On March 12, 2015, the Federal Communications Commission (“FCC”) released its so-called “Net Neutrality Order,” re-classifying broadband Internet access service under Title II of the Communications Act. Today’s Order comes on the heels of a 2014 decision by the D.C. Circuit Court of Appeals striking down some of the FCC’s Open Internet rules adopted in 2010.
The Order prohibits providers of broadband Internet access (including both mobile and fixed service providers) from “blocking lawful content, applications, services, or non-harmful devices” and throttling (specifically, “impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device”), subject to “reasonable network management.” The Order further bans paid prioritization, defined as “the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic […] either (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entity.”
In addition, the Order prohibits broadband Internet access service providers from unreasonably interfering with or disadvantaging an end user or edge provider’s ability to make or select lawful content, applications, services, or devices.
The FCC does forbear from applying 30 statutory provisions of Title II (rendering over 700 rules inapplicable) to broadband Internet access services. However, it does not forbear from imposing several important provisions, including consumer privacy protections, ensuring access to broadband Internet access services by individuals with disabilities, infrastructure access requirements, and promotion of universal broadband. While the Commission did not extend Universal Service Fund (“USF”) contribution obligations to broadband Internet access service providers, the FCC noted that its “action today is not intended to prejudge or limit how the Commission may proceed in the future.” There is on ongoing proceeding to consider whether, among other things, broadband Internet access service should be subject to USF fees going forward. The requirement to promote universal broadband, in particular, could lead to USF contribution obligations for broadband Internet access service providers in the future.
If you have any questions regarding the Net Neutrality Order and its impact on your business, please contact Jackie Hankins: jrh@commlawgroup.com – 703-714-1314 or Seth Williams: slw@commlawgroup.com – 703-714-1326.
