FCC Releases Adopted Net Neutrality NPRM

On October 20, 2023, the FCC released the Notice of Proposed Rulemaking (“NPRM”) seeking comment on reinstating the FCC’s net neutrality rules.  The item was adopted at the October Open Meeting.

Specifically, the NPRM:

  • Proposes to Reclassify Broadband Internet Access and Mobile Internet Access Services:  The FCC proposes to return broadband internet access service (“BIAS”) to its classification as a telecommunications service under Title II of the Communications Act and to reclassify mobile BIAS as a commercial mobile service.  In support of this proposal, the FCC tentatively concludes that consumers perceive and use BIAS as a standalone service that provides telecommunications and that ISPs are marketing BIAS as a telecommunications service that is essential to access data-related “add-on” offerings.   More specifically, the FCC also tentatively concludes that reclassification:
    • Is necessary for an open Internet:  The FCC tentatively concludes that reclassification will enable the FCC to safeguard the open Internet.  It also tentatively concludes that reclassification will permit the FCC to establish a uniform, nationwide framework for ISPs, a lack of which is “hindering the broadband market” and increasing compliance requirements for small ISPs who currently must comply with a patchwork of state regulations.
    • Is necessary to safeguard national security and preserve public safety:  the FCC tentatively concludes that reclassification will reinforce the FCC’s efforts to protect the national defense by protecting networks from entities that pose threats to national security and law enforcement.  The FCC also tentatively concludes that reclassification will reinforce the FCC’s authority to enhance cybersecurity in the communications sector, will enable the FCC to advance public safety initiatives, and enhance the FCC’s ability to ensure communications networks are resilient and reliable.
    • Is necessary to protect consumer privacy and data security:  The FCC tentatively concludes that reclassification will support existing FCC efforts to safeguard consumers’ privacy and data security.  The also FCC seeks comment on whether reclassification will enhance the FCC’s ability to combat illegal robocalls and robotexts.
    • Is necessary to support access to BIAS:  The FCC seeks comment on whether the proposed classification will support the FCC’s goals to support investment in and deployment of wireless and wireline infrastructure.  The FCC tentatively concludes that reclassification will strengthen its ability to support availably and affordability of BIAS through USF programs.  With respect to Multiple-Tenant Environments, the FCC seeks comment on how reclassification might impact the FCC’s authority to promote tenant choice and competition in the provision of broadband services for those who live and work in MTEs.  The FCC also seeks comment on how the reclassification may impact the FCC’s authority to ensure individuals with disabilities can communicate using BIAS.
    • Will not harm investment:  The FCC tentatively concludes that the Commission’s primary policy justifications to reclassify BIAS as a Title I service, which were based on ISP investment, were unsubstantiated.
    • Scope:  The FCC proposes to continue to define “broadband Internet access service” as a “mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up internet access service,” as well as “any service that the Commission finds to be providing a functional equivalent of the service described [in the definition] or that is used to evade the protections set forth” in part 8 of the Commission’s rules.  Internet access offered to patrons of coffee shops, bookstores, airlines, etc., and specialized, non-BIAS data services would not be included in the definition.  It would include, however, exchange arrangements, including Internet peering, traffic exchange, or interconnection, to the extent they provide the “capability to transmit data to and receive data from all or substantially all internet endpoints . . . [and] enable the operation of the communications service.”
    • The FCC seeks comment on its proposed reclassification and its tentative conclusions, including the need for and importance of BIAS in consumer’s lives, whether reclassification is necessary to ensure the Internet is open, safe, secure, and serves the public interest, the scope of the reclassification, whether reclassification is consistent with the Telecommunications Act, and how to exercise its preemption authority to ensure BIAS is governed by a national, uniform framework, among other things.
  • Proposes to Forebear Application of Certain Title II Provisions to BIAS:  The FCC proposes to forebear from applying some Title II provisions to BIAS in the event that it is reclassified and seeks comment on the parameters of that forbearance.  Specifically, the FCC proposes to adopt the same forbearance as the 2015 Open Internet Order, which declined to grant forbearance from: (1) the open internet rules; (2) sections of the Communications Act related to service changes, discrimination, consumer complaints, and the associated enforcement authority; (3) consumer privacy provisions of the Act; (4) the network deployment provisions of the Act; (5) the disability access provisions of the Act; (6) the provisions of the Act governing the FCC’s ability to support broadband deployment and adopting; and (6) the requirements governing wireless licensing.  The FCC seeks comment on this proposal, the impact it would have on providers, particularly small providers, and if there are any new rules or regulations to include in its forbearance consideration, among other things.
  • Proposes to Reinstate the 2015 Open Internet Rules:  The FCC proposes to reinstate the rules adopted in the 2015 Open Internet Order that prohibited ISPs from blocking, throttling, or engaging in paid or affiliated prioritization arrangements.  The FCC also proposes to readopt a general conduct standard, which would prohibit practices that cause unreasonable interference or unreasonable disadvantage to consumers or edge providers.  Finally, with regard to transparency, the FCC would retain the current disclosures required by the current transparency rule and broadband label requirements.  The FCC tentatively concludes that the rules are necessary to: (1) promote innovation, investment, and free expression on the Internet; (2) protect public safety; (3) prevent ISPs from engaging in practices that threaten Internet openness, particularly in regions where there is limited to no competition; (4) increase innovation at the network edge, which will in turn enhance consumer demand and expand broadband infrastructure investments; and (5) protect transparency, consumers, anti-trust law, and edge providers.  The FCC seeks comment on its proposed rules and tentative conclusions, including the need for the rules, the effect of the rules on investment and business practices, whether the practices targeted by the rules are still key threats to Internet openness, the content of the required disclosures, the scope of the rules, how to enforce the rules, whether to re-establish a formal complaint process, and the FCC’s legal authority to adopt the rules, among other things.
  • Seeks Comment on Constitutional Considerations:  the FCC seeks comment on any implications the proposals in the Draft NPRM may raise with regard to First Amendment speech issues and Fifth Amendment takings issues.

Comments are due on or before December 14, 2023.

Reply Comments are due on or before January 17, 2024.

Please Contact Us if you have any questions.

The post FCC Releases Adopted Net Neutrality NPRM first appeared on Telecommunications Law Professionals, PLLC.

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