a response to industry efforts like the recent Google-Verizon proposal that would exempt wireless networks from all but the transparency principle. The FCC cites that proposal as well as wireless carriers’ new tiered data plans as reasons for seeking more information on the issue. FCC Chairman Julius Genachowski has stated that the Further Inquiry will help “complete our efforts to establish an enforceable framework to preserve Internet freedom and openness.” His full statement is available here.

Please contact Ross Buntrock, Jon Canis, Michael Hazzard, or Stephanie Joyce (contact information below) for further information or for assistance in filing comments.

Ross Buntrock
202.775.5734
buntrock.ross@arentfox.com

Jon Canis
202.775.5738
canis.jonathan@arentfox.com

Michael Hazzard
202.857.6029
hazzard.michael@arentfox.com

Stephanie Joyce
202.857.6081
joyce.stephanie@arentfox.com