One of the most significant issues facing the new Administration is the long-running battle over how to regulate broadband Internet access service (BIAS) offerings. Early signs indicate that the FCC again will become the focal point of efforts to reclassify broadband as a Title II telecommunications service under the Communications Act of 1934. Reclassification would reverse the Pai FCC's 2018 Restoring Internet Freedom Order and reinstate the FCC's 2015 Open Internet Order. The 2018 order effectively gave primary jurisdiction over ISP network management practices to the Federal Trade Commission and preempted states from enacting similar ISP network restrictions.
Both the 2015 and 2018 orders were largely upheld by the Court of Appeals for the D.C. Circuit as within the agency's authority, although the Court remanded certain aspects of the 2018 order, which the FCC addressed last year in a Remand Order.
Reclassification of broadband offerings as a Title II “telecommunications service” under the FCC's 2015 rules would prohibit ISPs from unjustly or unreasonably discriminating in their charges or practices, and re-impose consumer protection requirements, including prohibiting blocking, throttling, and traffic prioritization by ISPs. The FCC likely also will consider regulation of other ISP practices such as data caps, zero-rating, and interconnection fees.
The Remand Order provides a vehicle for the FCC to revisit many of these issues. Last week, INCOMPAS, representing competitive broadband providers, filed a Petition for Reconsideration of the Remand Order, arguing that the FCC did not properly address the D.C. Circuit's concerns about how the reclassification of BIAS impacts public safety and the rights of BIAS-only providers to access poles, ducts, and conduit under Section 224 of the Communications Act. INCOMPAS asked the FCC to reverse its decision to uphold the reclassification of BIAS as a Title I information service and to reinstate BIAS as a Title II telecommunications service and reissue its open Internet rules. Public Knowledge also filed a Petition for Reconsideration raising procedural issues with the Remand Order.
While Democrats in Congress may pursue legislation that would statutorily classify broadband as a telecommunications service, or even a bipartisan effort to update the Communications Act more broadly, a legislative solution appears unlikely given other Congressional priorities. No net neutrality bill has yet been introduced in the 117th Congress. Sen. Ed Markey (D-Mass.), a member of the Senate Committee on Commerce, Science and Transportation, may reintroduce his Save the Internet Act, which would restore the FCC's 2015 order.
With the classification battle moving back to the FCC, state net neutrality efforts may diminish. On February 8, 2021, the U.S. Department of Justice voluntarily dismissed its suit in the Eastern District of California challenging California's net neutrality law, enacted in the wake of the 2018 order. Large ISP trade associations continue to seek to invalidate that law.
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