FCC to Reclassify Broadband as Title II Telecommunications Service, Opening Doors to More Stringent Regulation: Proposed Net Neutrality Rulemaking to be Considered by FCC on October 19
Federal Communications Commission (FCC) Chairwoman Jessica Rosenworcel on Tuesday proposed restoring consistent nationwide net neutrality rules which would reinstate the FCC’s jurisdiction over broadband (by reclassifying it as telecommunications service) and prohibit broadband Internet access service (BIAS) providers from blocking lawful content, degrading lawful internet traffic, or engaging in paid prioritization. The draft Notice of Proposed Rulemaking (NPRM) will be considered at FCC’s Open Meeting on October 19, 2023 and will likely be adopted virtually unchanged. Stakeholders will have the opportunity to influence the rulemaking by filing comments by December 14, 2023 and reply comments by January 17, 2024.
- Reclassification of Broadband Internet Access Service as Telecommunications Service
The proposed rules aim to restore FCC’s Title II authority over BIAS by reclassifying it as a telecommunications service ( it is currently only lightly regulated as an information service) and reclassify mobile broadband as a commercial mobile service to “avoid the inconsistency that would result if the service were both a telecommunications service and a private service.”
Addressing the industry concerns, the draft NPRM specifically proposes to forbear from 26 Title II provisions and more than 700 Commission rules that might “pose a threat to network investment or are unnecessarily burdensome,” including the forbearances enumerated in the 2015 Open Internet Order, unbundling, and tariffs.
- Open Internet Rules
The FCC seeks to promote a free and open Internet by prohibiting the following BIAS practices “harmful to consumers, competition, national security, and public safety” (subject to reasonable network management):
- Blocking or throttling of (degrading the access to) lawful content, applications, services, and non-harmful devices; and
- Paid or affiliated network access prioritization.
The FCC also seeks to impose certain transparency rules, including the disclosure of important broadband offering information to consumers, facilitating their informed choice of a broadband provider.
Regulation Potentially Triggered by Broadband’s Reclassification as Telecommunications Service and Request for Comments
- National Security
The FCC will seek comment on how BIAS’s reclassification as telecommunications services might benefit the national security and law enforcement. As outlined in the draft NPRM, the FCC potentially considers:
- imposing on BIAS providers the obligation to obtain FCC’s Section 214 authorization to provide international service like common carriers;
- restricting the use by BIAS in certain equipment and services that pose a security threat;
- imposing additional cybersecurity standards and reporting obligations, including with regard to Border Gateway Protocol; and
- requiring BIAS providers to block IP addresses that originate malicious software and ransomware.
- Public Safety
The FCC will seek comment on how BIAS’s reclassification as a telecommunications service might promote public safety. Among other things, the FCC is considering requiring BIAS providers to:
- transmit emergency alerts to their subscribers;
- offer prioritized routing for all IP-based services and prioritized restoration for all network infrastructure;
- participate in Telecommunications Service Priority (TSP), Government Emergency Telecommunications Service (GETS), and Wireless Priority Service (WPS);
- provide IP-based forms of telecommunications relay services (TRS);
- ensure public access to life-saving public safety resources, like alternatives to 911 services; and
- submit outage reports in response to service incidents that cause outages or the degradation of communications services, such as cybersecurity breaches, wire cuts, infrastructure damages from natural disaster, and operator errors or misconfigurations under the FCC’s Network Outage Reporting System (NORS).
- Consumers’ Privacy and Data Security
The FCC will seek comment on how reclassification of BIAS as a telecommunications service might support the FCC’s efforts to safeguard consumers’ privacy and data security. The FCC is considering requiring BIAS to:
- contribute to the FCC’s efforts to combat illegal robocalls and robotexts, including blocking traffic to IP addresses associated with spoofed websites;
- protect the confidentiality of its customers’ proprietary information, according the category of customer proprietary network information (CPNI) the greatest level of protection; and
- adopt adequate administrative, technical, physical, and procedural safeguards to protect their customers’ data under Section 222 privacy and data security framework.
- Access for Persons with Disabilities
The FCC seeks comment on how reclassification may impact the FCC’s authority to ensure that individuals with disabilities can communicate using BIAS, including with regard to:
- Section 716 accessible interoperable video conferencing services; and
- Section 718 mobile phone Internet browsers’ accessibility to blind and visually impaired people.
- Improved Access to Broadband Services
Guided by the goal to enhance public access to broadband Internet, the FCC is considering and seeks comment on:
- facilitating broadband deployment and improving access to pole attachments by restoring Section 224 protections for BIAS; and
- restoring BIAS’s access to USF-funded federal programs, such as the Lifeline program; and
- introducing measures to increase BIAS competition in multi-tenant environments.
Why is It Important?
Telecommunications services are subject to much more stringent requirements and regulation by the FCC than information services. Even with the currently proposed forbearances, the reclassification of broadband internet access service as telecommunications service opens doors to increasingly onerous regulation, potentially leading to various fund contribution and licensing obligations. Smaller internet service providers might face a more severe impact, which would further exacerbate the competition challenges. While the goal of a free and open internet is laudable, the consequences for all players in the industry should be considered. Any increased strain on the broadband internet providers will be felt across the board, likely affecting the whole chain of service providers and the customers. Once the NPRM is adopted, broadband providers will be encouraged to share their substantiated arguments with the FCC.
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