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.
There appear to be several types of situations that could
justify a broadband Internet access service provider's acting
inconsistently with the six open Internet principles described above.
First, if a broadband Internet access service provider's network is or
appears likely to become congested to such a degree that an individual
user's Internet access is noticeably affected, the broadband Internet
access service provider may be justified in taking reasonable steps to
reduce or mitigate the adverse effects of that congestion or to address
quality-of-service concerns.
Second, it may be reasonable for a provider to take measures to counter traffic
that is harmful or unwanted by users. Third, if particular content or a
particular transfer of content is prohibited by law, the provider may be justified
in not carrying that traffic. Finally, there may be other situations in which
network management practices do not fall into one of these categories but may
nevertheless be reasonable. We address each of these categories in turn.
First, we propose that a broadband Internet access service
provider may take reasonable steps to reduce or mitigate the adverse
effects of congestion on its network or to address quality-of-service
concerns. What constitutes congestion, and what measures are reasonable
to address it, may vary depending on the technology platform for a
particular broadband Internet access service. For example, if cable
Internet subscribers in a particular neighborhood are experiencing
congestion, it may be reasonable for an Internet service provider to
temporarily limit the bandwidth available to individual users in that
neighborhood who are using a substantially disproportionate amount of
bandwidth until the period of congestion has passed. Alternatively, a
broadband Internet service provider might seek to manage congestion by
limiting usage or charging subscribers based on their usage rather than
a flat monthly fee. Some have suggested it would be beneficial for a
broadband provider to protect the quality of service for those
applications for which quality of service is important by implementing
a network management practice of prioritizing classes of latency-
sensitive traffic over classes of latency-insensitive traffic (such as
prioritizing all VoIP, gaming, and streaming media traffic). Others
have suggested that such a practice would be difficult to implement in
a competitively fair manner and could undermine the benefits of a
nondiscrimination rule, including keeping barriers to innovation low.
We believe that it would likely not be reasonable network management to
block or degrade VoIP traffic but not other services that similarly
affect bandwidth usage and have similar quality-of-service
requirements. Nor would we consider the singling out of any particular
content (i.e., viewpoint) for blocking or deprioritization to be
reasonable, in the absence of evidence that such traffic or content was
harmful. We recognize that in a past adjudication, the Commission
proposed that for a network management practice to be considered
``reasonable,'' it ``should further a critically important interest and
be narrowly or carefully tailored to serve that interest.'' We believe
that this standard is unnecessarily restrictive in the context of a
rule that generally prohibits discrimination subject to a flexible
category of reasonable network management.
Second, we propose that broadband Internet access service
providers may address harmful traffic or traffic unwanted by users as a
reasonable network management practice. For example, blocking spam
appears to be a reasonable network management practice, as does
blocking malware or malicious traffic originating from malware, as well
as any traffic that a particular user has requested be blocked (e.g.,
blocking pornography for a particular user who has asked the broadband
Internet access service provider to do so).
Third, we propose that broadband Internet access service
providers would not violate the principles in taking reasonable steps
to address unlawful conduct on the Internet. Specifically, we propose
that broadband Internet access service providers may reasonably prevent
the transfer of content that is unlawful. For example, as the
possession of child pornography is unlawful, consistent with applicable
law, it appears reasonable for a broadband Internet access service
provider to refuse to transmit child pornography. Moreover, it is
important to emphasize that open Internet principles apply only to
lawful transfers of content. They do not, for example, apply to
activities such as the unlawful distribution of copyrighted works,
which has adverse consequences on the economy and the overall broadband
ecosystem. In order for network openness obligations and appropriate
enforcement of copyright laws to co-exist, it appears reasonable for a
broadband Internet access service provider to refuse to transmit
copyrighted material if the transfer of that material would violate
applicable laws. Such a rule would be consistent with the Comcast
Network Management Practices Order, in which the Commission stated that
``providers, consistent with federal policy, may block transmissions that
violate copyright law.''
Finally, we propose that broadband Internet access service
providers may take other reasonable steps to maintain the proper
functioning of their networks. We include this catch-all for two
reasons. First, we do not presume to know now everything that providers
may need to do to provide robust, safe, and secure Internet access to
their subscribers, much less everything they may need to do as
technologies and usage patterns change in the future. Second, we
believe that additional flexibility to engage in reasonable network management
provides network operators with an important tool to experiment and
innovate as user needs change.
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