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The Notice seeks comment on draft rules to codify the four principles the Commission articulated in its 2005 Internet Policy Statement. Specifically, under the draft rules, subject to reasonable network management, a provider of broadband Internet access service may not:

1) prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet;
2) prevent any of its users from running the lawful applications or using the lawful services of the user’s choice;
3) prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network; or
4) deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers.

The Notice also seeks comment on draft rules that would codify additional principles of nondiscrimination and transparency:

-The draft nondiscrimination principle would require that, subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.
-The draft transparency principle would require that, subject to reasonable network management, a provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.

Principles Subject to:
• Reasonable Network Management
– Manage congestion on networks
– Address harmful and unwanted traffic (viruses, spam)
– Prevent unlawful content (child pornography)
– Prevent unlawful transfers of content (copyright infringement)
– Other reasonable network management practices
• Emergency Communications
• Law Enforcement
• Public Safety and National and Homeland Security

Recognizing that the proposed framework needs to balance potentially competing interests while helping to ensure an open, safe, and secure Internet, the Notice seeks comment on draft rules that would subject all six principles to reasonable network management.

Under the draft rules, reasonable network management would include reasonable practices employed by a provider of broadband Internet access service:

- to reduce or mitigate the effects of congestion on its network or to address quality-of-service concerns;
- to address traffic that is unwanted by users or harmful;
- to prevent the transfer of unlawful content, such as child pornography; and
- to prevent the unlawful transfer of content, such as to prevent copyright infringement.

The draft rules also permit other reasonable network management practices.

Further, nothing in the draft rules supersedes any obligation a broadband Internet access service provider may have—or limits its ability—to deliver emergency communications, or to address the needs of law enforcement, public safety, or national or homeland security authorities, consistent with applicable law.

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Let's recap the Comcast case, shall we? The company secretly blocked legal uploads of content for years, and then lied about it – repeatedly – to the FCC until they were caught red-handed. Free Press and Public Knowledge filed a complaint, and a bipartisan majority of FCC commissioners agreed with us that Comcast’s actions were illegal. The FCC didn't issue a fine, but told Comcast to stop the practices and to disclose what it had done and how it planned to manage its networks in the future. Comcast complied, but also appealed the order, arguing that the FCC didn’t have the legal authority to impose any rules on Internet access services, and also that the FCC didn't use the proper procedures in decrying its order.

Our filing shows that Comcast’s arguments are baseless. Here’s a quick summary from our legal department at Free Press:

Jurisdiction: Does the FCC have the legal authority to order Comcast to stop blocking Internet traffic? Yes. The FCC issued its order under “ancillary jurisdiction.” In a nutshell, this means that the FCC determined it must issue the order to fulfill other related duties and policies as established by Congress. The doctrine of ancillary jurisdiction started with the FCC's first rules for cable television. Before Congress passed any laws dealing with cable TV, the FCC established rules to guide the nascent industry. The courts upheld these rules – all the way up to the Supreme Court – on the grounds that they were “reasonably ancillary” to the FCC's other statutory duties.

Since then, the D.C. Circuit, the Supreme Court and other courts have upheld a long history of ancillary jurisdiction cases. In its appeal, Comcast has largely ignored this history and seems to suggest that the doctrine shouldn't exist. Certainly, some people believe as a matter of policy that the FCC should not have ancillary jurisdiction. A lot of these people also believe that there shouldn't be an FCC, or at least not an FCC that has any authority to make policy. But like it or not, ancillary jurisdiction is the law. Until Congress says otherwise, the FCC should interpret its authority to the best of its abilities, and courts should review those interpretations with deference to the agency.

Finally, as a policy matter, if the FCC is not authorized to prevent bad behavior by Internet service providers, the resulting damage to competition, service price and quality, and consumer interests is frightening to imagine.

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