FCC adopts Open Internet rules, reclassifies broadband Internet access as Title II

After many months of heated, contentious debate, the FCC adopted new Open Internet rules on a 3-2 vote.

The FCC rules make clear that wired and wireless broadband providers may not:

•    Block access to legal content, applications, services, or non-harmful devices.
•    Impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.
•    Favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind – in other words, no “fast lanes.”

Most significant, the Order reclassifies retail broadband service – whether from cable, phone or wireless – to be a telecommunications service under Title II. According to the FCC, this “... recognizes that today broadband Internet access service is understood by the public as a transmission platform through which consumers can access third-party content, applications, and services of their choosing.”

At the same time, the FCC Order applies some provisions of Title II to broadband providers, and forbears from enforcing others. Title II provisions that will apply to broadband providers include:

•    Requirements for just and reasonable rates
•    Consumer protections and complaint procedures
•    Consumer privacy provisions
•    Fair access to poles and conduits
•    Protections for people with disabilities
•    Universal service provisions

The FCC Order provides the agency with authority to address questionable practices on a case-by-case basis, and provides guidance in the form of factors on how the Commission will apply the standard in practice.

The FCC also strengthens its transparency rules and further insists that broadband providers reveal in a consistent format, promotional rates, fees and surcharges and data caps.

The rules also allow ISPs freedom to manage the workings of their own networks – provided that management is for technical, and not business, reasons. A provider, said the Commission, “can’t cite reasonable network management to justify reneging on its promise to supply a customer with ‘unlimited’ data.”

The FCC decision gives the Commission authority to police traffic between mass-market broadband providers and other networks and services. ISP interconnection activities must be “just and reasonable.”

The previous 2010 Open Internet rules were overturned by the D.C. Circuit Court of Appeals in Verizon v. FCC ruling that the FCC had not adequately grounded its legal authority to protect an open Internet. To avoid further challenges, the FCC made one drastic change.

In addition, the Commission relies on Section 706 of the Telecommunications Act of 1996. In this case, the FCC cites a ruling in the Verizon case which held that “Section 706 is an independent grant of authority to the Commission that supports adoption of Open Internet rules.” And, “the Order’s provisions on mobile broadband also are based on Title III of the Communications Act.”

The FCC did not release the text of the final Order. While many applauded the FCC's decision, it is clear that others will challenge the decision in Court. So the debate over net neutrality is not over.

FCC Adopts Strong, Sustainable Rules to Protect the Open Internet (FCC news release, Feb. 26, 2015)