TLJ Comparison Chart:
Regulation of Broadband Internet Access Service (BIAS)
  FCC Policy Statement
(August 5, 2005)
FCC NPRM
(October 22, 2009)
Verizon Google Proposal
(August 9, 2010)
Waxman Proposal (September 29, 2010) Genachowski Speech (December 1, 2010)
Accessing
Content
"consumers are entitled to access the lawful Internet content of their choice" "Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user's choice over the Internet." Non-wireless BIAS providers are prohibited from preventing their users from "sending and receiving lawful content of their choice". Wireline BIAS providers "shall not block lawful content, applications, or services, or prohibit the use of non-harmful devices, subject to reasonable network management". Wireless BIAS providers "shall not block consumers from accessing lawful Internet websites". Genachowski said that "consumers and innovators have a right to send and receive lawful Internet traffic -- to go where they want and say what they want online ... Thus, the proposed framework would prohibit the blocking of lawful content". (This would apply to both wireline and wireless BIAS.)
Applications
and
Services
"consumers are entitled to run applications and use services of their choice, subject to the needs of law enforcement" "Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user's choice." Non-wireless BIAS providers are prohibited from preventing their users from "running lawful applications and using lawful services of their choice". Wireline BIAS providers "shall not block ... applications, or services". Wireless BIAS providers "shall not block lawful applications that compete with the providerís voice or video communications services in which the provider has an attributable interest". Genachowski said that "consumers and innovators have a right to send and receive lawful Internet traffic -- to go where they want and say what they want online ... Thus, the proposed framework would prohibit the blocking of ... apps, services". (This would apply to both wireline and wireless BIAS.)
Connecting
Devices
"consumers are entitled to connect their choice of legal devices that do not harm the network" "Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the userís choice of lawful devices that do not harm the network. Non-wireless BIAS providers are prohibited from preventing their users from "connecting their choice of legal devices that do not harm the network or service, facilitate theft of service, or harm other users of the service". Wireline BIAS providers "shall not ... prohibit the use of non-harmful devices". (There is no comparable restriction for wireless BIAS providers.) Genachowski said that "consumers and innovators have a right to ... use the devices of their choice. Thus, the proposed framework would prohibit the blocking of ... the connection of non-harmful devices to the network". (This would apply to both wireline and wireless BIAS.)
Competition "consumers are entitled to competition among network providers, application and service providers, and content providers" Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the userís entitlement to competition among network providers, application providers, service providers, and content providers."      
Non-
discrimination
  Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner. Non-wireless BIAS providers are "prohibited from engaging in undue discrimination against any lawful Internet content, application, or service in a manner that causes meaningful harm to competition or to users." "Prevent phone and cable companies from unjustly or unreasonably discriminating against any lawful Internet traffic". Genachowski said that "the proposed framework includes a bar on unreasonable discrimination in transmitting lawful network traffic". (This would apply to wireline, but not wireless, BIAS.)
Prioritization
of Traffic
    "Prioritization of Internet traffic would be presumed inconsistent with the non-discrimination standard, but the presumption could be rebutted."

"A provider that offers a broadband Internet access service complying with the above principles could offer any other additional or differentiated services. Such other services would have to be distinguishable in scope and purpose from broadband Internet access service, but could make use of or access Internet content, applications or services and could include traffic prioritization."

This proposal offers no definition of "differentiated services".

The definition of "reasonable network management practices" includes "to prioritize general classes or types of Internet traffic". (See, below.)
   
Transparency   "Subject to reasonable network management, a provider of broadband Internet access service must 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 part." All BIAS providers, including wireless, are "required to disclose accurate and relevant information in plain language about the characteristics and capabilities of their offerings, their broadband network management, and other practices necessary for consumers and other users to make informed choices." Wireline and wireless BIAS providers "shall disclose accurate and relevant information in plain language regarding the price, performance, and network management practices of its wireline broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop and market new Internet offerings." Genachowski said that "consumers and innovators have a right to know basic information about broadband service, like how networks are being managed". (This would apply to both wireline and wireless BIAS.)
Network
Management
The Policy Statement adds in a footnote that "The principles we adopt are subject to reasonable network management." Reasonable network management consists of:
  (a) reasonable practices employed by a provider of broadband Internet access service to:
    (i) reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns;
    (ii) address traffic that is unwanted by users or harmful;
    (iii) prevent the transfer of unlawful content; or
    (iv) prevent the unlawful transfer of content; and
  (b) other reasonable network management practices.
BIAS providers "are permitted to engage in reasonable network management. Reasonable network management includes any technically sound practice: to reduce or mitigate the effects of congestion on its network; to ensure network security or integrity; to address traffic that is unwanted by or harmful to users, the provider's network, or the Internet; to ensure service quality to a subscriber; to provide services or capabilities consistent with a consumerís choices; that is consistent with the technical requirements, standards, or best practices adopted by an independent, widely-recognized Internet community governance initiative or standard-setting organization; to prioritize general classes or types of Internet traffic, based on latency; or otherwise to manage the daily operation of its network." The above provisions regarding accessing content, applications and services, and connecting devices, are all "subject to reasonable network management". This term means "a network management practice that is appropriate and tailored to achieving a legitimate network management function, taking into account the particular network architecture or technology of the provider. It includes appropriate and tailored practices to reduce or mitigate the effects of congestion on a broadband Internet access providerís network; to ensure network security or integrity; to address traffic that is harmful to or unwanted by users, including premise operators, or to the providerís network, or the Internet; to meet the needs of public safety; and to provide services or capabilities to effectuate a consumerís choices, including parental controls or security capabilities. In determining whether a network management practice is reasonable, the Commission shall consider technical requirements, standards, or best practices adopted by one or more independent, widely-recognized Internet community governance initiative or standard-setting organization. In determining whether a network management practice for wireless broadband Internet access service is reasonable, the Commission shall also consider the technical, operational, and other differences between wireless and other broadband Internet access platforms, including the need to ensure the efficient use of spectrum." Genachowski said that "broadband providers need meaningful flexibility to manage their networks -- for example, to deal with traffic thatís harmful to the network or unwanted by users, and to address the effects of congestion.  Reasonable network management is an important part of the proposal, recognizing that what is reasonable will take account of the network technology and architecture involved."
Enforcement The Policy Statement is silent. The Court of Appeals overturned the FCC's attempt to regulation network management practices. See, story titled "Court of Appeals Vacates FCC's Comcast Order" in TLJ Daily E-Mail Alert No. 2,072, April 7, 2010.   "The FCC would enforce the consumer protection and nondiscrimination requirements through case-by-case adjudication, but would have no rulemaking authority with respect to those provisions."

"The FCC could grant injunctive belief for violations of the consumer protection and non-discrimination provisions. The FCC would impose a forfeiture of up to $2,000,000 for knowing violations of the consumer-protection or non-discrimination provisions. The proposed framework would not affect rights or obligations under existing Federal or State laws that generally apply to businesses, and would not create any new private right of action."

BIAS "and traffic or services using Internet protocol would be considered exclusively interstate in nature" and the FCC "would have exclusive authority to oversee" BIAS.
FCC shall enforce these mandates "through adjudication of complaints", and impose fines of up to"$2,000,000 for violations". There is no private right of action under these mandates. FCC staff added during a news conference that enforcement would be "case by case application of the rules as disputes arise".
More Provisions     (1) Expand the FCC's universal tax and subsidy program to cover broadband.
(2) Subject BIAS providers to disability access requirements.
No threat of "reclassification for two years". See, Rep. Waxman's release.  
Notes:
(1) This chart authored on December 1, 2010.
(2) See, "Text of Proposed Internet Regulation Rules" in TLJ Daily E-Mail Alert No. 2,008, October 23, 2009.