On May 23, 2017, the United States Federal Communications Commission (FCC) released the text of a Notice of Proposed Rule Making (NPRM) that solicits public comment on what FCC Chairman Ajit Pai calls a plan for “Restoring Internet Freedom.” The NPRM contemplates reversing the 2015 FCC Open Internet Order that classified both fixed and mobile broadband internet access services as telecommunications services and subjected them to some of the common carrier regulations found in Title II of the Communications Act. The 2015 Order also adopted no-blocking, no-throttling, and no-paid-prioritization rules, as well as a general internet conduct standard.
The NPRM proposes to reclassify broadband internet access service as an information service regulated under Title I of the Communications Act, just as it had been prior to 2015. Title I carries with it significantly lighter touch regulation than Title II. The NPRM also proposes to eliminate the general conduct standard in the 2015 Order and asks for comment on the necessity and source of authority for the no-blocking, no-throttling, and no-paid-prioritization rules. In 2014 the D.C. Circuit refused to uphold similar prior rules grounded in Title I.
One flashpoint in the NPRM is the proposed elimination of the general conduct standard. That provision allows the FCC to prohibit “current or future practices that . . . it determines unreasonably interfere with or unreasonably disadvantage the ability of consumers to reach the Internet content, services, and applications of their choosing or of online content, applications and service providers to access consumers.” The NPRM calls the standard “vague” and suggests that this “roving mandate” inhibits investment and innovation because “Internet service providers must guess at what they are permitted and not permitted to do.”
The three bright line rules prohibiting blocking, throttling, and paid prioritization found in the 2015 Order are also under review in the NPRM. While the NPRM does not push outright elimination of these rules, the NPRM does ask for comment on if they are necessary, how they could be modified, and under what authority new versions of the rules could be enforced. The NPRM specifically asks for comment on whether the rules were necessary in the first place, and for examples of conduct from ISPs that would have broken these rules before they went into effect.
Chairman Pai says that he is still committed to net neutrality, while critics point out the Commission’s ability to preserve net neutrality principles under Title I is uncertain given the D.C. Circuit’s ruling. Chairman Pai has said one possible solution could be for ISPs to voluntarily commit to adhering to net neutrality principles under the Federal Trade Commission (FTC); though many critics say such voluntary commitments would be too weak to truly preserve open Internet principles. Similarly, the NPRM suggests explicitly giving Internet privacy policing and enforcement back to the FTC.
Comments on the NPRM are due on July 17, 2017, with reply comments due on August 16, 2016. Almost 3 million public comments were already submitted before the release of the text of the NPRM.