Internet Freedom Order
218. Evaluating Network Management Practices. The 2014 Open Internet NPRM proposed that the Commission adopt the same approach for determining the scope of network management practices considered to be reasonable as adopted in the 2010 Open Internet Order. 562 We recognize the need to ensure that the reasonable network management exception will not be used to circumvent the open Internet rules while still allowing broadband providers flexibility to experiment and innovate as they reasonably manage their networks.563 We therefore elect to maintain a case-by-case approach. The case by-case review also allows sufficient flexibility to address mobile-specific management practices because, by the terms of our rule, a determination of whether a network management practice is reasonable takes into account the particular network architecture and technology. We also note that our transparency rule requires disclosures that provide an important mechanism for monitoring whether providers are inappropriately exploiting the exception for reasonable network management.564
219. To provide greater clarity and further inform the Commission’s case-by-case analysis, we offer the following guidance regarding legitimate network management purposes. We also note that, similar to the 2010 reasonable network management exception, broadband providers may request a declaratory ruling or an advisory opinion from the Commission before deploying a network management practice, but are not required to do so.
220. As with the network management exception in the 2010 Open Internet Order, broadband providers may implement network management practices that are primarily used for, and tailored to, ensuring network security and integrity, including by addressing traffic that is harmful to the network, such as traffic that constitutes a denial-of-service attack on specific network infrastructure elements.566 Likewise, broadband providers may also implement network management practices that are primarily used for, and tailored to, addressing traffic that is unwanted by end users.567 Further, we reiterate the guidance of the 2010 Open Internet Order that network management practices that alleviate congestion without regard to the source, destination, content, application, or service are also more likely to be considered reasonable network management practices in the context of this exception.568 In evaluating congestion management practices, a subset of network management practices, we will also consider whether the practice is triggered only during times of congestion and whether it is based on a user’s demand during the period of congestion.569
221. We also recognize that some network management practices may have a legitimate network management purpose, but also may be exploited by a broadband provider. We maintain the guidance underlying the 2010 Open Internet Order’s case-by-case analysis that a network management practice is more likely to be found reasonable if it is transparent, and either allows the end user to control it or is application-agnostic.570
222. As in 2010, we decline to adopt a more detailed definition of reasonable network management.571 For example, one proposal suggests that the Commission limit the circumstances in which network management techniques can be used so they would only be reasonable if they were used temporarily, for exceptional circumstances, and have a proportionate impact to solve a targeted problem.572 We acknowledge the advantages a more detailed definition of network management can have on long-term network investment and transparency, but at this point, there is not a need to place such proscriptive limits on broadband providers.573 Furthermore, a more detailed definition of reasonable network management risks quickly becoming outdated as technology evolves.574 Case-by-case analysis will allow the Commission to use the conduct-based rules adopted today to take action against practices that are known to harm consumers without interfering with broadband providers’ beneficial network management practices.575
223. We believe that the reasonable network management exception provides both fixed and mobile broadband providers sufficient flexibility to manage their networks. We recognize, consistent with the consensus in the record, that the additional challenges involved in mobile broadband network management mean that mobile broadband providers may have a greater need to apply network management practices, including mobile-specific network management practices, and to do so more often to balance supply and demand while accommodating mobility.576 As the Commission observed in 2010, mobile network management practices must address dynamic conditions that fixed, wired networks typically do not,577 such as the changing location of users578 as well as other factors affecting signal quality.579 The ability to address these dynamic conditions in mobile network management is especially important given capacity constraints many mobile broadband providers face.580 Moreover, notwithstanding any limitations on mobile network management practices necessary to protect the open Internet, we anticipate that mobile broadband providers will continue to be able to use a multitude of tools to manage their networks,581 including an increased number of network management tools available in 4G LTE networks.
561 For purposes of the open Internet rules, prioritization of affiliated content, applications, or services is also considered a form of paid prioritization. See supra Section III.C.1.c.
562 See 2014 Open Internet NPRM, 29 FCC Rcd at 5583, para. 61. The Commission decided to determine the scope of reasonable network management on a case-by-case basis in the Open Internet Order and we maintain those same factors today. See 2010 Open Internet Order, 25 FCC Rcd at 17952-56, paras. 84-92.
563 See, e.g., CDT Comments at 9 (“[R]ules in this area should not be rigid. They should not attempt to specify in advance which particular technical practices should be prohibited or allowed. Detailed technical choices are best left to network operators, since they are in the best position to understand the technical consequences and tradeoffs associated with different choices. Network operators also need appropriate flexibility to devise new tactics and respond to new threats.”); CenturyLink Comments at 23 (“The NPRM also correctly concludes that the Commission should retain the existing reasonable network management practices exception to its Open Internet rules and continue to develop the scope of that exception on a case-by-case basis. This exception is critical to ensuring that broadband providers have the flexibility to manage their networks in a way that maintains network security and integrity, addresses harmful traffic, and mitigates against the effects of congestion.”); ITIF Reply at 14 (“Applying strict neutrality rules, dictating traffic management in the lower layers of a wireless network, is largely unworkable.”); TIA Comments at 3 (advocating for “an expansive definition of ‘reasonable network management’ that reflects the nature and needs of contemporary broadband Networks”); Alcatel-Lucent Comments at 17 (“[T]he Commission should continue to allow reasonable network management practices coupled with disclosure policies that provide consumers with the appropriate level of transparency into these practices.”). But see CTIA Reply at 26 (noting that it would not be “sufficient to rely on a ‘reasonable network management’ exception to warrant application of [the no-blocking rule] – as described below, that approach would necessarily chill innovation and harm, not help, consumers”).
564 See supra Section III.C.3.
565 See 2010 Open Internet Order, 25 FCC Rcd at 17952-53, para. 84, n.262 (citing 47 C.F.R. §1.2 which provides for “a declaratory ruling terminating a controversy or removing uncertainty”); see also infra Section III.E.2.a.ii.
566 See 2010 Open Internet Order, 25 FCC Rcd at 17954, para. 88; see also, e.g., Financial Service Roundtable Reply at 3 (stating that the open Internet rules should “allow ISPs to block cyber attacks or similar threats to information systems or networks that are transiting their systems, regardless of the traffic stream’s ultimate destination”); EFF Reply at 12 (stating that broadband providers’ “blocking content that would actually harm their network (e.g. DDOS attacks) . . . would obviously fall into the category of reasonable network management”).
567 See 2010 Open Internet Order, 25 FCC Rcd at 17954-55, paras. 88-90.
568 See id. at 17954, para. 87 (stating that the principles guiding case-by-case evaluations of network management practices include “transparency, end user control, and use- (or application-) agnostic treatment”); id. at 17945, para. 73 (elaborating upon the concept of “use-agnostic” discrimination); see also Mozilla Reply at 22 (stating that the Commission’s conception of reasonable network management could “separate application-specific from applicationagnostic discrimination”). As in the no throttling rule and the no unreasonable interference or unreasonable disadvantage standard, we include classes of content, applications, services, or devices.
569 See BITAG Congestion Report at 2, 14.
570 2010 Open Internet Order, 25 FCC Rcd at 17954, para. 87. See BITAG Congestion Report at 45 (“User- and application- agnostic congestion management practices are useful in a wide variety of situations, and may be sufficient to accommodate the congestion management needs of network operators in the majority of situations. . . . [and i]f application-based congestion management practices are used, those based on a user’s expressed preferences are preferred over those that are not.”); David D. Clark, John Wroclawski, Karen R. Sollins, and Robert Braden, Tussle in Cyberspace: Defining Tomorrow’s Internet, IEEE/ACM Transactions on Networking, vol. 13 no. 3 (2005) (“One of the most respected and cited of the Internet design principles is the end-to-end arguments, which state that mechanism should not be placed in the network if it can be placed at the end node, and that the core of the network should provide a general service, not one that is tailored to a specific application.”).
571 2010 Open Internet Order, 25 FCC Rcd at 17953, para. 85
572 Access Comments at 18 (“Traffic management techniques are ‘reasonable’ when deployed for the purpose of technical maintenance of the network, namely to block spam, viruses, or denial of service attacks, or to minimize the effects of congestion, whereby equal types of traffic should be treated equally . . . [and] should only be used on a temporary basis, during exceptional moments, and their impact must be necessary, proportionate and targeted to solve the particular problem [and] . . . have transparent and comprehensible disclosure for users . . . .”).
573 MIT Media Lab Comments at 13 (“[A] more stringent view of the limitation of network management . . . insure[s] that there are no artificial or industrially created synthetic control points placed between an application and the flow of bits associated with it.”). While some commenters note that there have not been any major technological changes in how broadband providers manage traffic since 2010, others indicate that broadband providers have acquired additional techniques that allow them to manage traffic in real-time. Compare Sandvine Comments at 12 (stating that there have not been any big technological changes in how service providers can manage traffic since 2010) with Internet Association Comments at 3 (“New technologies have granted broadband Internet access providers an unprecedented ability to discriminate and block content in real time.”).
574 Verizon Dec. 5, 2014 Ex Parte Letter at 2.
575 Beneficial practices include protecting their Internet access services against malicious content or offering a service limited to offering “family friendly” materials to end users who desire only such content. 2010 Open Internet Order, 25 FCC Rcd at 17954-55, paras. 88-89.
576 See, e.g., AT&T Reply at 82 (“The unique challenges presented by mobile users and the unpredictable demands placed on mobile networks due to the inherent mobility of their users require a robust set of tools that can be used to mitigate the impact of potential congestion on consumers’ experience with a network.”); id. at 80-83; OTI Comments at 57 (“A flexible approach to defining reasonable network management can accommodate exceptions appropriate to different technologies and platforms …without creating an arbitrary distinction and preference for mobile networks.”) (internal quotation marks omitted); T-Mobile Reply at 11 (“These important distinctions between fixed and mobile networks show that it would be inadvisable to impose new net neutrality rules, especially those designed for fixed networks, on mobile broadband networks.”); CDT Comments at 20 (“The allowance for reasonable network management provides ample flexibility for carriers to address any network management challenges that are specific to mobile wireless networks, so no broad exemption is warranted.”); Microsoft Comments at 27 (“[A]ny technical or operational differences between mobile and fixed networks can be accommodated by recognizing the meaning of ‘reasonable network management’ might vary depending on the particular type of network.”); Public Knowledge Comments at 24 (“[T]o the extent that a technical difference between wireless and wireline exist, reasonable network management policies can accommodate it.”); Mozilla Comments at 21 (“There remain technical distinctions between mobile and fixed networks, some of which—such as management of upload congestion—are inherent in the nature of the technologies.”); Vonage Comments at 32 (“Rather than adopt less protection, the Commission can instead distinguish between wireline and wireless under the principle of reasonable network management.”) TIA Comments at 11-15 (stating that the Commission must consider “the engineering realities of the distinctly different types of broadband platforms [wireline, cable, mobile]” when considering regulations, especially on network management”).
577 2010 Open Internet Order, 25 FCC Rcd at 17956, para. 94.
578 Letter from Scott Bergmann, Vice President—Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, (filed Oct. 6, 2014), Attach., Dr. Jeffrey H. Reed and Dr. Nishith D. Tripathi, Net Neutrality and Technical Challenges of Mobile Broadband Networks at 14 (CTIA Oct. 6, 2014 Ex Parte Letter) (arguing that as channel conditions degrade (such as when a mobile user moves toward the periphery of a cell site) “[e]ven to preserve a given data rate, the user may need 36 times more radio resources”).
579 See, e.g., TIA Reply at 8 (“The allocation [of radio resources] must factor in the number of active user devices, capabilities of these devices, capabilities of the base station in the area, prevailing channel conditions of different devices on the network, distance from the serving cell, and target QoS of different services to determine the amount of radio resources for individual users.”); Nokia Reply at 5 (“Mobile networks can be affected by physical obstructions, solar activity, electromagnetic disturbances, and distance to a much greater degree than wireline broadband networks.”); T-Mobile Comments at 5-7.
580 T-Mobile Comments at 6.
581 Such tools have been referenced in various ex parte filings. See, e.g., Letter from Jonathan Spalter, Chair, Mobile Future, to Marlene H. Dortch, Secretary, FCC, (filed Sept. 12, 2014), Attach., Rysavy Research, How Is Mobile Different: Considerations for the Open Internet Rulemaking at 11-12 (citing the need for adjustments to transmitted power and sustainable data rates); Letter from Scott Bergmann, CTIA to Marlene H. Dortch, Secretary, FCC, GN Docket Nos. 14-28, 10-127, Attach., Dr. Jeffrey H. Reed and Dr. Nishith D. Tripathi, Net Neutrality and Technical Challenges of Mobile Broadband Networks at 16, 20-21 (filed Sept. 4, 2014) (citing the need for scheduling user access to the network based upon dynamic measurements of signal quality).