FCC Releases Draft of ​“Internet Freedom” Item in Advance of May Open Meeting

On April 27, 2017, the Federal Communications Commission (FCC or Commission) released the draft text of a notice of proposed rulemaking (NPRM) that would launch a new FCC proceeding (WC Docket No. 17-108) to roll back the Commission’s 2015 Open Internet Order and take steps to “restore Internet freedom” by deregulating broadband Internet access service (BIAS). As discussed in more detail below, in the NPRM, the Commission proposes to restore the regulatory framework in place before the 2015 Open Internet Order (which the NPRM calls the “Title II Order”), and seeks comment on how best to achieve that outcome.

First, the Commission proposes to reclassify BIAS as an information service and reinstate the determination that mobile BIAS is not a commercial mobile service. On both accounts, the NPRM essentially reverts to the policy determinations and justifications that underlay the Commission’s earlier classifications of fixed and mobile BIAS as information services, and seeks comments on those views. In support of its position, the NRPM looks to the statutory text of the 1996 Telecommunications Act, Commission precedent, and public policy considerations.

Second, the Commission seeks comment on the effect of the regulatory frameworks that the Commission adopted in its Title II Order. Specifically, it seeks comment on the FCC’s earlier decision to forbear from applying certain provisions of Title II to ISPs while imposing others, including section 222, which pertains to customer proprietary network information (CPNI). The NPRM also discusses the fate of the FCC’s Lifeline program, proposing to maintain Lifeline support for broadband, but apparently limiting such support to ”‘the provision, maintenance, and upgrading’ of broadband facilities capable of providing supported services.” Finally, the NPRM asks how reclassification of BIAS as an information service would impact other issues, such as pole attachments and infrastructure investment, and seeks proposals on how to further encourage broadband deployment.

Third, the NPRM seeks comment on the existing open Internet rules and whether to “keep, modify, or eliminate them.” Specifically, the NPRM:

• proposes to eliminate the Title II Order’s “general conduct” standard and the list of factors underlying it;
• asks whether the FCC’s ex ante bright line rules (i.e., no blocking, no throttling, no paid prioritization, and transparency) are necessary at all;
• proposes to retain the reasonable network management exception for any rules it does not eliminate;
• asks whether to apply any rules it retains to mobile BIAS; and
• asks whether it should retain the enforcement procedures established in the Title II Order, including its informal and formal complaint procedures, advisory opinions, the role of the open Internet “ombudsperson” charged with representing consumer interests, and delegated authority to FCC bureaus for further rulemaking.

The NPRM also asks whether the FCC has legal authority to retain these rules under section 706 (which it views as “hortatory”), section 230 (which the Commission previously deemed a mere “statement . . . of policy”), or some other source of legal authority, and whether such rules are barred for constitutional reasons.

Finally, the NPRM proposes to conduct a cost-benefit analysis as a part of its new proceeding. Specifically, the NPRM seeks comment on how to conduct such an analysis and the importance of such an analysis, and proposes to rely on the Office of Management and Budget’s Circular A-4, Section E, which compares a baseline scenario to the proposed framework.

So what can we glean from the draft NPRM? Like Congress’s joint resolution rescinding the FCC’s 2016 Privacy Order, the Restoring Internet Freedom NPRM seeks to turn back the clock to immediately before the Title II Order was introduced. Despite occasional acknowledgement of existing rules and consumer protection objectives, the overall thrust of the NPRM is deregulatory. The key question for the Commission, then, is what, if anything, will remain from the existing open Internet framework, and how, if at all, the FTC will take up the mantle of broadband cop on the beat if the Commission reclassifies BIAS as an information service. At this stage, it’s still too early to tell. Stay tuned for more as we approach the Commission’s May 18^th vote and gain greater clarity on comment filing deadlines.