On December 23, 2010, the Federal Communications Commission ("Commission" or "FCC") adopted new Open Internet ("network neutrality") rules that place a variety of disclosure and other obligations on certain providers of broadband Internet access. Effectiveness of the net neutrality rules first required review by the Office of Management and Budget (OMB). On June 30, 2011, while OMB review continued, the Chief of the FCC's Enforcement Bureau and the Office of General Counsel issued a Public Notice to assist with compliance with the new transparency rule. ("Enforcement Advisory" released June 30, 2011 ) OMB review was completed early in August, the rules were published in the Federal Register on September 23, 2011, and they are effective as of November 20, 2011.
The proceeding was controversial, illustrated by the 3-2 vote by the Commissioners and the intense statements by each. The rules, the justification for the rules, and the Commission's authority to adopt the rules will be the subject of ongoing policy, legal, and legislative battles in the months and years ahead. Petitions for review were filed in numerous federal circuits, and, after a lottery, the D.C. Circuit Court of Appeals was selected to hear the appeals brought by Verizon and Verizon Wireless and MetroPCS and numerous consumer and public interest groups. We expect the court to hear the case in 2012.
In this memo, we do not discuss the policy basis for the rules or the questions of the FCC's jurisdiction to adopt open Internet rules. Rather, this memo has the more targeted objectives of (1) giving a practical overview in question and answer format of the substance of the new rules and the obligations they impose on affected providers of broadband Internet access services and (2) serving as a general guide for compliance, taking into account the Enforcement Advisory.
We at Kelley Drye hope that you find this practical look at the new open Internet rules useful. If would like a complete copy of this memo or wish to discuss any of the material herein further, we invite you to contact one of our usual Telecommunications attorney contacts at Kelley Drye:
Steve A. Augustino
Thomas W. Cohen
John J. Heitmann
Henry T. Kelly