On Wednesday, February 4, 2015, the Federal Communications Commission (FCC) released a fact sheet on Chairman Wheeler’s imminent Open Internet proposal.

The draft rules would reclassify “broadband Internet access service” as a telecommunications service under Title II of the Communications Act of 1934, and would rely on Title II and Section 706 of the Telecommunications Act of 1996 to implement a series of new rules equally on wireline and wireless broadband providers.

The proposed regulations would explicitly prohibit broadband providers from:

  • blocking access to legal content, applications, or services;
  • throttling (i.e., impairing or degrading) lawful Internet traffic; and
  • paid prioritization (i.e., no “fast lanes”).

Importantly, the rules would leave room for providers to engage in reasonable network management, so long as such management is primarily used for and tailored to achieving a legitimate (i.e., not commercial) purpose. The rules also would enhance the Commission’s existing Open Internet transparency rule, and would give the Commission authority to hear complaints and take enforcement action against broadband providers over interconnection activities that are not “just and reasonable.”

The proposal would only selectively apply provisions of Title II to broadband providers, including:

  • prohibiting “unjust and unreasonable” practices (Sections 201-202);
  • investigation of consumer complaints (Sections 206-209, 216-217);
  • consumer privacy protections (Section 222);
  • fair access to poles and conduits (Section 224);
  • protections for people with disabilities (Sections 225 and 255); and
  • universal service fund support for broadband (Section 254).

However,  the proposal would forbear from applying many of the more onerous Title II provisions to broadband providers, such as:

  • rate regulation, tariffs, or other forms of unbundling or rate approval;
  • obligation to contribute to the Universal Service Fund; and
  • the imposition of new fees or taxes.

Note that this proposal, like the Chairman’s earlier “hybrid” proposal, is not final, and may change as the draft order circulates between the five FCC Commissioners over the next few weeks.  The FCC is scheduled to vote on a final Open Internet Order on February 26, 2015, and much could change in the interim.

Stay tuned for more information and analysis from the Kelley Drye Communications team about this important change in U.S. telecommunications regulation.