The Federal Communications Commission (“FCC” or “Commission”) recently released a Notice of Proposed Rulemaking (“NPRM”) soliciting comments regarding its proposal to reverse course on the Commission’s 2015 Open Internet Order.  Specifically, the FCC seeks comments regarding the following topics.

First, the NPRM proposes to revisit and reverse course on the FCC’s 2015 decision to reclassify Broadband Internet Access Service (“BIAS”) as a “telecommunications service” under Title II of the Communications Act.  According to the NPRM, the Commission’s proposal to again classify broadband Internet access service as an “information service” is in the Commission’s view based on a number of factors, including: 1) the text, structure, and history of both the Communications Act and the Telecommunications Act; 2) Commission precedent; and 3) public policy and the goal of benefiting consumers through greater innovation, investment, and competition.

Second, the NPRM also proposes a return to the Commission’s original classification of mobile broadband Internet access service as a private mobile service.   The NPRM proposes revisiting the elements of the 2015 Open Internet Order that modified or reinterpreted key terms in section 332 of the Communications Act, and the NPRM seeks comment on the aspects of the D.C. Circuit’s analysis of mobile broadband Internet access service in the appeal of the 2015 Open Internet Order.

Third, the NPRM proposes to eliminate the catch-all “Internet Conduct Standard” created by the 2015 Open Internet Order.  The Commission‘s Internet Conduct Standard was intended to prohibit “current or future practices that cause the type of harms [the Commission’s] rules are intended to address.”  The Commission asserts in the new NPRM that the Internet Conduct Standard is extremely vague and expansive, requiring ISPs to guess at what they are permitted to do.  The NPRM then argues that eliminating the Internet Conduct Standard will promote innovation and network investment by eliminating regulatory uncertainty.

Finally, the NPRM seeks comment on whether the Commission should keep, modify, or eliminate the bright-line rules established by the 2015 Open Internet Order, including those regarding forbearance and privacy.  Regarding forbearance, the Commission asserts in the NPRM that restoring the classification status of BIAS to an “information service” will render any additional forbearance moot in most cases. However, rather than exploring whether less Title II forbearance might not lead to the increased BIAS competition that many have observed is sorely lacking, the Commission seeks comment as to whether the Commission should extend forbearance to even more provisions of Title II with respect to BIAS.  Regarding privacy, the Commission seeks comment on shifting the responsibility for oversight of ISPs’ privacy practices back to the Federal Trade Commission.

Comments are due by July 17, 2017 and reply comments are due by August 16, 2017.  The full text of the NPRM can be found here. Carriers have a clear interest in this proceeding to ensure that they retain the ability to compete with BIAS providers in the most effective manner possible.

If you have any questions regarding the above, please contact Jim Falvey at 202.659.6655 (jfalvey@eckertseamans.com) or Rob Gastner at 202.659.6674 (rgastner@eckertseamans.com).  Jim and Rob both participated in the appeal of the 2015 Open Internet Order on behalf of Full Service Network and are intimately familiar with the issues raised by the NPRM.

This Utilities and Telecommunications Alert is intended to keep readers current on matters affecting businesses and is not intended to be legal advice.

© Eckert Seamans Cherin & Mellott, LLC, 2017, all rights reserved.