After nearly 4 million public comments, and months of vigorous public, industry, and Congressional debate, the FCC, by a 3-2 vote, approved revised net neutrality rules to “protect the Open Internet.” As expected by the Chairman’s statements in the lead-up to the vote, the FCC’s Open Internet Order reclassifies broadband internet access as a “telecommunications service” (or common carrier service) under Title II of the Communications Act. The new rules cover both wired and wireless broadband.
The principal aspects of the Open Internet Order are:
- No blocking lawful content.
- No throttling lawful content.
- No discrimination against lawful content.
- No paid prioritization.
- New FCC authority to examine interconnection agreements.
- Transparency requirements regarding rates, data caps, network management practices.
- Reasonable network management permitted to manage the technical and engineering aspects of a provider’s broadband networks.
- The Order cites the legal foundation for the rules as both Title II of the Communications Act and Section 706 of the Telecommunications Act of 1996.
- Forbearance from many Title II regulations, including rate regulation, tariffs, or network unbundling.
A clearer picture of the net neutrality rules will emerge in the next few weeks when they are officially published in the Federal Register, and presumably take effect 60 days later. However, based upon multiple reports, broadband providers are expected to challenge the Order in a federal appeals court (the prior 2010 Open Internet Order was challenged and largely overturned in the U.S. Court of Appeals for the D.C. Circuit). Only time will tell whether broadband providers will win a stay of the regulations or successfully challenge part or all of the Order and the Title II classification, or whether the court will find that the FCC had adequate statutory authority to enact the rules. Moreover, Congress has also expressed interest in preempting the FCC and passing its own net neutrality legislation. Stay tuned. In the meantime, with the growth of over-the-top streaming video programming and other changes in the video and broadband marketplace, it remains to be seen how the new net neutrality will affect emerging business models, relationships with content providers, and future investments in technology.