At its next monthly meeting, scheduled for October 19, 2023, the FCC will consider a Notice of Proposed Rulemaking (WC Docket No. 23-320) to reestablish its authority over broadband Internet access service (BIAS) by classifying it as a telecommunications service subject to regulation under Title II of the Communications Act of 1934. The announcement that the agency plans to reinstitute net neutrality rules came the day after Anna Gomez was sworn in as the fifth Commissioner, giving the Democrats a 3-2 majority of Commission votes for the first time in the Biden Administration. The NPRM kicks off the next chapter in the long-running battle, involving the FCC, state legislators and regulators, federal courts, consumers, service providers – and occasionally Congress, which could definitively resolve the issue – over whether BIAS should be considered an essential utility, akin to voice telephone service, electricity, and water.
The draft proposed rules are similar but not identical to rules adopted in 2015 (and repealed under the subsequent administration in 2018). Those rules' prohibitions on BIAS providers, subject to reasonable network management practices, from blocking or throttling Internet traffic and from engaging in paid prioritization, would be restored in the new proposed rules, as would a general conduct standard that protects, subject to reasonable network management, end users' access to BIAS and to lawful Internet content and devices of their choice, as well as edge providers' ability to make lawful content, applications, services, and devices available to end users. Key terms – BIAS, edge provider, end user, and paid prioritization – also are identical to the 2015 rules, although the proposed definition of “reasonable network management” no longer requires a “primarily technical network management justification.” As with the former rules, a mobile BIAS is deemed a commercial mobile radio service; however, the draft rules lack a definition of mobile BIAS, nor do they distinguish fixed BIAS from other technologies.
The draft NPRM states that restoring Title II authority will allow the agency “to safeguard and secure the open Internet in three significant ways”: (1) by protecting consumers, including by issuing straightforward, clear rules to prevent Internet service providers from engaging in practices harmful to consumers, competition, and public safety, and by establishing a uniform, national regulatory approach rather than disparate requirements that vary state-by-state, (2) by strengthening the FCC's ability to secure communications networks and critical infrastructure against national security threats , and (3) by enabling the FCC to protect public safety during natural disasters and other emergencies.
Deadlines for public comments on the proposed rules will be announced after the FCC adopts the NPRM.