On February 26, 2015, the Federal Communications Commission (FCC) approved, by an expected 3-to-2 vote, an order adopting, for the second time, rules to ensure an Open Internet. As we wrote last summer, the FCC recommenced its consideration of Open Internet rules after its previous order was vacated by the DC Circuit in January 2014 in Verizon v. FCC, No. 11-1355.
The FCC took comment last year as to whether Open Internet rules remain necessary and, if so, what should be their scope and language. More fundamentally, and due to the DC Circuit’s holding that the previous order failed to identify a sound basis of statutory authority, the FCC asked interested parties to identify and explain the provisions of the Communications Act that would permit the FCC to adopt Open Internet rules. The central question in the Open Internet debate is whether broadband Internet access should be classified as telecommunications that is subject to FCC oversight pursuant to Title II of the Act. This issue became known as “reclassification.”
Despite heavy and vocal opposition from members of both Congress and the FCC, Chairman Tom Wheeler pressed ahead with an order stating the broadband Internet access is indeed a Title II service. The FCC will refrain, however, from imposing several provisions of Title II that plainly regard traditional telephone service rather than Internet Protocol-based, broadband transmissions.
Republican Commissioners Ajit Pai and Michael O’Rielly each read lengthy dissents and stated their belief that this Order will be overturned on appeal.
We will provide a summary of the Open Internet Order once it is released. The FCC has released a summary of the Order here.