211. Today, we retain the transparency rule as established in the Open Internet Order, with some modifications, and eliminate the additional reporting obligations of the Title II Order. We find many of those additional reporting obligations significantly increased the burdens imposed on ISPs without providing countervailing benefits to consumers or the Commission.
766As a result, we recalibrate the requirements under the transparency rule. Specifically, we adopt the following rule:
Any person providing broadband Internet access service shall publicly disclose accurate
information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient to enable consumers to make informed choices regarding the purchase and use of such services and entrepreneurs and other small businesses to develop, market, and maintain Internet offerings. Such disclosure shall be made via a publicly available, easily accessible website or through transmittal to the Commission.
767212. In doing so, we note that the record overwhelmingly supports retaining at least some transparency requirements.
768Crucially, the transparency rule will ensure that consumers have the
765 For example, the guidance notes that for many fixed providers, performance is likely to be consistent across the provider’s footprint so long as the same technology is deployed and that in such a case a single disclosure for the full service area may be sufficient. By contrast, mobile performance may vary, and the guidance suggested the use of CMA as an appropriate geographic area on which to base disclosures. Guidance on Open Internet Transparency Requirements, Public Notice 31 FCC Rcd 5330 (2016) (2016 Advisory Guidance).
766 See, e.g., ADTRAN Comments at 26-27; AT&T Comments at 11, n.7; CenturyLink Comments at 35; Comcast Comments at 58-59; CTIA Comments at 18; Cox Comments at 26; Frontier Comments at 12; Sprint Comments at 13, 16; T-Mobile Comments at 18; WISPA Comments at 43; Alamo Broadband Reply at 2; CTIA Reply at 2, 43.
But see, e.g., American Association of Community Colleges Comments at 18-19; Cogent Comments at 25-26;
CWA/NAACP Comments at 3-4, 17-18; Consumers Union Comments at 16-17; TDI et al. Comments at 7-8.
767 For purposes of these rules, “consumer” includes any subscriber to the ISP’s broadband Internet access service, and “person” includes any “individual, group of individuals, corporation, partnership, association, unit of
government or legal entity, however organized,” cf. 47 CFR § 54.8(a)(6).
768See, e.g., AARP Comments at 47; ACA Comments at 76-77; ADTRAN Comments at 26-27; American Association of Community Colleges Comments at 18-19; American Association of Law Libraries et al. Comments at 17; Asian Pacific American Institute of Congressional Studies et al. Comments at 13-14; AT&T Comments at 11;
Atty’s General Comments at 4, 21-22; Cogent Comments at 25-26; Comcast Comments at 53-54, 58-59;
CWA/NAACP Comments at 3-4, 17-18; Consumers Union Comments at 16-17; Cox Comments at 26; CTIA Comments at 18-21; David W. Quist Comments at 1; ESA Comments at 12; Free Press Comments at 70-71; HTTP Comments at 2; Illinois Department of Innovation and Technology Comments at 1-2; Independent Film &
Television Alliance Comments at 4-5; Information Technology Industry Council (ITIC) Comments at 5; Internet Association Comments at 30-31; John Harrington Comments at 1; LGBT Technology Partnership Comments at 3;
Mergen Comments at 1; Microsoft Comments at 15; New Media Rights Comments at 13; Nominum Comments at 6;
Pat Welch Comments at 5; R Street Comments at 28-29; Sprint Comments at 13, 15-16; TDI et al. Comments at 7-8;
T-Mobile Comments at 18; Verizon Comments at 4, 19; WISPA Comments at 43; WTA Comments at 11, 13; City and County of San Francisco Reply at 4; ACA Reply at 34; ADTRAN Reply at 6-7; Apple Reply at 3; Association of Research Libraries Reply at 11; AT&T Reply at 11-12; County of Santa Clara Reply at 2, 8, 11; CTIA Reply at 2;
David Choffnes Reply at 4; INCOMPAS Reply at 43; Verizon Reply at 5, 21; Software and Information Industry Alliance Reply at 5, 7-9; TechFreedom Reply at 84, 86, 98; OTI New America Reply at 28, n. 82;Nominum Reply at 7; Internet Association Reply at 20; Letter from Ted Winterer, Mayor, City of Santa Monica, to Ajit Pai,
Chairman, FCC, WC Docket No. 17-108, at 1 (filed Jul. 10, 2017). We reject commenter assertions that we should not maintain any transparency requirements. See, e.g., CenturyLink Comments at 34-35 (stating that “[a]rguably, even the more onerous aspects of the transparency rules adopted by the 2010 Open Internet Order went too far”);
ICLE Policy Reply at 42 (suggesting that public disclosure without a rule would be sufficient). CenturyLink does (continued….)
information necessary to make informed choices about the purchase and use of broadband Internet access service, which promotes a competitive marketplace for those services. Disclosure supports innovation, investment, and competition by ensuring that entrepreneurs and other small businesses have the technical information necessary to create and maintain online content, applications, services, and devices, and to assess the risks and benefits of embarking on new projects.
769213. What is more, disclosure increases the likelihood that ISPs will abide by open Internet principles by reducing the incentives and ability to violate those principles,
770that the Internet community will identify problematic conduct, and that those affected by such conduct will be in a position to make informed competitive choices or seek available remedies for anticompetitive, unfair, or deceptive practices.
771Transparency thereby “increases the likelihood that harmful practices will not occur in the first place and that, if they do, they will be quickly remedied.”
772We apply our transparency rule to broadband Internet access service, as well as functional equivalents or any service that is used to evade the transparency requirements we adopt today.
773a. Content of Required Disclosures
214. We require ISPs to prominently disclose network management practices, performance, and commercial terms of their broadband Internet access service, and find substantial record support (including from ISPs) for following the course set out by the Open Internet Order.
774We find that the elements of the transparency rule we adopt today help consumers make the most educated decision as to which ISP to choose and keep entrepreneurs and other small businesses effectively informed of ISP practices so that they can develop, market, and maintain Internet offerings. Although we agree with the Open Internet Order that “the best approach is to allow flexibility in implementation of the transparency
(Continued from previous page)not identify which requirements from the 2010 transparency rule it believes could arguably be “onerous.” Further, as discussed above, we find that a transparency requirement is necessary and sufficient to protect Internet openness, given that we lack authority to adopt conduct rules and in addition find that an enforceable transparency rule obviates the need for bright line conduct rules. See infra paras. 236-241.
769 Open Internet Order, 25 FCC Rcd at 17936, para. 53; see also Internet Association Comments at 30-31; Apple Reply at 3; cf. Entertainment Software Association Comments at 12 (explaining that transparency regarding network management practices allows content provider to make informed decisions when choosing their broadband service);
R Street Institute Comments at 28-29 (asserting that the broadband market will function better “if edge providers have clear guidance on how to conform their services to match broadband providers’ traffic management practices”).
770 See, e.g., AT&T Comments at 3; Sprint Comments at 13-14.
771 Open Internet Order, 25 FCC Rcd at 17936-37, para. 53; see also R Street Institute Comments at 28-29; Free Press Comments at 71 (“Consumer advocates and watchdogs cannot file complaints if they do not have access to information about broadband providers practices.”).
772 Open Internet Order, 25 FCC Rcd at 17936-37, para. 53.
773 As the Commission explained in the 2010 Open Internet Order, “a key factor in determining whether a service is used to evade the scope of the rules is whether the service is used as a substitute for broadband Internet access service. For example, an Internet access service that provides access to a substantial subset of Internet endpoints based on end users’ preference to avoid certain content, applications, or services; Internet access services that allow some uses of the Internet (such as access to the World Wide Web) but not others (such as email); or a ‘Best of the Web’ Internet access service that provides access to 100 top websites could not be used to evade the open Internet rules applicable to ‘broadband Internet access service.’” 2010 Open Internet Order, 25 FCC Rcd at 17933, para. 47 (citations omitted). We caution ISPs that they may not evade application of the transparency rule “simply by blocking end users’ access to some Internet points.” Id.
774 See Open Internet Order, 25 FCC Rcd at 17938-39, paras. 56-57; see, e.g., ADTRAN Comments at 26-27;
AT&T Comments at 11, n.7; Comcast Comments at 58-59; Cox Comments at 26; CTIA Comments at 18, 21; CTIA Reply at 43; T-Mobile Comments at 18; WTA Comments at 11.
rule,”
775we describe the specific requirements to guide ISPs and ensure that consumers, entrepreneurs, and other small businesses receive sufficient information to make our rule effective.
215. Network Management Practices. In the Open Internet Order, the Commission required ISPs to disclose their congestion management, application-specific behavior, device attachment rules, and security practices.
776We adopt those same requirements and further require ISPs to disclose any
blocking, throttling, affiliated prioritization, or paid prioritization in which they engage. Although requiring disclosure of network management practices imposes some burden on ISPs,
777we find the benefits of enabling the public and the Commission to identify any problematic conduct and suggest fixes substantially outweigh those costs. The record generally supports disclosure of ISP network practices.
778216. We specifically require all ISPs to disclose:
• Blocking. Any practice (other than reasonable network management elsewhere disclosed) that blocks or otherwise prevents end user access to lawful content, applications, service, or non-harmful devices, including a description of what is blocked.
• Throttling. Any practice (other than reasonable network management elsewhere disclosed) that degrades or impairs access to lawful Internet traffic on the basis of content, application, service, user, or use of a non-harmful device, including a description of what is throttled.
• Affiliated Prioritization. Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, or resource reservation, to benefit an affiliate, including identification of the affiliate.
• Paid Prioritization. Any practice that directly or indirectly favors some traffic over other traffic, including through use of techniques such as traffic shaping,
prioritization, or resource reservation, in exchange for consideration, monetary or otherwise.
779• Congestion Management. Descriptions of congestion management practices, if any.
These descriptions should include the types of traffic subject to the practices; the purposes served by the practices; the practices’ effects on end users’ experience;
criteria used in practices, such as indicators of congestion that trigger a practice, including any usage limits triggering the practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate.
780• Application-Specific Behavior. Whether and why the ISP blocks or rate-controls
775 Open Internet Order, 25 FCC Rcd at 17938, para. 56.
776 Id.
777 See, e.g., CTIA Comments at 19.
778 See, e.g., ADTRAN Comments at 26-27; American Association of Community Colleges Comments at 18-19;
Atty’s General Comments at 21-22; AT&T Comments at 11, n.7; Comcast Comments at 58-59; Cox Comments at 26; CTIA Comments at 18, 21; ESA Comments at 12; Software and Information Industry Alliance Comments at 8-9; Verizon Comments at 18-9; WISPA Comments at 43; WTA Comments at 11.
779 See, e.g., ESA Comments at 12-13 (“To the extent the Commission modifies its rules to permit paid
prioritization, any such arrangements or other permitted discriminatory traffic practices must be disclosed along with the broadband provider’s network management practices.”).
780 Open Internet Order, 25 FCC Rcd at 17938, para. 56; see also, e.g., ESA Comments at 13 (“Broadband providers should also make clear the congestion levels that trigger their traffic management techniques and make available their traffic shaping policies, including what type of traffic is subjected to traffic shaping techniques.”).
specific protocols or protocol ports, modifies protocol fields in ways not prescribed by the protocol standard, or otherwise inhibits or favors certain applications or classes of applications.
781• Device Attachment Rules. Any restrictions on the types of devices and any approval procedures for devices to connect to the network.
782• Security. Any practices used to ensure end-user security or security of the network, including types of triggering conditions that cause a mechanism to be invoked (but excluding information that could reasonably be used to circumvent network security).
783We do not mandate disclosure of any other network management practices. Notably, we define
“reasonable network management” to mean a practice “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.”
784The record reflects an overwhelming preference for this approach from the Open Internet Order, which provides ISPs greater flexibility and certainty.
785217. Performance Characteristics. In the Open Internet Order, the Commission required ISPs to disclose a service description as well as the impact of specialized services (non-broadband Internet access service data services) on performance. We find that the Open Internet Order’s performance metric disclosures benefit consumers without placing an undue burden on ISPs.
786218. We specifically require all ISPs to disclose:
• Service Description. A general description of the service, including the service technology, expected and actual access speed and latency, and the suitability of the
781 Open Internet Order, 25 FCC Rcd at 17938, para. 56.
782 Id. at 17938-39, para. 56.
783 Id. at 17939, para. 56. We expect ISPs to exercise their judgment in deciding whether it is necessary and appropriate to disclose particular security measures. The Commission’s primary concern is those security measures likely to affect a consumer’s ability to access the content, applications, services, and devices of his or her choice. As a result, we do not expect ISPs to disclose internal network security measures that do not directly bear on a
consumer’s choices. 2011 Advisory Guidance, 26 FCC Rcd at 9417-18.
784 Open Internet Order, 25 FCC Rcd at 17952, para. 82 (acknowledging that legitimate network management includes ensuring network security and integrity, addressing traffic that is unwanted by end users (including by premise operators), and reducing or mitigating the effects of congestion on the network, and that “particular network architecture and technology” refers to the differences across access platforms such as cable, DSL, satellite, and fixed wireless).
785 See, e.g., ADTRAN Comments at 26 (“The problem with [the Title II Order] definition is that a ‘technical management justification’ is also a ‘business practice,’ because maintaining an efficiently operating network is a business practice. Thus, the rule seems to say that all network management decisions could be excluded from the definition of ‘reasonable’ network management decisions.”); CenturyLink Comments at 35; Nominum Comments at 7-8; Nokia Comments at 17-18; Immarsat Comments at 15 (“The diversity of services that exist today and that are on the horizon, along with the multitudes of communications technologies capable of providing broadband Internet access service, warrant a flexible standard for determining what constitutes ‘reasonable network management’ under any net neutrality rules.”); Gogo Comments at 6; Sprint Comments at 9. But cf., e.g., Letter from Scott Jordan to Marlene Dortch, Secretary, FCC, WC Docket No. 17-108 at 2 (Sept. 11, 2017) (“If reasonable network management is redefined to include practices that are not primarily motivated by a technical network management justification, then the no-blocking and no-throttling rules will be defunct. Such a reversal would allow a broadband Internet access service provider to block or throttle an application simply because it believes doing so would maximize its profit.”).
786 See, e.g., ADTRAN Comments at 26-27; Comcast Comments at 58-59; Cox Comments at 26; CTIA Comments at 18, 21; WISPA Comments at 43; CTIA Reply at 43.
service for real-time applications.
787• Impact of Non-Broadband Internet Access Service Data Services. If applicable, what non-broadband Internet access service data services, if any, are offered to end users, and whether and how any non-broadband Internet access service data services may affect the last-mile capacity available for, and the performance of, broadband Internet access service.
788219. Commercial Terms. In the Open Internet Order, the Commission required ISPs to disclose commercial terms of service, including price, privacy policies, and redress options.
789The record in this proceeding supports retaining these disclosures.
790These disclosures inform the Commission, consumers, entrepreneurs, and other small businesses about the parameters of the service, without imposing costly burdens on ISPs. We therefore require ISPs to make the following disclosures:
• Price. For example, monthly prices, usage-based fees, and fees for early termination or additional network services.
791• Privacy Policies. A complete and accurate disclosure about the ISP’s privacy practices, if any. For example, whether any network management practices entail inspection of network traffic, and whether traffic is stored, provided to third parties, or used by the ISP for non-network management purposes.
792• Redress Options. Practices for resolving complaints and questions from consumers, entrepreneurs, and other small businesses.
793220. Eliminating the Title II Order’s Additional Reporting Obligations. Today, we return to a more balanced approach—one that provides sufficient information for the Commission to meet its
787 Open Internet Order, 25 FCC Rcd at 17939, para. 56. For purposes of satisfying this requirement, fixed ISPs that choose to participate in the Measuring Broadband America (MBA) program may disclose their results as a sufficient representation of the actual performance their customers can expect to experience. Fixed ISPs that do not participate may use the methodology from the MBA program to measure actual performance, or may disclose actual
performance based on internal testing, consumer speed test data, or other data regarding network performance, including reliable, relevant data from third-party sources. 2011 Advisory Guidance, 26 FCC Rcd at 9414-15.
Mobile ISPs that have access to reliable information on network performance may disclose the results of their own or third-party testing. Those mobile ISPs that do not have reasonable access to such network performance data may disclose a Typical Speed Range (TSR) representing the range of speeds and latency that can be expected by most of their customers, for each technology/service tier offered, along with a statement that such information is the best approximation available to the broadband provider of the actual speeds and latency experienced by its subscribers.
2011 Advisory Guidance, 26 FCC Rcd at 9415-16.
788 Open Internet Order, 25 FCC Rcd at 17939, para. 56.
789 Id.
790 See, e.g., American Association of Law Libraries, et al Comments at 17; Comcast Comments at 53-54;
CWA/NAACP Comments at 3-4, 17-18; Free Press Comments at 70-71; WTA Comments at 11; Nominum Reply at 6. But see CenturyLink Comments at 34 (raising concerns regarding the additional commercial terms disclosure requirements established in the Title II Order in context of concerns regarding all the additional disclosure obligations).
791 Open Internet Order, 25 FCC Rcd at 17939, para. 56.
792Open Internet Order, 25 FCC Rcd at 17939, para. 56;see also Att’ys General Comments at 21-22 (“[T]ransparency rules ensure that consumers—and regulators—can monitor the data collection and privacy practices of ISPs. Without these protections and without strong disclosure requirements, it would be difficult, if not impossible, for consumers to determine whether their service includes network management policies or other conditions that may interfere with their online use and whether one ISP’s policies differ from another ISP.”).
793 Open Internet Order, 25 FCC Rcd at 17939, para. 56.