On April 4, 2024, the Federal Communications Commission (“FCC or Commission”) released a draft Declaratory Ruling, Order, Report and Order, and Order on Reconsideration (“the Order”) that, if adopted, would restore the Obama Administration FCC’s regulation of the Internet. The Order would specifically (1) reclassify fixed broadband from an unregulated information service under Title I of the Communications Act (the Act) to a regulated telecommunications service under Title II of the Act, and mobile broadband as a commercial mobile radio service (CMRS); (2) reinstate the Commission’s 2015 net neutrality rules; and (3) extend a number of Title II obligations, including disability access and data privacy, to BIAS providers.
Although the FCC will consider changes to the draft Order until April 18, we do not anticipate any major substantive changes. The Commission will then vote on the Order at its April 25 open meeting. We expect the Commission to adopt the Order along party lines, with the three Democratic commissioners voting in favor and the two Republican commissioners voting against. Based on these expectations, we refer to the obligations in the Order in the rest of this advisory assuming that they will be adopted. The key new requirements that will apply to BIAS providers are briefly summarized below.
Net Neutrality
The Order will restore straightforward, clear rules adopted under the Obama Administration and repealed under the Trump Administration that prohibit blocking, throttling, or engaging in paid or affiliated prioritization arrangements relating to the transmission of fixed and mobile Internet traffic, subject to a technical “reasonable network management exception,” as follows:
- No Blocking of Lawful Traffic: BIAS providers must not block lawful content, applications, services, or non-harmful devices. However, they will remain free to block unlawful Internet traffic, such as child pornography or copyright-infringing materials.
- No Throttling of Lawful Traffic: BIAS providers must not impair or degrade lawful Internet traffic based on content, application, service, or use of a non-harmful device. This prohibition may impact mobile broadband arrangements between each of the three major wireless carriers and the resellers of their wireless services most acutely, as the facilities-based mobile network operators may no longer be allowed to slow Internet speeds of the customers of the resellers of their wireless service during network congestion so that their own subscribers retain access to higher, off-peak speeds.
- No Paid or Affiliated Prioritization: Paid or affiliated prioritization of Internet traffic will be prohibited. “Paid prioritization” refers to a broadband provider’s management of network traffic to directly or indirectly favor the traffic of some providers over that of others. An example of paid prioritization would be giving Netflix access to a faster lane than an emerging competitor that is too small to afford the priority access fee. An example of affiliated prioritization would be Xfinity giving Peacock TV access to a “fast lane” because Comcast ultimately owns the service, in order to discourage Xfinity subscribers from watching competing video streaming services.
In addition to these specific non-discrimination requirements for carrying Internet traffic, BIAS providers must broadly avoid any practices that “unreasonably interfere with the ability of consumers or edge providers to select, access, and use broadband Internet Access Service to reach one another, thus causing harm to the open Internet.” This general conduct rule is, according to the Commission, a “necessary backstop to ensure that BIAS providers do not find a technical or economic means to evade the bright-line prohibitions on blocking, throttling, and paid prioritization.”
New Title II Obligations for Broadband Providers
In addition to net neutrality, the following common carrier obligations will be extended to BIAS providers as a result of the regulatory reclassification of broadband as a telecommunications service:
- Disability Access: BIAS providers will need to comply with Section 255 of the Act as “telecommunications service providers.” Section 255 requires telecommunications equipment, customer premises equipment, and telecommunications services to be accessible to and usable by people with disabilities, if readily achievable. It also requires covered entities to maintain accessibility records and to file annual recordkeeping compliance certifications with the FCC. The Order will specifically enhance the FCC’s authority to:
- Better safeguard access to Internet-based telecommunications relay services;
- Ensure that individuals with disabilities can communicate using these services; and
- Ensure that emergency communications by people with disabilities are not interrupted or degraded.
- Customer Privacy: BIAS providers will not be subject to the Commission’s customer proprietary network information rules, but they will have to comply with other data privacy obligations in Section 222 of the Act.
- Information Collection and Reporting to Promote National Security, Public Safety, and Improve Network Resiliency: BIAS providers will need to comply with Sections 218, 219, and 220(a)(1) and (c)-(e) of the Act.
Forbearance from Other Title II Obligations
For now, BIAS providers will be broadly exempt from rate regulation, filing tariffs with the FCC, unbundling of last-mile facilities, and the Commission’s cost accounting rules. However, they will not be exempt from the general prohibition against unjust or unreasonable charges, practices, classifications, and regulations in connection with BIAS, or the prohibition against discrimination in the provision of telecommunications services.
BIAS providers will also be exempt from immediate contributions to the federal Universal Service Fund and the Interstate Telecommunications Relay Services Fund. However, the FCC reserved the right to extend these contributions to BIAS providers at a later time.
Finally, BIAS providers will be exempt from various additional requirements specifically designed for voice services, including the Commission’s interconnection, slamming, and automatic roaming rules, as well as its truth-in-billing rules.
The CommLaw Group can Help!
Although the FCC is reclassifying broadband as a telecommunications service, only some regulatory compliance obligations of telecommunications service providers are being extended to broadband providers. Our experienced telecom attorneys stand by ready to help answer any questions and ensure that your company does not inadvertently undercomply or overcomply. For questions about the new disability access obligations of broadband providers, please contact Michal Nowicki at (703) 714-1311 or mjn@commlawgroup.com. For net neutrality and all other broadband regulation questions, please contact Jonathan Marashlian at (703) 714-1313 or jsm@commlawgroup.com, or the attorney assigned to your account.
