Last month the Federal Communications Commission released a public notice seeking comments on how it should proceed in light of a federal appellate court decision that vacated non-discrimination and non-blocking portions of the FCC’s net neutrality rules. In that decision, the court held that the FCC reasonably interpreted section 706 of the Telecommunications Act of 1996 as empowering the agency to “promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here–that they will preserve and facilitate the ‘virtuous circle’ of innovation that has driven the explosive growth of the Internet–is reasonable and is supported by substantial evidence.”
The court left intact the transparency or management disclosure portion of the FCC’s net neutrality rules. Under the transparency rules, both fixed and mobile broadband providers must publicly disclose accurate information regarding network management practices, performance, and commercial terms of their broadband internet access services.
The court was not asked to address how the FCC should ensure equitable treatment of private and municipal broadband providers regarding their obligations to provide the public with accurate network management information. FCC chairman Tom Wheeler during the release of the agency’s public notice on going forward with new net neutrality rules transmitted his desire to enhance broadband competition by addressing legal restrictions on state and city abilities to provide broadband services to their communities.
Having worked for state and local governments I can already hear the arguments that municipalities will make when confronted by the issue of how best to share this information with the public. Should they provide periodic updates on their websites? Should they make freedom of information exceptions for public requests for network management information? What impact would providing network management information on broadband have on providing say information on city provided utilities? Within the city or state government who will have responsibility to authorize release of the information?
Equity for all broadband providers would require that municipalities receive no slack on complying with transparency rules. The FCC should not fall for the budget constraints argument that will pervade all city and state objections to providing accurate information. If municipalities want to play the role of competitive provider, they will have to carry the regulatory burden that comes with competition.