Federal policy towards the Internet, as embodied in Section 230(b) of the Communications Act of 1934, as amended, is “to preserve the vibrant and competitive free market that presently exists for the Internet” and “to promote the continued development of the Internet.” In Section 706 of the Communications Act, Congress instructs the FCC to encourage “the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.”
Basing its authority on these two provisions, the FCC issued a policy statement intended to offer guidance to network owners regarding the rights of consumers accessing the Internet through their networks (the FCC Network Management Principles). The FCC acknowledged that information service providers (those who provide access to the Internet) are not governed by stringent Title II common carrier regulations, but asserted that it had jurisdiction to issue the Internet Policy Statement pursuant to its Title I ancillary jurisdiction.
In the FCC’s assessment, Title I ancillary jurisdiction granted the FCC ample authority to take steps to ensure that broadband networks are widely deployed, open, affordable and accessible to all and to ensure that Internet services are operated in a neutral manner. Accordingly, the FCC adopted the following principles to encourage broadband deployment and to preserve and promote the open and interconnected nature of the public Internet:
- consumers are entitled to access the lawful Internet content of their choice;
- consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement;
- consumers are entitled to connect their choice of legal devices that do not harm the network; and
- consumers are entitled to competition among network providers, application providers, service providers, and content providers.
Upon adopting these precepts the FCC expressly stated that it was “not adopting rules in this policy statement” and that the principles adopted were “subject to reasonable network management.” The Commission termed the Internet Policy Statement to be guidance and insight into its approach to the Internet that was intended to be consistent with Congressional directives. The Commission did not put the network management principles out for public comment, nor did it publish the principles in the Code of Federal Regulations.
- 47 U.S.C. §230(b)(2).
- Id. §157 (incorporating section 706 of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996)).
- In the Matters of the Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of Regulatory Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review — Review of Computer III and ONA Safeguards and Requirements; Inquiry Concerning High-Speed Access to the Internet Over Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for Broadband Access to the Internet Over Cable Facilities, 20 FCC Rcd 14986 (2005) [hereinafter "FCC Network Management Principles"].
- Id. at 14988.