A sharply divided FCC voted 3-2 along partisan lines yesterday to repeal the FCC’s classification of broadband Internet access service (BIAS) as a Title II telecommunications service and thus restore the agency’s pre-2015 regulatory approach to BIAS as a non-common carrier Title I information service.
Describing Title II classification and other rules adopted through the 2015 Open Internet Order as “heavy-handed utility-style regulation” which “imposed substantial costs on the entire Internet ecosystem,” the FCC explained in a press release that its intention is “to restore the longstanding, bipartisan light touch regulatory framework that has fostered rapid Internet growth, openness and freedom for nearly 20 years.” In addition to treating BIAS as a Title I service that is exempt from common carrier and other regulations that apply to Title II telecommunications providers, the ruling (1) rolls back prohibitions against throttling and paid prioritization as well as other net neutrality rules promulgated by the FCC in 2015 and (2) eliminates the “Internet Conduct Standard” by which the FCC may review actions that are not barred by the Open Internet Order but could adversely affect open access to broadband networks and content. The order also reinstates the pre-2015 classification of mobile BIAS as a private mobile service and finds that “public policy, in additional to legal analysis, supports the [Title I] information service classification because it is more likely to encourage broadband investment and innovation.” Although BIAS providers will no longer be subject to rules that bar blocking throttling, and paid prioritization, the order includes a transparency mandate which requires BIAS providers to “disclose information about their practices to consumers, entrepreneurs and the Commission”
As such, the FCC predicted that the new framework “will protect consumers at far less cost to investment than the prior rigid and wide-ranging utility rules” enacted through the 2015 Open Internet Order, adding that restoration of “a favorable climate for network investment is key to closing the digital divide, spurring competition and innovation that benefits consumers.” In an attempt to allay fears over a repeal of Title II classification, FCC Chairman Ajit Pai dismissed what he called “the apocalyptic rhetoric that we’ve heard” from some Title II supporters as he emphasized that a return “to the legal framework that governed the Internet from . . . 1996 until 2015 is not going to destroy the Internet.” Voting alongside Pai in favor of the item, Commissioner Michael O’Rielly agreed that “heavy handed” rules were not needed to protect Internet consumers against potential harm, as Commissioner Brendan Carr applauded the vote as the end to “a two-year experiment in massive regulatory overreach.” In a dissenting statement, however, Commissioner Jessica Rosenworcel charged that the majority’s decision “to roll back net neutrality . . . puts the [FCC] on the wrong side of history, the wrong side of the law, and the wrong side of the American public.” As she assailed the majority for “handing the keys to the Internet . . . over to a handful of multi-billion dollar companies,” Commissioner Mignon Clyburn observed in her dissent: “I don’t know whether this plan will be vacated by a court, reversed by Congress, or overturned by a future Commission, but I do believe that its days are numbered.”
The new rules are expected to take effect early next year, after the Office of Management & Budget approves new information collection requirements associated with the transparency portion of the order. Several opponents of the FCC’s ruling, including the National Hispanic Media Coalition and the Writers Guild of America West, have already promised to appeal, and observers predict that legal challenges from additional groups will be will be forthcoming.