On October 19, 2023 the FCC voted to approve a Notice of Proposed Rulemaking1 to reinstate classification of broadband internet access service (“BIAS”) as a telecommunications service, pursuant to Title II of the Communications Act of 1934, which opens the door for the reestablishment of net neutrality rules. The Commission’s proposed rules, which if adopted will most likely be challenged in federal court, could mean a return to much-stricter regulation of broadband services. We advise that all carriers monitor this proceeding closely and file comments with specific support or concerns.

In the 2015 Open Internet Order,2 the Commission defined BIAS as a telecommunications service under Title II and adopted carefully-tailored rules to prevent specific practices harmful to Internet openness, including blocking, throttling, and paid prioritization, as well as a strong standard of conduct designed to prevent deployment of new practices that would harm the Internet’s openness. However, in 2018 the Commission reversed course and reclassified BIAS as an information service, effectively stripping the FCC of its authority, and eliminated the open Internet conduct rules.3

The recent Notice of Proposed Rulemaking seeks comment on how BIAS should be defined, and if its classification as a telecommunications service is supported by a reasonable reading of the definitional provisions in the Telecommunications Act of 1996. It also solicits comment on the benefits and burdens of once again reclassifying BIAS as a telecommunications service, including:

How consumer’s usage and view of broadband service has changed since 2018, when the Title II classification was reversed, particularly in light of the pandemic.
What additional public policy considerations should be examined.
Whether there are any other regulatory frameworks administered by the Commission that might be affected by the proposed reclassification.
How reinstating the rules from 2015 would ensure that consumers can continue to use their Internet connections for healthcare, education, work, commerce and civic engagement.
Whether open internet rules promote innovation, investment, and free expression, and whether blocking, throttling, paid prioritization, and other potential conduct have the potential to impair public safety communications.
Whether internet service providers (“ISPs”) have the incentive and ability to engage in practices that pose a threat to Internet openness, and whether open Internet promotes ISP investment.
Whether reclassification would enable to the FCC to:
o preempt any inconsistent state laws, thereby enabling the Commission to create a uniform set of open Internet standards that will apply nationwide.
o fulfill its national security responsibilities.
o support its efforts to enhance cybersecurity in the communications sector.
o advance several public safety initiatives, such as sharing data with emergency responders and Wireless Emergency Alerts.
o ensure the nation’s communications systems are resilient and reliable.
o protect consumers’ privacy and data security and relieve them from unlawful robocalls and robotexts.
o support the deployment of wireline infrastructure, by reinstating pole attachment rights.
o support the deployment wireless infrastructure.
o support the availability and affordability of BIAS through USF programs, by allowing broadband only providers to once again participate in the Lifeline program.
o promote competition and consumer choice by subjecting broadband only providers to the Commission’s rules regarding multi-tenant environments.
o promote advances in diversity, equity, inclusion, and accessibility.

The Commission also seeks comment on proposed open internet rules regarding conduct and transparency, including:

A bright-line rule prohibiting ISPs from blocking lawful content, applications, services, or non-harmful devices.
A rule preventing ISPs from impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device.
A rule banning arrangements in which an ISP accepts consideration (monetary or otherwise) from a third party to manage its network in a manner that benefits particular content, applications, services, or devices, which may be waived if it serves the public interest.
A general conduct standard, which prohibits practices that unreasonably interfere with or disadvantage consumers or edge providers.
A transparency rule that would build upon the broadband label requirements, and what additional disclosures should be required.

Comments are due on December 14, 2023, and Reply Comments are due on January 17, 2024. Please contact Dee Herman at [email protected] or Shannon Forchheimer at [email protected] if you would to file Comments or discuss this in greater detail.
__________________