The FCC Is Tackling Net Neutrality Again

On Thursday, April 27, the FCC took their first official steps towards making significant changes to the rules passed in their 2015 Open Internet Order (aka “Net Neutrality Order”). The Notice of Proposed Rulemaking (NPRM) released on Thursday does not, as some have reported, propose eliminating the net neutrality rules per se, but it does propose sweeping changes to how the FCC regulates broadband ISPs.

The primary focus of the NPRM is undoing the FCC’s 2015 reclassification of broadband internet access service (BIAS). Prior to 2015’s Open Internet Order, BIAS was considered an “information service” and was subjected to a “light touch regulatory approach.” But in 2015, the FCC reclassified BIAS as a “telecommunications service,” a legal classification that brings with it a much more stringent set of regulations. Thursday’s NPRM proposes reinstating broadband’s classification as an information service, claiming that its classification as a telecommunications service has hindered innovation and investment in broadband infrastructure.

The NPRM does ask for comment on the need for the bright line net neutrality rules requiring transparency from ISPs and banning blocking, throttling and paid prioritization, but doesn’t propose eliminating them at this point in the process. It does, however, propose eliminating the “Internet Conduct Standard,” which prohibits “current or future practices that cause the type of harms the [net neutrality] rules are intended to address,” and has been used as a catch-all for outlawing practices not specifically outlined in the other rules. The Internet Conduct Standard has long been criticized by Chairman Pai as a severe hindrance to innovation, so it’s no surprise to see it targeted here.

Amongst some other items, the NPRM also proposes returning authority for regulating ISPs’ consumer privacy and data security practices to the Federal Trade Commission (FTC), who served in this role prior to the 2015 Open Internet Order. This would fill the perceived regulatory gap left in the wake of Congress’ decision to use the Congressional Review Act to overturn the FCC’s broadband privacy rules, which were originally passed last fall. It would also mean that a single, uniform set of privacy and data security obligations would again be used to regulate companies’ data security and privacy practices, regardless of who is collecting the data.

The NPRM, as released last week, is merely a draft at this point in time. The FCC commissioners are expected to vote on it at the FCC’s May 18th open meeting, and should it pass, the FCC will open a public comment period on the proposal that will last until mid-August. Like we saw with the last net neutrality rulemaking, this will surely garner a lot of attention, and the FCC will likely have a long, hard battle ahead of it to make the changes proposed in the NPRM.

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