Photo of Douglas Jarrett

The entry summarizes the major elements of the Open Internet Order.  An analysis of the FCC’s policy determinations and reasoning for regulating broadband internet access service as a Title II telecommunications service will be provided in a later entry.   

Broadband Internet Access Service Defined.  The Open Internet rules apply to “broadband Internet access service” (BIAS) which is defined, in principal part, as a “mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints.”

Internet access services sold to enterprise customers are excluded, as are specialized services that may utilize BIAS providers’ last mile connectivity.  The latter (referred to as “non-BIAS data services”) include connectivity supporting heart monitors, e-readers, and telematics applications.  Non-BIAS services share several qualities:  they are application-specific, not intended to reach “all Internet endpoints,” and rely on network management to isolate capacity (for these services) from BIAS.

Bright Line Rules:

  1. BIAS providers cannot block lawful content, applications, services, or restrict the use of non-harmful devices to access broadband internet access service, subject to reasonable network management practices.  Unlawful content includes, but is not necessarily limited to, child pornography and copyright-infringing works.
  2. BIAS providers cannot throttle lawful content, applications, or services nor restrict the attachment and use of non-harmful devices except as required for reasonable network management.
  3. BIAS providers cannot engage in paid prioritization that includes direct or indirect favoring of some Internet traffic over other traffic for consideration.  A waiver of this rule may be granted in exceptional cases.

No Unreasonable Interference or Disadvantage to Consumers or Edge Providers. 
This is the FCC’s “free speech” rule for the Internet.  BIAS providers cannot interfere with end users’ access to lawful content, applications, services or devices of their choice and cannot impair the ability of edge providers to make lawful content, applications, services, or devices available to end users.

Enhanced Transparency.  The FCC expands the enhanced transparency rules adopted in 2010 and affirmed in Verizon v. FCC, requiring BIAS providers to disclose promotional rates, all fees and/or surcharges, and all data caps or data allowances; add packet loss as a measure of network performance that must be disclosed; and include specific notifications to consumers that a “network practice” is likely to significantly affect their use of the service.  The level of specificity is noteworthy as is the FCC’s decision to defer the effectiveness of enhanced transparency for BIAS providers having up to 100,000 customers until a rulemaking is concluded by mid-December.

BIAS Classified as a Telecommunications Service.  The FCC’s decision to classify BIAS as a telecommunications service subject to regulation under Title II of the Communications Act will remain a lightning rod of controversy.  While the FCC exercised its forbearance authority under Section 10 of the Communications Act to limit the applicability of many Title II statutory provisions and regulations and is declining to set or review BIAS service rates, the agency is retaining the authority to review and assess any practice, charge or rule of a BIAS provider under the “just and reasonable” and “nondiscriminatory” standards of Sections 201 and 202 of the Act.  End users, other providers, and edge users, among others, may file a complaint against a BIAS provider under Section 208 of the Act.

Mobile Broadband is BIAS, as Well.  Unlike the 2010 Order, the Open Internet Order imposes the same rules on mobile broadband providers as wireline/fixed wireless providers, noting that it will take into account the network management practices associated with mobile broadband technology.  The FCC reassessed prior agency decisions, concluding that mobile broadband service is a commercial mobile service subject to Title II.

Transit and Peering Arrangements.  Leveraging its authority under Title II and to ensure end users and edge providers can reach “all or substantially all Internet endpoints,” the FCC asserts jurisdiction to review and assess Internet peering and transit agreements on a case-by-case basis under Sections 201 and 202 of the Act, but is not imposing the Open Internet rules on these arrangements.  It also emphasizes its jurisdiction is complementary to the antitrust enforcement authority by the Department of Justice.

Advisory Opinions.  Breaking from longstanding practice, the FCC established a process for persons to obtain advisory opinions on questions regarding the Order and rules.  The FCC’s Enforcement Bureau will act on requests for these opinions, but the FCC declined to set a response time.

Deferred Issues.  In addition to the network transparency rules for small BIAS providers, the FCC defers action on two matters triggered by classifying BIAS as a telecommunications service.  First, as a telecommunications service, BIAS revenues are subject to USF contribution requirements under Section 254(d) of the Act.  The FCC “partially forbears” from applying this requirement to BIAS at this time, noting the issue of USF contribution reform is being addressed in an ongoing proceeding.  Second, the FCC committed to initiating a proceeding to establish customer proprietary network information (CPNI) rules for BIAS.