FCC Reverses Title II for ISPs in the Latest Net Neutrality Order

FCC voted along party lines, 3-2

Today, December 14, 2017, FCC Chairman Ajit Pai joined with the two Republican FCC commissioners voting in favor of unwinding the FCC’s Title II classification of Broadband Internet Access Service (BIAS) established in the 2015 Open Internet Order (also known as the Title II Order) and vacating the Commission’s corresponding Internet conduct rules. While the final 2017 Restoring Internet Freedom Order is not yet available, JSI expects the final order to be very similar to the draft order circulated last month that garnered extensive media attention.

The FCC will once again classify BIAS as an information service. The Order also reclassifies mobile BIAS as private mobile service instead of commercial mobile radio service. Rural carriers will still be able to offer their broadband transport service as a regulated Title II service, subject to all regulations that apply to this service.

Importantly, while the FCC eliminates its conduct rules, it retains and expands its ISP transparency requirement that applied to rural providers operating under the Small ISP Waiver Order. Rural carriers will be required to provide information to the public regarding network management practices, performance characteristics, and commercial terms on an easily accessible web page or through a filing at the Commission.

The 2017 Restoring Internet Freedom Order was supported publicly by a number of small rural broadband providers, including some rate-of-return carriers who recently submitted a letter to Congress and met with Chairman Pai, arguing that the Order will help advance the goal of expanding broadband to every American. The Order also claims that removing the “general conduct standard” will stimulate investment in higher-risk rural and high-cost networks.

The Order also returns full jurisdiction for Internet privacy and security issues to the Federal Trade Commission (FTC). The Order restores the FTC as the “cop on the beat,” and unifies regulations for ISPs and edge-providers, as well as provides a clear path(s) for remedies for bad behavior in the marketplace. The FCC has committed to work jointly with the FTC to ensure that the Internet ecosystem will remain vibrant and healthy.

The 2017 Restoring Internet Freedom Order ushers in yet another uncertain era for ISPs. While this era will be fraught with further debate and likely court challenges, it appears that eventually Congress will need to address this issue and establish a solid foundation for Internet freedom.

JSI will continue to monitor this important issue. When the final Order is released, we will provide additional information on the new transparency requirement for rural ISPs.

For questions about the 2017 Restoring Internet Freedom Order, contact John Kuykendall or Cassandra Heyne in the Maryland office at 301-459-7590 or Douglas Meredith in the Utah office at 801-294-4576.