FCC Rulemaking: ISPs And The Fight Against Internet Piracy

The latest round of FCC rulemaking sparked a debate on the role internet service providers (ISPs) should play in limiting internet piracy. In an effort to ensure net neutrality, the FCC has proposed sweeping rules to prevent ISPs from controlling the flow of information by limiting users’ access to certain sites that use an inordinate amount of bandwidth.  The proposed rules generally state (Notice of Proposed Rule, Full Text):

1. 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.

2. 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.

3. 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 user’s choice of lawful devices that do not harm the network.

4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers. (Notice p. 38 ¶ 92)

5. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner. (Notice p. 41 ¶ 104)

6. 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. (Notice p. 45 ¶ 119)

The “reasonable network management” exception to the rules garnered a number of comments from concerned open internet advocates. The exception gives ISPs considerable discretion to regulate the flow of copyrighted material. Reasonable network management is defined to include reasonable practices by an ISP to reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns, address traffic that is unwanted by users or harmful, prevent the transfer of unlawful content, or prevent the unlawful transfer of content. (Notice p. 50 ¶ 135). Of principle concern is the broad grant of power to prevent the transfer of unlawful content and unlawful transfer of content. The rules effectively place ISPs in a central role as enforcers of copyright laws.

Currently, ISPs can restrict access and regulate unlawful content. See In re Formal Complaint of Free Press & Pub. Knowledge, 23 F.C.C.R. 13028 (2009). The “reasonable network management” exception merely incorporates this practice into the rules. However, open internet advocates contend that the exception undercuts the force and effect of the rules. Under the guise of “reasonable network management,” an ISP could limit access to sites that consume great amounts of bandwidth, particularly video sites such as YouTube. In essence, this allows ISPs to limit legal use while trying to prevent illegal use.

Critics also focus on the ill-defined “reasonableness” standard. Based on the cost and extent of the operation, it would be unreasonable to require an ISP to sift through the seemingly infinite and continuously expanding number of videos on YouTube in search of copyrighted material. While YouTube seeks to respect copyright laws, the site must be continuously monitored and updated for possible infringements, because users are free to post the videos of their choice. Inevitably, copyrighted material slips through the cracks. Under the reasonable network management provision, an ISP can feasibly restrict access to sites such as YouTube and thereby preserve a large chunk of bandwidth by “preventing the transfer of unlawful content.” ISPs have a natural incentive to preserve bandwidth and thus, will likely err on the side of overprotection to ensure broader access to other customers. Focused on one site and spurred by potential litigation, website mangers may be best equipped and incentivized to sift through the myriad information and ensure that only illegal content is blocked.

Considering the current flow of illegal content, overprotection may be the more appropriate alternative. Illegal file sharing is already an endemic problem. ISPs would be powerless to prevent access to illegal content without a reasonable network management exception. By taking away one of few weapons in the fight against illegal downloads, net neutrality could further stifle creativity and wreak havoc on the creative industry. Reliance on website managers and developers has failed to provide adequate protection thus far, because each infringement is assessed on a case-by-case basis, after infringement has occurred and generally prompted by a threatening letter. Based on the frequency of internet piracy, self-regulation is ineffective to ensure protection of intellectual property rights.

In an attempt to strike a balance between competing interests, the FCC has potentially sacrificed an open internet for a more secure internet. To improve copyright protection, the “reasonable network management” exception favors overregulation by placing regulatory authority in the hands of ISPs that are neither equipped nor incentivized to narrowly tailor their controls to specific instances of copyright infringement.

Ultimately, the new rules solidify the powers of the FCC over the flow of internet traffic. The FCC determined that reasonable network management is a flexible standard, resolved on a case-by-case basis and dependent on whether the commission views the controls as reasonable. See 23 F.C.C.R. 13028. Assuming that the new rules incorporate the same approach, the FCC will have the power to further delineate the rights of internet users to open access and the power of ISPs to monitor and control copyright infringement. In effect, the FCC has mandated net neutrality but has reserved the power to define what neutrality means. Of course, all of this assumes a positive answer to the broader question of whether the FCC actually has the authority to make net neutrality rules without an express Congressional mandate.

The deadline to reply to comments on the proposed rulemaking is March 5th. To weigh in on the issue, follow the instructions on the FCC Website.