On March 23, 2015, US Telecom (a trade association with Verizon and AT&T as members, among others) and Alamo Broadband, Inc. (“Alamo”) each filed petitions for review of the FCC’s Open Internet Order, released earlier in March. Alamo filed its petition in the U.S. Court of Appeals for the Fifth Circuit, and US Telecom filedin the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”).
On March 30, 2015, the U.S. Judicial Panel on Multidistrict Litigation consolidated the petitions in the D.C. Circuit. Alamo and US Telecom’s petitions were filed before the Order was published in the Federal Register and, therefore, may ultimately be dismissed as premature, since an FCC order must “final” to be subject to appeal. More appeals are likely to follow and are expected to be consolidated in the D.C. Circuit with the US Telecom and Alamo petitions.
Appeals of the FCC’s Order are likely to take several years to resolve. However, most of the provisions in the Order (with the exception of recordkeeping obligations that require the approval of the Office of Management and Budget) will become effective 60 days after the publication in the Federal Register unless the D.C. Circuit stays the rules during the pendency of the appeals, which is unlikely. Therefore, broadband Internet access service (“BIAS”) providers must make sure their practices conform to the rules when they take effect. Edge providers should ensure that they understand the rules as well, so they can plan for any potential impacts on their service offerings.
Unfortunately, while the Commission did craft three bright-line Open Internet rules (no blocking, no throttling, and no paid prioritization), the Commission left itself significant flexibility to pursue practices that aren’t covered by its bright-line rules by also adopting a rule prohibiting unreasonable interference or disadvantage to consumers or edge providers. Moreover, the Commission pledged to enforce the rules adopted in its Order, and the Title II provisions extended to BIAS offerings by virtue of reclassification of BIAS as a “telecommunications service,” on a case-by-case basis, leaving the Commission with options to address unforeseen practices by BIAS providers through the adjudicatory process.
This uncertainty underscores the importance for any business involved in the Internet ecosystem to examine the impact of the Order on its service offerings. Our firm has prepared a comprehensive summary and analysis of the key aspects of the Order, including the scope of the Order; the Open Internet rules adopted; and the impact of the reclassification of BIAS as a “telecommunications service” on numerous areas, such as universal service, privacy, and licensing, among other topics. Because the rules are nuanced and slated to be applied on a case-by-case basis, the application of the Order to any offering will be fact driven. Therefore, we strongly recommend that BIAS and edge providers consult with counsel to determine the Order’s implications for their services and practices.
If you would like more information regarding the FCC’s Open Internet Order, please contact the attorney responsible for your account, or contact Jonathan Marashlian: jsm@commlawgroup.com – 703-714-1313 – or Jackie Hankins: jrh@commlawgroup.com – 703-714-1314.
