Prompt and effective enforcement of the rules adopted in this Order is crucial to preserving an open Internet and providing clear guidance to stakeholders. We anticipate that many of the disputes that will arise regarding alleged open Internet violations—particularly those centered on engineering-focused questions—will be resolvable by the parties without Commission involvement. We thus encourage parties to endeavor to resolve disputes through direct negotiation focused on relevant technical issues, and to consult with independent technical bodies. Many commenters endorse this approach.1
Should issues develop that are not resolved through private processes, the Commission will provide backstop mechanisms to address such disputes.2 In the Open Internet NPRM, the Commission proposed to enforce open Internet rules through case-by-case adjudication, a proposal that met with almost universal support among commenters.3 The Commission also sought comment on whether it should adopt complaint procedures specifically governing alleged violations of open Internet rules, and whether any of the Commission’s existing rules provide a suitable model.4
Many commenters urge the Commission to adopt informal complaint procedures that equip end users and edge providers with a simple and cost-effective option for calling attention to open Internet rule violations.5 We agree that end users, edge providers, and others should have an efficient vehicle to bring potential open Internet violations to the Commission, and indeed, such a vehicle is already available. Parties may submit complaints to the Commission pursuant to Section 1.41 of the Commission’s rules.6Unlike formal complaints, no filing fee is required. We recommend that end users and edge providers submit any complaints through the Commission’s website, at http://esupport.fcc.gov/complaints.htm. The Consumer and Governmental Affairs Bureau will also make available resources explaining these rules and facilitating the filing of informal complaints. Although individual informal complaints will not typically result in written Commission orders, the Enforcement Bureau will examine trends or patterns in complaints to identify potential targets for investigation and enforcement action.7
B.Formal Complaints
Many commenters propose that the Commission adopt formal complaint procedures to address open Internet disputes.8 We agree that such procedures should be available in the event an open Internet dispute cannot be resolved through other means. Formal complaint processes permit anyone—including individual end users and edge providers—to file a claim alleging that another party has violated a statute or rule, and asking the Commission to rule on the dispute. A number of commenters suggest that existing Commission procedural rules could readily be utilized to govern open Internet complaints.9
We conclude that adopting a set of procedures based on our Part 76 cable access complaint rules will best suit the needs of open Internet disputes that may arise.10 Although similar to the complaint rules under section 208, we find that the Part 76 rules are more streamlined and thus preferable.11
Under the rules we adopt today, any person may file a formal complaint.12Before filing a complaint, a complainant must first notify the defendant in writing that it intends to file a complaint with the Commission for violation of rules adopted in this Order.13 After the complaint has been filed, the defendant must submit an answer, and the complainant may submit a reply.14 In some cases, the facts might be uncontested, and the proceeding can be completed based on the pleadings. In other cases, a thorough analysis of the challenged conduct might require further factual development and briefing.15 Based on the record developed, Commission staff (or the Commission itself) will issue an order determining the lawfulness of the challenged practice.
As in other contexts, complainants in open Internet proceedings will ultimately bear the burden of proof to demonstrate by a preponderance of the evidence that an alleged violation of the rules has occurred.16 A number of commenters propose, however, that once a complainant makes a prima facie showing that an open Internet rule has been violated, the burden should shift to the broadband provider to demonstrate that the challenged practice is reasonable.17 This approach is appropriate in the context of certain open Internet complaints, when the evidence necessary to apply the open Internet rules is predominantly in the possession of the broadband provider. Accordingly, we require a complainant alleging a violation of the open Internet rules to plead fully and with specificity the basis of its claims and to provide facts, supported when possible by documentation or affidavit, sufficient to establish a prima facie case of an open Internet violation. In turn, the broadband provider must answer each claim with particularity and furnish facts, supported by documentation or affidavit, demonstrating the reasonableness of the challenged practice. At that point, the complainant will have the opportunity to demonstrate that the practice is not reasonable. Should experience reveal the need to adjust the burden of proof in open Internet disputes, we will do so as appropriate.
Several commenters urge the Commission to adopt timelines for the complaint process.18 We recognize the need to resolve alleged violations swiftly, and accordingly will allow requests for expedited treatment of open Internet complaints under the Enforcement Bureau’s Accelerated Docket procedures.19
In resolving formal complaints, the Commission will draw on resources from across the agency—including engineering, economic, and legal experts—to resolve open Internet complaints in a timely manner. In addition, we will take into account standards and best practices adopted by relevant standard-setting organizations, and such organizations and outside advisory groups also may provide valuable technical assistance in resolving disputes. Further, in order to facilitate prompt decision-making, when possible we will resolve open Internet formal complaints at the bureau level, rather than the Commission level.20
