CRS – Net Neutrality: Selected Legal Issues Raised by the FCC’s 2015 Open Internet Order, Kathleen Ann Ruane, Legislative Attorney. April 6, 2015.
“In February 2015, the Federal Communications Commission (FCC) adopted an order that will impose rules governing the management of Internet traffic as it passes over broadband Internet access services (BIAS), whether those services are fixed or wireless. The rules are commonly known as “net neutrality” rules. The order was released in March 2015. According to the order, the rules ban the blocking of legal content, forbid paid prioritization of affiliated or proprietary content, and prohibit the throttling of legal content by broadband Internet access service providers (BIAS providers). The rules are subject to reasonable network management, as that term is defined by the FCC. This is not the first time the FCC has attempted to impose some version of net neutrality rules. Most recently, the FCC issued the Open Internet Order in 2010, which would have created similar rules for the provision of broadband Internet access services. However, the bulk of those rules, with the sole exception of a disclosure rule, were struck down by the D.C. Circuit Court of Appeals. Interestingly, the court found that the FCC did have broad enough authority under Section 706 of the Telecommunications Act of 1996 to impose the rules. However, the
Communications Act of 1934, as amended by the Telecommunications Act of 1996, permits only “telecommunications services” to be regulated as common carriers. Broadband Internet access services were classified as “information services” under the act by the FCC. Because the court found some of the rules imposed by the Open Internet Order to be common carrier regulation per se , the court found that the rules could not be applied to broadband Internet access services. Following this decision, the FCC essentially had three options. The Commission could have enforced the remaining disclosure rules as they were. The Commission could have returned to the drawing board to create more flexible rules that would not be found to be per se common carrier rules. The D.C. Circuit had suggested in its opinion striking down the rules that such a path was possible. The third option was the option to reclassify broadband Internet access services as telecommunications services, and to impose the strong rules the FCC had sought to impose initially, but on a firmer statutory footing. After issuing a Notice of Proposed Rulemaking (NPRM) seeking comment on all three of these options, the FCC has chosen the third option. The agency voted to reclassify broadband Internet access services as telecommunications services under the Communications Act. If upheld in court, this decision could represent a significant shift in the FCC’s ability to regulate these services. Reclassification arguably will provide the FCC with clear authority to impose network neutrality rules. Notably, reclassification may also give the FCC direct authority, under Title II of the Communications Act, to regulate other aspects of the provision of broadband Internet access services. This report will analyze the primary legal issues raised by the FCC’s order reclassifying broadband Internet access services.”
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