FCC Reopens Net Neutrality Debate, Seeking “Substantive” Public Comment

On May 18, 2017, the Republican commissioners on the Federal Communications Commission voted to reopen the debate over how to best preserve an Open Internet. Launching a proceeding seeking “substantive” public comment, FCC Chairman Ajit Pai proposed undoing the only legal basis for network neutrality rules that has survived court challenge. The unreleased Notice of Proposed Rulemaking (NPRM) proposes to reverse the FCC’s 2015 ruling that the transmission component of broadband Internet access service (BIAS) is a telecommunications service. The NPRM also proposes to 1) return to the FCC’s original classification of mobile broadband Internet access service as a private mobile service; and 2) eliminate the Internet conduct standard created by the 2015 Order. Finally, the NPRM questions the need for the FCC’s so-called “bright-line rules” which prohibit broadband providers from a) blocking access to legal content, applications, services, or non-harmful devices; b) impairing or degrading lawful Internet traffic on the basis of content, applications, services, or non-harmful devices; and c) favoring some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no "fast lanes." FCC Chairman Ajit Pai said the rewrite would undo the current rules’ overreach, and help spur investment in broadband, which he claims has suffered because broadband providers told him so. "The Internet was not broken in 2015," Chairman Pai said, repeating his often-chosen turn of phrase. "The utility-style regulations known as Title II were and are like the proverbial sledgehammer being wielded against the flea. Except that here, there was no flea." Chairman Pai and his Republican colleague, Commissioner Mike O'Rielly, said the new review of net neutrality will include a cost-benefit analysis, which they say wasn't done in 2015.