The wheel that is U.S. policy on “net neutrality” has taken another turn. On November 22, 2017, the FCC released a draft of the Internet Freedom Order,1 which, when effective, will reverse the Commission’s 2015 Open Internet Order (now referred to as the “Title II Order”).
As recounted in previous DWT Alerts,2 the Title II Order’s finding that broadband Internet access service (BIAS) is a “telecommunications service” and, therefore, subject to “common carrier” regulation under Title II of the Communications Act, reversed almost 15 years of FCC precedent which held exactly the opposite – i.e., that BIAS is an “information service” and specifically exempt from Title II regulation. Included with the Title II Order’s reclassification of BIAS were a number of regulatory obligations, including prohibitions on blocking, throttling, and paid prioritization, as well as affirmative disclosure requirements (known as the “Transparency Rule”) and a multi-factor “Conduct Standard” which the FCC planned to apply prospectively on a case-by-case basis.
With the Internet Freedom Order, the FCC has returned to its pre-2015 conclusions. It is reinstating the information service classification and, with it, jettisoning many of the regulatory obligations established by the Title II Order, including the explicit bans on blocking, throttling, and paid prioritization and the general conduct standard. What will remain is a modified “transparency rule” that will require that any blocking, throttling, and paid prioritization be clearly explained in a publicly available “terms of service” document that will be subject to enforcement by the FTC.
Read our latest advisory here, which summarizes the analysis in the Internet Freedom Order (which consists in large part of a repudiation of the Title II Order) and discusses some of the implications of the reclassification.