Since the beginning of the year, when a federal court struck down key provisions of the FCC’s “net neutrality” rules,[1] industry observers – from service providers to end users – have speculated how the Commission will respond to the court’s ruling.  Would the Commission decide to regulate broadband access to the Internet as a public utility in order to guarantee “net neutrality”, or would it give carriers free rein to cut commercially reasonable but discriminatory rates with content providers, imposing premium fees for a guaranteed “fast lane” of service?

On May 15, the FCC took a major step toward addressing these questions.  In a Notice of Proposed Rulemaking (“NPRM”), the Commission has invited the public to comment on a new set of rules which, if adopted, would dramatically alter the Internet as we know it.  Broadly, the Commission proposes to (1) expand its existing transparency rule to require broadband providers to provide broader and more specific information to edge providers and consumers; (2) adopt a no-blocking rule that would allow individualized bargaining above a minimum level of access to a broadband providers’ subscribers; and (3) adopt a new rule that would prohibit “commercially unreasonable” practices “that, based on the totality of the circumstances, threaten to harm Internet openness and all that it protects.”  Addressing the court’s critique of its previous net neutrality rules, the Commission also seeks comment on whether it should reclassify broadband Internet access service as a common carrier offering, subject to Title II of the Communications Act. Continue reading →

On February 12, 2014, the National Institute of Standards and Technology (“NIST”) released its long-awaited Framework for Improving Critical Infrastructure Cybersecurity.[1]  Mandated by President Obama one year ago in his February 12, 2013 Executive Order 13636[2] and Presidential Directive,[3] the Framework consists of standards, guidelines, and practices to promote the protection of critical US infrastructure.  Developed through a public-private consultative process overseen by NIST, the Framework is designed to provide a common language to address and manage cyber risk in a cost-effective way based on business needs, without placing additional regulatory requirements on businesses.  While compliance with the Framework is voluntary for the time being, that situation could change, and companies in industries that the Framework addresses should familiarize themselves with its mandate. Continue reading →

On January 14 of this year, the U.S. Court of Appeals for the District of Columbia Circuit struck down key provisions of the FCC’s “net neutrality” rules on the ground that they impermissibly imposed common carrier regulation on broadband providers.[1]  At the same time, the court held that the FCC does have statutory authority to impose regulations, and upheld the Commission’s judgment that Internet freedom encourages broadband investment.  With this mandate, the court remanded the FCC’s Open Internet Order to the Commission for further proceedings consistent with its opinion. Continue reading →