Wheeler FCC Reclassifies Broadband Internet Access Service

The second court blow to the “light-touch” regulatory approach led then-FCC Chairman Tom Wheeler to launch a new net neutrality proceeding in April 2014. At the time, Wheeler indicated that reclassification of broadband Internet access service remained a “clear alternative.” On February 26, 2015, the FCC adopted “clear, bright-line” rules based on a “Modern Title II.” For both fixed and mobile broadband Internet access service providers, the FCC rules stated:

• A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management. A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management. A person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not engage in paid prioritization.

• Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and ​use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be considered a violation of this rule.

• A person engaged in the provision of broadband Internet access service shall publicly disclose accurate information regarding the network management practices, performance, and commercial terms of its broadband Internet access services sufficient for consumers to make informed choices regarding use of such services and for content, application, service, and device providers to develop, market, and maintain Internet offerings.

• Although broadband service providers again challenged the FCC’s rules, the U.S. Court of Appeals for the District of Columbia Circuit upheld them in June 2016. The court ruled that the agency could reclassify broadband service as a telecommunications service, thus giving the FCC the ability to enforce the rules.