What ISPs Need to Know About the FCC’s Title II/Open Internet Order

On May 7, 2024, the Federal Communications Commission released a Declaratory Ruling reclassifying “broadband Internet access service” (BIAS) as a “telecommunications service” subject to the jurisdiction of the FCC under Title II of the Communications Act. It was accompanied by an Order removing BIAS from most Title II regulations and a Report and Order applying a set of Open Internet rules to BIAS providers. While mainstream press has focused on the "net neutrality" part of the order, this re-re-reclassification of broadband’s regulatory status is important for internet service providers (ISPs).  Ultimately, however, the Order is notable less for its immediate impact on ISPs than for the long-term structural change it represents. The Order applies to BIAS, defined 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." Providers of BIAS are directly affected by the Order in a variety of ways, including a forbearance of rate regulation and maintaining that BIAS does not fall under public-utility regulation.