FCC’s Net Neutrality Order is Effective from June 12

FCC's-Net-Neutrality-is-Effective-from-June-12,-2015IP-services that do not travel over broadband Internet access service, like the facilities-based VoIP services used by many cable customers, are not within the scope of the Net Neutrality Order

The Federal Communications Commission (FCC) has come out with Net Neutrality Law called Open Internet Order, a rule which protect and promotes open Internet is effective from June 12, 2015.

The Net Neutrality Law prohibits blocking, throttling, and paid prioritization; a rule preventing broadband providers from unreasonably interfering or disadvantaging consumers or edge providers from reaching one another on the Internet; and provides for enhanced transparency into network management practices, network performance, and commercial terms of broadband Internet access service.

These rules apply to both fixed and mobile broadband Internet access services.

The Net Neutrality Order reclassifies broadband Internet access service as a telecommunications service subject to Title II of the Communications Act. The Order forbears from the majority of Title II provisions, leaving in place a framework that will support regulatory action while simultaneously encouraging broadband investment, innovation, and deployment.

Consumers who subscribe to a retail broadband Internet access service must get what they have paid for—access to all lawful destinations on the Internet.

This Order creates a separate rule to guard against degradation targeted at specific uses of a customer’s broadband connection: A person engaged in the provision of broadband Internet access service, in so far as such person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.

The ban on throttling is necessary both to fulfill the reasonable expectations of a customer who signs up for a broadband service that promises access to all of the lawful Internet, and to avoid gamesmanship designed to avoid the no-blocking rule by, for example, rendering an application effectively, but not technically, unusable. It prohibits the degrading of Internet traffic based on source, destination, or content.

This Net Neutrality Order adopts a rule that establishes that: A person engaged in the provision of broadband Internet access service, in so far as such person is so engaged, shall not engage in paid prioritization.

‘‘Paid prioritization’’ refers to the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either in exchange for consideration (monetary or otherwise) from a third party or to benefit an affiliated entity.

This Net Neutrality Order likewise recognizes that some data services—like facilities-based VoIP offerings, heart monitors, or energy consumption sensors—may be offered by a broadband provider but do not provide access to the Internet generally.

IP-services that do not travel over broadband Internet access service, like the facilities-based VoIP services used by many cable customers, are not within the scope of the open Internet rules, which protect access or use of broadband Internet access service.

Broadband providers have claimed immunity from copyright violations and other liability for material distributed on their networks because they lack control over what end users transmit and receive. Broadband providers are not subject to subpoena in a copyright infringement case because as a provider it ‘‘acts as a mere conduit for the transmission of information sent by others.’’

Acknowledging the unexpressive nature of their transmission function, Congress has also exempted broadband providers from defamation liability arising from content provided by other information content providers on the Internet.

Further, the no-blocking rule only applies to transmissions of lawful content and does not prevent or restrict a broadband provider from refusing to transmit unlawful material, such as child pornography or copyright infringing materials.

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