1. Kristopher E. Twomey Law Office of Kristopher E. Twomey, P.C.
The Sky Is NOT Falling: FCC Decision Applying Title II to Broadband Internet
Kristopher E. Twomey
Law Office of Kristopher E. Twomey, P.C.
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2. Just seeking firmer ground to enforce them aka Regulatory Hail Mary
How did we get here?
Title II & Section 706
2005- Broadband is an “Information Service”- Tough Luck for DSL ISPs
2010- Open Internet Order- Section 706
2012- Verizon Appeal at DC Circuit-No blocking & anti-discrimination rules
SAME
2010 RULES
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Just seeking firmer ground to enforce them aka Regulatory Hail Mary

3. What Is In This Thing?
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13 pages of rules, 300 pages of legal justification for them 60 pages of Commissioners whining

4. Same Three Principles From 2010
No Blocking
No Throttling
No Paid Prioritization
A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management.
A person engaged in the provision of broadband Internet access service, insofar 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.
A person engaged in the provision of broadband Internet access service, insofar 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 (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entity.

5. Enhanced Transparency Rule
Consumer- Focused
Promotional Rates and All Fees/Surcharges
Data Caps and Allowances
Network Performance- Speed, Latency, and Now Including Packet Loss
Network Management Practices Affecting Performance
Safe Harbor Format to be provided
Wait! Small Carrier Exemption For Network Performance, for now anyway

6. Back to the Open Internet Compliance Statement
A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its 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, market, and maintain Internet offerings.
Consumers Can File Informal Complaints at FCC for Failure to Comply
Must Post to Website
Set-up “Legal” link and post OICS, AUP, TOS, and Privacy Policy

7. What Is “Reasonable Network Management”
Management Practice
Technical Network Justification
Tailored to Achieve Legitimate Purpose
Block P2P
Block Port 25
Fairly Allocate Bandwidth
Prevent Spam
No Better Way to Do It?
A network management practice is a practice that has a primarily technical network management justification, but does not include other business practices. A network management practice is reasonable if it is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service.

8. Which Title II Sections Applied
Sections 201, 202, and 208
Common Carrier
Section 201- Just and reasonable charges and practices
Section 202- Non-discrimination
Section 208- Formal Complaints
Sections 222, 225/255/251(a)(2)
Consumer Friendly
Section 222- Protecting Consumer Privacy (think CPNI)
Section 225/251/255(a)(2)- Ensuring Disabilities Access
Section 224- Pole Attachment for broadband only (Still Only for CLECs)
Section 254
USF
Universal Service Fund requirements do apply
Not yet anyway…

9. Regulation of Interconnection
Netflix Can Now Ask the FCC to Review Deals
Commercial Arrangements - Transit
Admission they don’t understand the market
But, they want to ensure consumer access
“Watch, learn, and act as Required”
Principles not applicable to Transit Deals
Open Internet Rules Do Not Apply

10. Exemptions Non-broadband Internet Access Data Services
VoIP
Nest
Heart Monitors
Non-broadband Internet Access Data Services
Narrowly tailored to achieve a legitimate purpose
Case by Case
Reasonable Network Management
Doesn’t apply to VPNs, CDNs, DNS, caching, hosting/data storage, Internet backbone
Coffee shop wifi
BIAS Definition

11. FCC Enforcement of Order
Investigations by Enforcement Bureau
Requested by Consumers, ISPs, Non-profits
Open Internet Ombudsperson
Formal and Informal Complaints
Slamming as an example
Enforcement Advisories and Advisory Opinions
Evolving Regulation
May seek outside opinions from industry-standard setting bodies

12. What the Order Doesn’t Do
Regulate rates (§205)
Require tariffs (§203)
Require tedious reports (§211, 213, 215, )
Apply FCC fees to broadband
Require §214 licenses
Consumers pay more?
Allow state and local taxes
Local loop/fiber unbundling (under §251(c), 252, 256)
Mandate settlement –free peering and traffic exchange
Require FCC permission to discontinue services or approve transfers of control (§214)
Increase pole attachment rates
Apply slamming provisions (§258)

13. Questions? Kris Twomey kris@lokt.net 202 681-1850
Microsoft Engineering Excellence
Questions? Kris Twomey
Microsoft Confidential