On September 21, 2009, Federal Communications Commission (“FCC” or “Commission”) Chairman Julius Genachowski announced his support for proposed new rules that he believes the Commission must enact to supplement the FCC‘s existing network neutrality principles.

In 2005, the Commission had previously announced, through a Policy Statement, four open Internet principles intended to encourage broadband deployment and preserve the “open and interconnected nature of public Internet.” Those principals affirm that consumers are entitled to access the lawful Internet content, applications, and services of their choice, are entitled to attach non-harmful devices to the network, and are entitled to competition among network, services and content providers.

In his September 21^st announcement, proposed two new principles. According to the FCC‘s Public Notice, the first newly announced principle “would prevent Internet access providers from discriminating against particular Internet content or applications, while allowing for reasonable network management.” In essence this principle is designed to prevent service providers from slowing the traffic to and from competing services. “The second principle would ensure that Internet access providers are transparent about the network management practices they implement.” The Chairman also stated that, under the new rules, all six principles would “apply to all platforms that access the Internet.”

One area of ongoing confusion has been whether the Commission‘s original four open Internet principles were binding on providers of Internet service. Chairman Genachowski announced that the Commission would resolve this issue by codifying all six principles through a formal rulemaking procedure. Formally adopting the principles as rules would address any concerns about whether they are binding and would make them applicable to a wider range of providers.

It is expected that Chairman Genachowski will seek to initiate the Notice of Proposed Rulemaking (“NPRM”) at the FCC‘s October meeting. In his announcement, the Chairman stated that the NPRM will seek public comment “on the proposed rules and their application, such as how to determine whether network management practices are reasonable, what information broadband providers should disclose about their network management practices and how the rules apply to differing platforms, including mobile Internet access services.”

CLIENT ADVISORY

Interested clients are encouraged to monitor this proceeding and submit relevant comments. Clients wishing to file comments with the FCC regarding this matter should contact Jonathan Marashlian at jsm@commlawgroup.com or 703-714-1313.