The Federal Communications Commission voted unanimously on October 22 to begin a rulemaking process to codify principles that would require Internet Service Providers to treat all Internet traffic equally. The Notice of Proposed Rulemaking (pdf, 694kb) sets out an extensive background on the issue and includes statements by each of the five commissioners. See Appendix A on page 65 for the draft rules.

An FCC press release (pdf, 70kb) summarized the effect of the proposed rules:

Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:
1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet;
2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user’s choice;
3. would not be allowed to prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network;
4. would not be allowed to deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers;
5. would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and
6. would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.

In his statement, FCC Chairman Julius Genachowski defined the problem facing the Commission:

“The heart of the problem is that, taken together, we face the dangerous combination of an uncertain legal framework with ongoing as well as emerging challenges to a free and open Internet. Given the potentially huge consequences of having the open Internet diminished through inaction, the time is now to move forward with consideration of fair and reasonable rules of the road, rules that would be enforceable and implemented on a case-by-case basis. Indeed, it would be a serious failure of responsibility not to consider such rules, for that would be gambling with the most important technological innovation of our time.”

The two Republican members of the commission, Meredith Attwell Baker and Robert McDowell, voted to move forward with the rulemaking process but issued statements dissenting in part from the Notice. Commissioner Baker wrote,

“I dissent in part today because, as a threshold matter, I am not convinced that there is a sufficient record to establish that a problem exists that should be addressed by Commission rules. As I have said previously, we should not adopt regulations to address anecdotes where there is no fact-based evidence that persuasively demonstrates the presence of a problem… I also think that important questions are outstanding about our legal authority to regulate broadband Internet access services that we need to explore. We need to better understand the law, engineering, and economics. Before imposing new rules, we need to carefully think through all potential unintended consequences that could harm consumers by increasing prices, impeding innovation, eliminating choices, and/or reducing quality of service.”

The FCC will take public comments on the proposed rules until January 14, 2010, and reply comments will be due March 5, 2010 (see “Comment Filing Procedures,” p. 62). Those wishing to file comments are instructed to refer to GN Docket No. 09-191 and WC Docket No. 07-52. Ars Technica has provided news about the recent upgrade of the FCC’s Electronic Comment Filing System that will be helpful whether you wish to file comments or peruse the comments of others.

The FCC said public comments on this Notice will also be taken on the OpenInternet Blog and at http://openinternet.ideascale.com/. The Notice explains that while the OpenInternet blog permits persons to comment anonymously, “anonymous comments will not be part of the record in this proceeding and accordingly will not be relied on by the Commission in reaching its conclusions in this rulemaking… Should posters provide identifying information, they should be aware that although such information will not be posted on the blog, it will be publicly available for inspection upon request.”

A Government Accountability Office (GAO) review of the Federal Communications Commission (FCC) rulemaking process (pdf, 576kb) discovered that “some stakeholders had access to nonpublic information that could give them an advantage in the rulemaking process.”

The study, undertaken in part to determine how well the FCC follows its own rulemaking process, said GAO staff “were told by 9 of 12 stakeholders—both those involved with our case studies and stakeholders who regularly participated in FCC rulemakings—that they knew when proposed rules were scheduled for an upcoming vote well before FCC released the agenda to the public because they hear this information from FCC bureau staff and commissioner staff. This advance information is not supposed to be disclosed outside of FCC… One stakeholder—representing a large organization that is involved in numerous rulemakings—told us that FCC staff call them and tell them what items are scheduled for a vote.”

Other stakeholders, “who generally represent consumer and public interest groups,” told GAO “that they do not learn this information and do not know which items are scheduled for a vote.” The disparity is important, the report said, because as GAO staff were told by FCC officials, “for stakeholders to successfully make their case before FCC, ‘timing is everything.’” Because a one-week Sunshine Period commences when a proposed rule is scheduled for a vote, during which time no one can lobby FCC officials about the proposed rule, “the stakeholder who learns that a rule has been scheduled for a vote 3 weeks before the vote can have a distinct advantage over a stakeholder who learns about an upcoming vote through the public agenda,” the study found.

The report recommends that the FCC “take steps to ensure equal access to information, particularly in regard to the disclosure of information about proposed rules that are scheduled to be considered by the commission…”