# 82 FR 25568: Restoring Internet Freedom

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2017-11455

## Section

- **Citation:** 82 FR 25568
- **Heading:** Restoring Internet Freedom
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 82 / 82 FR 25568

## Text

FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 8 and 20 [WC Docket No. 17-108; FCC 17-60] Restoring Internet Freedom AGENCY:
Federal Communications Commission.

ACTION:
Proposed rule.

SUMMARY:
In this document, a Notice of Proposed Rulemaking (NPRM) proposes to end the Commission's public-utility regulation of the Internet and seeks comment on returning to the bipartisan, Title II Order. Specifically, the NPRM proposes to return broadband Internet access service to its classification as an information service, return the classification of mobile broadband to its classification as a private mobile service, and eliminate the Internet standard. The NPRM also seeks comment whether the Commission should keep, modify, or eliminate the bright-line rules set forth in the Title II Order.

DATES:
Comments are due on or before July 17, 2017, and reply comments are due on or before August 16, 2017. Written comments on the Paperwork Reduction Act proposed information collection requirements must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before August 1, 2017.

ADDRESSES:
You may submit comments, identified by WC Docket No. 17-108, by any of the following methods:
Federal Communications Commission's Web site: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
Mail: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission
number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to the Federal Communications Commission via email to PRA@fcc.gov and to Nicole Ongele, Federal Communications Commission, via email to Nicole.Ongele@fcc.gov.
FOR FURTHER INFORMATION CONTACT:
Wireline Competition Bureau, Competition Policy Division, at (202) 418-1580
, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to the Federal Communications Commission via email to PRA@fcc.gov and to Nicole Ongele, Federal Communications Commission, via email to Nicole.Ongele@fcc.gov.
FOR FURTHER INFORMATION CONTACT:
Wireline Competition Bureau, Competition Policy Division, at (202) 418-1580. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, send an email to PRA@fcc.gov or contact Nicole Ongele at (202) 418-2991.

SUPPLEMENTARY INFORMATION:
This is a summary of the Commission's Notice of Proposed Rulemaking ( NPRM ) in WC Docket No. 17-108, adopted May 18, 2017 and released May 23, 2017. The full text of this document is available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It is available on the Commission's Web site at https://apps.fcc.gov/edocs_public/attachmatch/FCC-17-60A1.docx.
This document contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due August 1, 2017
proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due August 1, 2017. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) way to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998), http://www.fcc.gov/Bureaus/OGC/Orders/1998/fcc98056.pdf.
• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: https://www.fcc.gov/ecfs/
s indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998), http://www.fcc.gov/Bureaus/OGC/Orders/1998/fcc98056.pdf.
• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: https://www.fcc.gov/ecfs/. Parties who seek to file a large number of comments or “group” comments may do so through the public API or the Commission's electronic inbox established for this proceeding, called Restoring Internet Freedom Comments at https://www.fcc.gov/restoring-internet-freedom-comments. To ensure that bulk comments are properly recorded in ECFS, commenters must use the .CSV template provided.
• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S
red or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD
• People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
Synopsis
I. Introduction
1. Americans cherish a free and open Internet. And for almost twenty years, the Internet flourished under a light-touch regulatory approach. It was a framework that our nation's elected leaders put in place on a bipartisan basis. President Clinton and a Republican Congress passed the Telecommunications Act of 1996, which established the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.”
2. During this time, the Internet underwent rapid, and unprecedented, growth. Internet service providers (ISPs) invested over $1.5 trillion in the Internet ecosystem and American consumers enthusiastically responded. Businesses developed in ways that the policy makers could not have fathomed even a decade ago. Google, Facebook, Netflix, and countless other online businesses launched in this country and became worldwide success stories. The Internet became an ever-increasing part of the American economy, offering new and innovative changes in how we work, learn, receive medical care, and entertain ourselves.
3. But two years ago, the FCC changed course
makers could not have fathomed even a decade ago. Google, Facebook, Netflix, and countless other online businesses launched in this country and became worldwide success stories. The Internet became an ever-increasing part of the American economy, offering new and innovative changes in how we work, learn, receive medical care, and entertain ourselves.
3. But two years ago, the FCC changed course. It decided to apply utility-style regulation to the Internet. This decision represented a massive and unprecedented shift in favor of government control of the Internet.
4. The Commission's Title II Order has put at risk online investment and innovation, threatening the very open Internet it purported to preserve. Investment in broadband networks declined. Internet service providers have pulled back on plans to deploy new and upgraded infrastructure and services to consumers. This is particularly true of the smallest Internet service providers that serve consumers in rural, low-income, and other underserved communities. Many good-paying jobs were lost as the result of these pull backs. And the order has weakened Americans' online privacy by stripping the Federal Trade Commission—the nation's premier consumer protection agency—of its jurisdiction over ISPs' privacy and data security practices.
5. Today, we take a much-needed first step toward returning to the successful bipartisan framework that created the free and open Internet and, for almost twenty years, saw it flourish. By proposing to end the utility-style regulatory approach that gives government control of the Internet, we aim to restore the market-based policies necessary to preserve the future of Internet Freedom, and to reverse the decline in infrastructure investment, innovation, and options for consumers put into motion by the FCC in 2015
ee and open Internet and, for almost twenty years, saw it flourish. By proposing to end the utility-style regulatory approach that gives government control of the Internet, we aim to restore the market-based policies necessary to preserve the future of Internet Freedom, and to reverse the decline in infrastructure investment, innovation, and options for consumers put into motion by the FCC in 2015. Our actions today continue our critical work to promote broadband deployment to rural consumers and infrastructure investment throughout our nation, to brighten the future of innovation both within networks and at their edge, and to close the digital divide.
II. Ending Public-Utility Regulation of the Internet
6. Between enactment of the Telecommunications Act and the 2015 adoption of the Title II Order, the free and open Internet flourished: Providers invested over $1.5 trillion to construct networks; high-speed Internet access proliferated at affordable rates; and consumers were able to enjoy all that the Internet had to offer. In 2015, the Commission abruptly departed from its prior posture and classified broadband Internet access service as a telecommunications service subject to public-utility regulations under Title II.
7. Today, we propose to reinstate the information service classification of broadband Internet access service and return to the light-touch regulatory framework first established on a bipartisan basis during the Clinton Administration. We also propose to reinstate the determination that mobile broadband Internet access service is not a commercial mobile service.
A. Reinstating the Information Service Classification of Broadband Internet Access Service
8. Our proposal to classify broadband Internet access service as an information service is based on a number of factors. First, we examine the text, structure, and history of the Communications Act and the Telecommunications Act, combined with the technical details of how the Internet works. Second, we examine Commission precedent
ation Service Classification of Broadband Internet Access Service
8. Our proposal to classify broadband Internet access service as an information service is based on a number of factors. First, we examine the text, structure, and history of the Communications Act and the Telecommunications Act, combined with the technical details of how the Internet works. Second, we examine Commission precedent. Third, we examine public policy and our goal of benefiting consumers through greater innovation, investment, and competition. We seek comment on our proposals and these analyses.
1. The Text and Structure of the Act
9. We start with the text of the Act itself. Section 3 of the Act defines an “information service” as “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” Section 3 defines a “telecommunications service” as “the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.” Section 3 also defines “telecommunications,” used in each of the prior two definitions, as “the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.”
10. We believe that Internet service providers offer the “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online
r content of the information as sent and received.”
10. We believe that Internet service providers offer the “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” Whether posting on social media or drafting a blog, a broadband Internet user is able to generate and make available information online. Whether reading a newspaper's Web site or browsing the results from a search engine, a broadband Internet user is able to acquire and retrieve information online. Whether it's an address book or a grocery list, a broadband Internet user is able to store and utilize information online. Whether uploading filtered photographs or translating text into a foreign language, a broadband Internet user is able to transform and process information online. In short, broadband Internet access service appears to offer its users the “capability” to perform each and every one of the functions listed in the definition—and accordingly appears to be an information service by definition. We seek comment on this analysis. Can broadband Internet users indeed access these capabilities? Are there other capabilities that a broadband Internet user may receive with service? If broadband Internet access service does not afford one of the listed capabilities to users, what effect would that have on our statutory analysis? More fundamentally, we seek comment on
11. In the Cable Modem Order, the Commission recognized that broadband Internet users often used services from third parties: “[S]ubscribers, by `click-through' access, may obtain many functions from companies with whom the cable operator has not even a contractual relationship. For example, a subscriber to Comcast's cable modem service may bypass that company's web browser, proprietary content, and email
he Cable Modem Order, the Commission recognized that broadband Internet users often used services from third parties: “[S]ubscribers, by `click-through' access, may obtain many functions from companies with whom the cable operator has not even a contractual relationship. For example, a subscriber to Comcast's cable modem service may bypass that company's web browser, proprietary content, and email. The subscriber is free to download and use instead, for example, a web browser from Netscape, content from Fox News, and email in the form of Microsoft's `Hotmail.'” It nonetheless found the classification appropriate “regardless of whether subscribers use all of the functions provided as part of the service, such as email or web-hosting, and regardless of whether every cable modem service provider offers each function that could be included in the service.” In the Title II Order, the Commission in turn found that “consumers are very likely to use their high-speed Internet connections to take advantage of competing services offered by third parties” and asserted the service “is useful to consumers today primarily as a conduit for reaching modular content, applications, and services that are provided by unaffiliated third parties.” We seek comment on how consumers are using broadband Internet access service today. It appears that, as in 2002 and 2013, broadband Internet users “obtain many functions from companies” other than their Internet service provider. It also appears that many broadband Internet users rely on services, such as Domain Name Service (DNS) and email, from their ISP. Is that correct? If not, what services are broadband Internet users accessing from what providers? More generally, we seek comment on the relevance of this analysis. The definition of “information service” speaks to the “capability” to perform certain functions
rovider. It also appears that many broadband Internet users rely on services, such as Domain Name Service (DNS) and email, from their ISP. Is that correct? If not, what services are broadband Internet users accessing from what providers? More generally, we seek comment on the relevance of this analysis. The definition of “information service” speaks to the “capability” to perform certain functions. Is a consumer capable of accessing these online services without Internet access service? Could a consumer access these online services using traditional telecommunications services like telephone service or point-to-point special access? (In the past, rate-of-return carriers have offered broadband Internet access transmission service as a common-carriage last-mile service that transmits data between and end user and an ISP. Absent an ISP at the other end, however, broadband Internet access transmission service only transmits data to a carrier's central office (or other aggregation point) as it does not itself offer the capabilities that come with Internet access.) Or are we correct that offering Internet access is precisely what makes the service capable of “generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information” to consumers?
12. In contrast, Internet service providers do not appear to offer “telecommunications,” i.e., “the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received,” to their users. For one, broadband Internet users do not typically specify the “points” between and among which information is sent online. Instead, routing decisions are based on the architecture of the network, not on consumers' instructions, and consumers are often unaware of where online content is stored. Domain names must be translated into IP addresses (and there is no one-to-one correspondence between the two)
ne, broadband Internet users do not typically specify the “points” between and among which information is sent online. Instead, routing decisions are based on the architecture of the network, not on consumers' instructions, and consumers are often unaware of where online content is stored. Domain names must be translated into IP addresses (and there is no one-to-one correspondence between the two). Even IP addresses may not specify where information is transmitted to or from because caching servers store and serve popular information to reduce network loads. In short, broadband Internet users are paying for the access to information “with no knowledge of the physical location of the server where that information resides.” We believe that consumers want and pay for these functionalities that go beyond mere transmission—and that they have come to expect them as part and parcel of broadband Internet access service. We seek comment on our analysis. How are broadband Internet users' requests for information handled by Internet service providers today? What functionalities beyond mere transmission do Internet service providers incorporate into their broadband Internet access service? We particularly seek comment on the Title II Order' s assertion that the phrase “points specified by the user” is ambiguous—how should we interpret that phrase so that it carries with it independent meaning and is not mere surplusage? Is it enough, as the Title II Order asserted, for a broadband Internet user to specify the information he is trying to access but not the “points” between or among which the information will be transmitted? Does it matter that the Internet service provider specifies the points between and among which information will be transmitted? (We note that the Title II Order asserted that “[i]t is not uncommon in the toll-free arena for a single number to route to multiple locations, and such a circumstance does not transform that service to something other than telecommunications.” Despite that assertion, the Commissi
atter that the Internet service provider specifies the points between and among which information will be transmitted? (We note that the Title II Order asserted that “[i]t is not uncommon in the toll-free arena for a single number to route to multiple locations, and such a circumstance does not transform that service to something other than telecommunications.” Despite that assertion, the Commission has expressly found that the management of toll-free numbers is “not a common carrier service” and that providers that manage toll-free numbers “do not need to be carriers.”).
13. For another, Internet service providers routinely change the form or content of the information sent over their networks—for example, by using firewalls to block harmful content or using protocol processing to interweave IPv4 networks with IPv6 networks. The Commission has acknowledged that broadband Internet networks must be reasonably managed since at least the 2005 Internet Policy Statement. We believe that consumers want and pay for these functionalities that go beyond mere transmission—and that they have come to expect them as part and parcel of broadband Internet access service. We seek comment on our analysis. What constitutes a “change in the form” of information? If not the protocol-processing for internetworking or other protocol-processing performed as part of Internet access service, how should we interpret this phase so it carries with it independent meaning and is not mere surplusage? How could we plausibly conclude that it is not a “change in the . . . content” to use firewalls and other reasonable network management tools to shield broadband Internet users from unwanted intrusions and thereby alter what information reaches the user for the user's benefit? We seek comment on other ways in which Internet service providers change the form or content of information to facilitate a broadband Internet user's experience online.
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hange in the . . . content” to use firewalls and other reasonable network management tools to shield broadband Internet users from unwanted intrusions and thereby alter what information reaches the user for the user's benefit? We seek comment on other ways in which Internet service providers change the form or content of information to facilitate a broadband Internet user's experience online.
14. Other provisions of the Act appear to confirm our analysis that broadband Internet access services should be classified as information services. For instance, section 230 defines an interactive computer service to mean “ any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” On its face, the plain language of this provision deems Internet access service an information service. We seek comment on this analysis, on the language of section 230, and on how it
15. Section 231 is even more direct. It expressly states that “Internet access service” “does not include telecommunications services.” And it defines Internet access service as one offering many capabilities (like an information service): “a service that enables users to access content, information, electronic mail, or other services offered over the Internet, and may also include access to proprietary content, information, and other services as part of a package of services offered to consumers.” Although inserted into the Communications Act one year after the Telecommunications Act's passage and previously interpreted to “clarify that section 231 was not intended to impair our or a state commission's ability to regulate basic telecommunications services,” this language on its face makes clear that Internet access service is not a telecommunications service
services offered to consumers.” Although inserted into the Communications Act one year after the Telecommunications Act's passage and previously interpreted to “clarify that section 231 was not intended to impair our or a state commission's ability to regulate basic telecommunications services,” this language on its face makes clear that Internet access service is not a telecommunications service. We seek comment on this analysis, on the language of section 231, and on how it should impact our classification of broadband Internet access service.
16. The structure of Title II appears to be a poor fit for broadband Internet access service. In the Title II Order, the Commission, on its own motion, forbore either in whole or in part on a permanent or temporary basis from 30 separate sections of Title II as well as from other provisions of the Act and Commission rules. The significant forbearance the Commission granted in the Title II Order suggests the highly prescriptive regulatory framework of Title II is unsuited for the dynamic broadband Internet access service marketplace. We seek comment on this analysis, and on what weight we should give this analysis in examining the future of this model of regulation.
17. The purposes of the Telecommunications Act appear to be better served by classifying broadband Internet access service as an information service. Congress passed the Telecommunications Act to “promote competition and reduce regulation” and “[n]othing in the 1996 Act or its legislative history suggests that Congress intended to alter the current classification of Internet and other information services or to expand traditional telephone regulation to new and advanced services.” Or as Senator John McCain put it, “[i]t certainly was not Congress's intent in enacting the supposedly pro-competitive, deregulatory 1996 Act to extend the burdens of current Title II regulation to Internet services, which historically have been excluded from regulation.” Or as Congress codified its intent in section 230: It is t
pand traditional telephone regulation to new and advanced services.” Or as Senator John McCain put it, “[i]t certainly was not Congress's intent in enacting the supposedly pro-competitive, deregulatory 1996 Act to extend the burdens of current Title II regulation to Internet services, which historically have been excluded from regulation.” Or as Congress codified its intent in section 230: It is the policy of the United States “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” An information service classification would “reduce regulation” and preserve a free market “unfettered by Federal or State regulation”—but a telecommunications service classification would not. Indeed, as Judge Brown of the D.C. Circuit recently noted, “[b]y incorporating [the] FCC's distinction between `enhanced service' and `basic service' into the statutory scheme, and by placing Internet access on the `enhanced service' side, Congress prohibited the FCC from construing the `offering' of `telecommunications service' to be the `information service' of Internet access.” We seek comment on this analysis, as well as whether there are any other provisions of the Communications Act or Telecommunications Act that establish congressional intent with respect to the appropriate regulatory framework for broadband Internet access services.
18. More broadly, we seek comment on the text, structure, and purposes of the Communications Act and the Telecommunications Act, as well as any additional facts about what Internet service providers offer, how broadband Internet access service works, and what broadband Internet users expect that might inform our analysis.
19. We seek special comment on two aspects of the Title II Order' s interpretation of the Act
e seek comment on the text, structure, and purposes of the Communications Act and the Telecommunications Act, as well as any additional facts about what Internet service providers offer, how broadband Internet access service works, and what broadband Internet users expect that might inform our analysis.
19. We seek special comment on two aspects of the Title II Order' s interpretation of the Act. First, the Title II Order claimed its interpretation sprang in part from a change in “broadband providers' marketing and pricing strategies, which emphasize speed and reliability of transmission separately from and over the extra features of the service packages they offer.” It claimed this marketing “leaves a reasonable consumer with the impression that a certain level of transmission capability—measured in terms of `speed' or `reliability'—is being offered in exchange for the subscription fee, even if complementary services are also included as part of the offer.” We note that even before the Cable Modem Order, the Commission recognized that Internet service providers marketed the speed of their connections. We seek comment on whether Internet service providers' marketing has decidedly changed in recent decades. More generally, we seek comment on the relevance of this argument. Neither statutory service definition speaks of speed or reliability, and there is little reason to think consumers might want a fast or reliable “transmission . . . of information” but not a fast or reliable “capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information.” Indeed, many of the advertisements discussed by the Title II Order speak directly to the capabilities offered through high-speed service. We seek comment on this analysis and on any other relevant facts regarding whether broadband Internet users receive the capabilities of an information service or the mere transmission between points of a user's choosing of a telecommunications service.
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on.” Indeed, many of the advertisements discussed by the Title II Order speak directly to the capabilities offered through high-speed service. We seek comment on this analysis and on any other relevant facts regarding whether broadband Internet users receive the capabilities of an information service or the mere transmission between points of a user's choosing of a telecommunications service.
20. Second, the Title II Order found that DNS and caching used in broadband Internet access service were just used “for the management, control, or operation of a telecommunications system or the management of a telecommunications service.” The Commission has previously held this category applies to “adjunct-to-basic” functions that are “incidental” to a telecommunications service's underlying use and “do not alter [its] fundamental character.” As such, these functions generally are not “useful to end users, rather than carriers.” We seek comment on how DNS and caching functions are now used, whether they benefit end users, Internet service providers, or both, and whether they fit within the adjunct-to-basic exception. How would broadband Internet access service work without DNS or caching? Would removing DNS have a merely incidental effect on broadband Internet users, or would it fundamentally change their online experience? Absent caching, would broadband Internet users that now expect high-quality video streaming see only incidental changes or more fundamental changes? Are there other ways that DNS or caching are used for “for the management, control, or operation of a telecommunications system”? Are there any other aspects of the Title II Order' s treatment of DNS or caching that should be reconsidered here?
2. Commission Precedent Supports Classification as an Information Service
21. Our proposed classification of broadband Internet access service as an information service is firmly rooted in Commission precedent. For two decades, a consistent bipartisan framework supported a free and open Internet
ther aspects of the Title II Order' s treatment of DNS or caching that should be reconsidered here?
2. Commission Precedent Supports Classification as an Information Service
21. Our proposed classification of broadband Internet access service as an information service is firmly rooted in Commission precedent. For two decades, a consistent bipartisan framework supported a free and open Internet. That same consensus led to six separate Commission decisions confirming that Internet access service is an information service, subject to Title I. Chairman Kennard first led the Stevens Report. Chairman Powell led the Commission to classify broadband Internet access service over cable systems as an information service in the Cable Modem Order. Chairman Martin led the Commission to classify several broadband Internet access services as information services in the Wireline Broadband Classification Order, the BPL-Enabled Broadband Order, and the Wireless Broadband Internet Access Order. Finally, Chairman Genachowski declined to reclassify broadband Internet access services in the Open Internet Order.
22. We believe the Commission under Democratic and Republican leadership alike was correct in these decisions to classify broadband Internet access service as an information service and that, 20 years after the passage of the Telecommunications Act, we should be reluctant to second-guess the interpretations of those more likely to understand the contemporary meaning of the terms of the Telecommunications Act. We seek comment on our assessment
and Republican leadership alike was correct in these decisions to classify broadband Internet access service as an information service and that, 20 years after the passage of the Telecommunications Act, we should be reluctant to second-guess the interpretations of those more likely to understand the contemporary meaning of the terms of the Telecommunications Act. We seek comment on our assessment. Did the Commission's historical information service classification better enable flexibility in marketplace offerings? Did the regulatory certainty of maintaining the same regulatory environment for approximately three decades (since the Computer Inquiries ) foster additional investment or innovative business models to benefit consumers? How should we evaluate the prior Commissions' predictions of intermodal competition given the 4,559 Internet service providers now in the market? How many providers would likely have entered the market if traditional Title II regulation had been the norm? What actual harms, if any, resulted from light-touch regulation?
23. The Commission has previously concluded that Congress formally codified information services and telecommunications services as two, mutually exclusive types of service in the Telecommunications Act. The Title II Order did not appear to disagree with this analysis, finding that broadband Internet access service was a telecommunications service and not an information service. We believe this conclusion regarding mutual exclusivity is correct based on the text and history of the Act. We seek comment on this analysis.
24. The Commission has previously found that Congress intended the definitions of information service and telecommunications service in the Act to parallel those definitions in the MFJ and in the Computer Inquiries. The Title II Order apparently accepted these parallels. We thus seek comment on any evidence that the court in the MFJ thought that Internet access service was a telecommunications service
The Commission has previously found that Congress intended the definitions of information service and telecommunications service in the Act to parallel those definitions in the MFJ and in the Computer Inquiries. The Title II Order apparently accepted these parallels. We thus seek comment on any evidence that the court in the MFJ thought that Internet access service was a telecommunications service. Did the court and the Department of Justice intend to exclude Internet access services from the prohibitions on what Bell Operating Companies could offer? Did the court and the Department of Justice intend for Internet access services to be regulated via tariff (as other telecommunications services were)? We similarly seek comment on any evidence that the Commission in the Computer Inquiries thought that Internet access service was a basic service. Did the Commission intend for facilities-based carriers to offer Internet access service without the protections of the Computer Inquiries (as they could for basic services)? The Supreme Court has said that statutory interpretation “must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” How is that canon relevant here?
25. Finally, the Title II Order deviated further from Commission precedent to extend its authority to Internet traffic exchange or “interconnection,” an area historically unregulated and beyond the Commission's reach. We believe Internet traffic exchange, premised on privately negotiated agreements or case-by-case basis, is not a telecommunications service. Moreover, we find nothing in the Act that would extend our jurisdiction as previously suggested by the Title II Order. We further do not believe there exists any non-Title II basis for the Commission to exercise ongoing regulatory oversight over Internet traffic exchange. We accordingly propose to relinquish any authority over Internet traffic exchange
e basis, is not a telecommunications service. Moreover, we find nothing in the Act that would extend our jurisdiction as previously suggested by the Title II Order. We further do not believe there exists any non-Title II basis for the Commission to exercise ongoing regulatory oversight over Internet traffic exchange. We accordingly propose to relinquish any authority over Internet traffic exchange. We seek comment on the consequences and implications of relinquishing the Commission's regulatory authority in this manner.
26. We note that the Commission's Title II Order also went well beyond agency precedent in important ways. For instance, the Commission did not limit its analysis to the “last mile” connections at issue in the Brand X and the FCC's underlying proceeding in that case. Rather, the Commission's Title II Order defined Internet access service as extending far deeper into the network. We seek comment on the significance of this expansive departure from agency precedent.
3. Public Policy Supports Classification as an Information Service
27. The Commission's decision to reclassify broadband Internet access service as a telecommunications service subject to Title II regulation has resulted in negative consequences for American consumers—including depressed broadband investment and reduced innovation because of increased regulatory burdens and regulatory uncertainty stemming from the rules adopted under Title II. As providers have devoted more resources to complying with new regulations, the threat of regulatory enforcement of vague rules and standards has dampened providers' incentive to invest and innovate. Additionally, although reclassifying broadband Internet access service as a telecommunications service has led to significant regulatory burdens, it has not solved any discrete, identifiable problems
As providers have devoted more resources to complying with new regulations, the threat of regulatory enforcement of vague rules and standards has dampened providers' incentive to invest and innovate. Additionally, although reclassifying broadband Internet access service as a telecommunications service has led to significant regulatory burdens, it has not solved any discrete, identifiable problems. Restoring broadband Internet access service to its previous status as an information service subject to Title I is in the public interest because it will alleviate the harms caused by Title II reclassification. We seek detailed comment on this analysis below.
28. Following the 2014 Notice and in the lead up to the Title II Order, Internet service providers stated that the increased regulatory burdens of Title II classification would lead to depressed investment. Recent data indicate how accurate those predictions were. A recent study indicates that capital expenditure from the nation's twelve largest Internet service providers has fallen by $3.6 billion, a 5.6% decline relative to 2014 levels. Another study indicated that between 2011 and 2015, the threat of reclassification reduced telecommunications investment by about 20-30%, or about $30-40 billion annually. Other sources also explain that other countries' experiences should caution the United States that ongoing utility-style regulation should be expected to have even more dramatic impacts on investment beyond what has already occurred. Other interested parties have come to different conclusions. (Free Press, Internet Service Providers' Capital Expenditures (Feb. 28, 2017), (noting a decrease in investment from 2015 to 2016, but claiming an increase in investment in the 2-year period of 2015-16 compared to 2013-14). We observe, however, that these figures showing increased investment do not incorporate the generally accepted accounting practice of maintaining consistency over time, as they include AT&T's foreign capital expenditures in Mexico as well as
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, 2017), (noting a decrease in investment from 2015 to 2016, but claiming an increase in investment in the 2-year period of 2015-16 compared to 2013-14). We observe, however, that these figures showing increased investment do not incorporate the generally accepted accounting practice of maintaining consistency over time, as they include AT&T's foreign capital expenditures in Mexico as well as
29. We believe that these reduced expenditures are a direct and unavoidable result of Title II reclassification, and exercise our predictive judgment that reversing the Title II classification and restoring broadband Internet access service to a Title I service will increase investment. Among other things, Internet service providers have finite resources, and requiring providers to divert some of those resources to newly imposed regulatory requirements adopted under Title II will, unsurprisingly, reduce expenditures that benefit consumers. We seek comment on how the burdens associated with Title II regulation have impacted broadband investment and, as a result, consumers. Has the Commission's increased regulation of broadband adversely impacted broadband investment and innovation? What impact has Title II reclassification had on providers' business models, including any lost opportunity costs, and how has this impact been passed on to consumers? Is there any evidence that increased regulation has promoted broadband investment, as some claim? What are the long-term implications of utility-style regulation with respect to capital expenditures on high-speed networks?
30. We also seek specific comment on how the classification of broadband Internet access service as a telecommunications service has impacted smaller broadband Internet access service providers, many of whom lack the dedicated compliance staffs and financial resources of the nation's largest providers
ations of utility-style regulation with respect to capital expenditures on high-speed networks?
30. We also seek specific comment on how the classification of broadband Internet access service as a telecommunications service has impacted smaller broadband Internet access service providers, many of whom lack the dedicated compliance staffs and financial resources of the nation's largest providers. Before the Commission adopted the Title II Order, many small providers made it clear that reclassification would harm their businesses and the customers they serve. Since reclassification, small providers—including non-profit, municipal ISPs—have been forced to reduce their investment and halt the expansion of their networks, and slow, if not delay, the development and deployment of innovative new offerings. For example, one small ISP had planned to “triple the number of new base stations” that would be deployed each month to provide fixed wireless broadband service to new customers, but put those plans on hold as a result of the Commission's reclassification. Other small providers have had to modify or abandon altogether past business models to account for increased compliance costs and depressed investment from outside investors. This depressed investment has had particularly strong impacts on the deployment of broadband to previously unserved and rural areas. What other impacts have small providers felt as a result of reclassification? Have there been any corresponding benefits for small providers?
31. In addition to imposing significant regulatory costs on Internet service providers, Title II reclassification created significant regulatory uncertainty. USTelecom specifically identified “regulatory uncertainty” as one of the causes of reduced investment. Regulatory uncertainty may have particularly significant effects on small Internet service providers, which may be poorly equipped to address the legal, technical, and financial burdens associated with an uncertain regulatory environment
eclassification created significant regulatory uncertainty. USTelecom specifically identified “regulatory uncertainty” as one of the causes of reduced investment. Regulatory uncertainty may have particularly significant effects on small Internet service providers, which may be poorly equipped to address the legal, technical, and financial burdens associated with an uncertain regulatory environment. That uncertainty has directly led to reduced investment, which has harmed consumers. We seek comment on what other effects regulatory uncertainty has had on broadband Internet access service providers' investment decisions.
32. We also seek comment on other consumer benefits that would result from restoring broadband Internet access service classification to an information service, rather than subjecting these services to utility-style regulation. We note that increased investment is likely to lead to a faster closing of the digital divide for rural and low-income consumers, higher speeds and more competition for all consumers, as well as more affordable prices. We seek comment on the magnitude of these effects, and what further steps the Commission should take to maximize facilities-based investment and competition. Specifically, we seek comment on the trade-offs from changing the classification status. We also seek comment more broadly on the effects on innovation of regulatory uncertainty, and other examples of reduced innovation from Internet service providers as a result of the Title II classification.
33. We also seek comment on specific ways in which consumers were harmed under the light-touch regulatory framework that existed before the Commission's Title II Order. Much of the Title II Order focused extensively on hypothetical actions Internet service providers “might” take, and how those actions “might” harm consumers, but the Title II Order only articulated four examples of actions Internet service providers arguably took to justify its adoption of the Internet conduct standard under Title II
y framework that existed before the Commission's Title II Order. Much of the Title II Order focused extensively on hypothetical actions Internet service providers “might” take, and how those actions “might” harm consumers, but the Title II Order only articulated four examples of actions Internet service providers arguably took to justify its adoption of the Internet conduct standard under Title II. Do these isolated examples justify the regulatory shift that Title II reclassification entailed? Do such isolated examples constitute market failure sufficient to warrant pre-emptive, industry-wide regulation? Were pre-existing federal and state competition and consumer protection regimes, in addition to private sector initiatives, insufficient to address such isolated examples, and if so, why? What are the costs and benefits of pre-emptive, industry-wide regulation in such circumstances? In particular, does that approach deter competition and competitive entry, and does it have unintended consequences with respect to infrastructure investment? Do those unintended consequences outweigh any purported benefits in addressing such isolated cases pre-emptively? Is there evidence of actual harm to consumers sufficient to support maintaining the Title II telecommunications service classification for broadband Internet access service? Is there any evidence that the likelihood of these events occurring decreased with the shift to Title II?
34. Conversely, what, if any, changes have been made as a result of Title II reclassification that have had a positive impact on consumers? Was Title II reclassification necessary for any of those changes to occur? Is there any evidence, for example, that consumers' online experiences and Internet access have improved due to policies adopted in the Title II Order ?
4. The Commission Has Legal Authority To Classify Broadband Internet Access Service as an Information Service
35. As the D.C
at have had a positive impact on consumers? Was Title II reclassification necessary for any of those changes to occur? Is there any evidence, for example, that consumers' online experiences and Internet access have improved due to policies adopted in the Title II Order ?
4. The Commission Has Legal Authority To Classify Broadband Internet Access Service as an Information Service
35. As the D.C. Circuit has held, “[i]t is axiomatic that administrative agencies may issue regulations only pursuant to authority delegated to them by Congress.” And that authority is not unbounded. The Commission has authority, as the Supreme Court recognized in Brand X, to interpret the Communications Act, including ambiguous definitional provisions. However, when interpreting a statute it administers, the Commission, like all agencies, “must operate `within the bounds of reasonable interpretation.' And reasonable statutory interpretation must account for both `the specific context in which . . . language is used' and `the broader context of the statute as a whole.' ”
36. An agency also is free to change its approach to interpreting and implementing a statute so long as it acknowledges that it is doing so and justifies the new approach. Evaluating the change in regulatory approach in the Title II Order, the D.C. Circuit majority USTelecom applied a “highly deferential standard” to the agency's predictive judgments regarding the investment effects of reclassification, and deferred to the Commission's “`evaluat[ion of] complex market conditions'” underlying its rejection of providers' reliance interests in the prior classification. D.C
uating the change in regulatory approach in the Title II Order, the D.C. Circuit majority USTelecom applied a “highly deferential standard” to the agency's predictive judgments regarding the investment effects of reclassification, and deferred to the Commission's “`evaluat[ion of] complex market conditions'” underlying its rejection of providers' reliance interests in the prior classification. D.C. Circuit precedent also recognizes, however, that should the Commission's predictions “prove erroneous, the Commission will need to reconsider” the associated regulatory actions “in accordance with its continuing obligation to practice reasoned decision-making.” We believe that the Commission's predictions and expectations regarding broadband investment and the nature and effects of reclassification on the operation of the marketplace were mistaken and have not been borne out by subsequent events. Moreover, we believe that a restoration of the information service classification for broadband Internet access service is likely to increase infrastructure investment. In such a case, principles of administrative law give us more than ample latitude to revisit our approach. We seek comment on this overall approach, and we seek comment on these specific issues in the sections below.
37. Even more fundamentally, we believe that the Commission's statutory interpretation in the Title II Order did not adequately reflect proper standards of statutory construction, and that classifying broadband Internet access service as an information service is the better reading of the statute, independent of the factual developments subsequent to the Title II Order. We note that the Supreme Court has expressly upheld the Commission's prior information service classification. We seek comment on this analysis
adequately reflect proper standards of statutory construction, and that classifying broadband Internet access service as an information service is the better reading of the statute, independent of the factual developments subsequent to the Title II Order. We note that the Supreme Court has expressly upheld the Commission's prior information service classification. We seek comment on this analysis. Although the Title II Order' s telecommunications service classification was upheld in USTelecom, the court emphasized that it “sit[s] to resolve only legal questions presented and argued by the parties,'” and not “`arguments a party could have made but did not.” Many arguments as to why an information service classification of broadband Internet access service reflects the better reading of ambiguous provisions of the Act were not addressed by the court because the arguments were raised in support of a claim that the Act unambiguously required a particular service classification. (Or, in other cases they were not addressed at all. rejecting arguments that information service classification was unambiguously required based on the text, structure, and purpose of the Act; highlighting the limited ways in which USTelecom challenged the Title II Order for failing to demonstrate that the NARUC test for common carriage was met; rejecting arguments that the statute completely precludes the Commission from defining “public switched network” more broadly than the public switched telephone network; rejecting arguments that the statute necessarily compels the Commission to distinguish between “mobile broadband alone enabling a connection” and “mobile broadband enabling a connection through use of adjunct applications such as VoIP”). Thus, although we are in any case free to revisit previously affirmed interpretations of ambiguous statutory language, we note that the USTelecom decision did not reach many aspects of the statutory analysis we propose here
Commission to distinguish between “mobile broadband alone enabling a connection” and “mobile broadband enabling a connection through use of adjunct applications such as VoIP”). Thus, although we are in any case free to revisit previously affirmed interpretations of ambiguous statutory language, we note that the USTelecom decision did not reach many aspects of the statutory analysis we propose here. We seek comment on this analysis and on our reasoning that the statutory interpretation proposed in this NPRM more faithfully adheres to the Act and reflects the better reading of the relevant provisions than the views adopted in the Title II Order.
B. Reinstating the Private Mobile Service Classification of Mobile Broadband Internet Access Service
38. We propose to classify all broadband Internet access services—both fixed and mobile—as information services. With respect to mobile broadband Internet access service, we further propose to return it to its original classification as a private mobile service, and in conjunction to revisit the elements of the Title II Order that modified or reinterpreted key terms in section 332 of the Act and our implementing rules. We seek comment on that proposal, including on the specific issues discussed below. We also generally seek comment on whether certain and, if so, which, aspects of the D.C. Circuit's analysis of mobile broadband Internet access service in USTelecom necessitate modifications or additions to the Commission's proposals with respect to mobile broadband Internet access service here. We also seek comment on the scope of the authority delegated by sections 332(d)(1) through (3) to the Commission to define or specify the terms used in section 332 and discussed below.
39. We propose to restore the meaning of “public switched network” under section 332(d)(2) to its pre- Title II Order focus on the traditional public switched telephone network
adband Internet access service here. We also seek comment on the scope of the authority delegated by sections 332(d)(1) through (3) to the Commission to define or specify the terms used in section 332 and discussed below.
39. We propose to restore the meaning of “public switched network” under section 332(d)(2) to its pre- Title II Order focus on the traditional public switched telephone network. We find persuasive the Commission's reasoning when originally adopting the prior definition, which also appears more consistent with the historical usage of the term “public switched network,” appears to better accord with the text of section 332(d)(2) by clearly covering only a single, integrated network, and was not disturbed by Congress in amendments to section 332 of the Act. We seek comment on this analysis and our proposed approach.
40. We also propose to return to our prior definition of “interconnected service” by restoring the word “all” in the codified definition. Although the court in USTelecom found the deletion of “all” to be “of no consequence” to the reclassification of mobile broadband Internet access service, it did so based on an argument that the Commission never mentioned in its brief—namely, that mobile broadband users can reach telephone customers “via VoIP” and that this determination is sufficient (regardless of the deletion of the word “all”) to render mobile broadband Internet access service interconnected with the public switched network. We seek comment on that view and whether the Commission erred in 2015 by modifying the definition based on the view that two separate networks can be interconnected if they do not allow all users to communicate with each other. (Had all the elements of the Title II Order' s mobile broadband Internet access service classification remained, a future Commission might have incentives to continue pursuing such an approach to avoid the potentially absurd result that traditional wireless voice service no longer constituted commercial mobile service
be interconnected if they do not allow all users to communicate with each other. (Had all the elements of the Title II Order' s mobile broadband Internet access service classification remained, a future Commission might have incentives to continue pursuing such an approach to avoid the potentially absurd result that traditional wireless voice service no longer constituted commercial mobile service. While not finding it a sufficient basis to reject the Title II Order' s treatment of mobile broadband Internet access service, the D.C. Circuit acknowledged the possibility that the revised definition of public switched network raised questions about whether traditional wireless voice service was sufficiently interconnected with the public switched network to still constitute a commercial mobile service.) The FCC's prior decision in this respect appears to run contrary to the focus on a single, integrated network that we believe Congress likely intended in section 332(d)(2). We seek comment on these views. In the Title II Order, the Commission noted that the prior definition of “interconnected service” would encompass a service that “provides general access to points on the PSN [but] also restricts calling in certain limited ways” (such as blocking of 900 numbers), but cited no evidence that the prior definition led to any confusion. We question the need for changes to the prior definition to account for that limited exception to
41. We also seek comment on whether any other interpretations of section 332 or our implementing rules from the Title II Order should be revisited here in connection with our proposed classification of mobile broadband Internet access service
evidence that the prior definition led to any confusion. We question the need for changes to the prior definition to account for that limited exception to
41. We also seek comment on whether any other interpretations of section 332 or our implementing rules from the Title II Order should be revisited here in connection with our proposed classification of mobile broadband Internet access service. For example, would a narrower interpretation of “capability” for purposes of the definition of “interconnected service” under our rules be warranted based on the Act or the regulatory history of that language? Are there other interpretations that should be reconsidered? In addition to the changes to the definitions in section 20.3 of the rules discussed above, would any additional changes to our codified rules be warranted?
42. In applying the definitions and interpretations of key terms in section 332 and our implementing rules under the proposals above, we also propose to reach the same conclusions regarding the application of those terms to mobile broadband Internet access service as we did in the Wireless Broadband Internet Access Order. We seek comment on that proposal and whether there have been any material changes in technology, the marketplace, or other facts that would warrant refinement or revision of any of that analysis.
43. Furthermore, insofar as mobile broadband Internet access service is best interpreted to be an information service, we believe that likely also would counsel in favor of classifying it as a private mobile service to avoid the inconsistency of the service being both an information service and a common carrier service. The Commission explained this reasoning when originally classifying mobile broadband Internet access service as both an information service and a private mobile service, and we propose to apply that same reasoning again here. We seek comment on this proposal.
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t as a private mobile service to avoid the inconsistency of the service being both an information service and a common carrier service. The Commission explained this reasoning when originally classifying mobile broadband Internet access service as both an information service and a private mobile service, and we propose to apply that same reasoning again here. We seek comment on this proposal.
44. We also believe that mobile broadband Internet access service is not the “functional equivalent” of commercial mobile service, and seek comment on that view. The Commission previously has observed, in light of Congress's determinations in section 332, that “very few mobile services that do not meet the definition of CMRS will be a close substitute for a commercial mobile radio service.” By contrast, we are concerned that the Title II Order' s test, which focuses on whether the service merely “enables ubiquitous access to the vast majority of the public,” would eviscerate the statutory scheme. We believe that the standard for demonstrating functional equivalency under our rules is instead more likely to properly implement section 332(d)(3) of the Act, and we thus propose to reconsider the Title II Order' s position that the Commission is free to depart from that standard. In addition, the Title II Order made no claim that the functional equivalency standard in our rules was met by mobile broadband Internet access service, and we similarly propose here that it does not meet that standard. We seek comment on these proposals and on any other or different definition of “functional equivalent” that the FCC should adopt.
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mission is free to depart from that standard. In addition, the Title II Order made no claim that the functional equivalency standard in our rules was met by mobile broadband Internet access service, and we similarly propose here that it does not meet that standard. We seek comment on these proposals and on any other or different definition of “functional equivalent” that the FCC should adopt.
45. Given the apparent historical success of the wireless marketplace prior to the Title II Order, we anticipate that returning mobile broadband Internet access service to its original classification of a private mobile service and restoring prior definitions and interpretations of key concepts in section 332 is likely to substantially benefit the wireless marketplace and consumers and have few, if any, policy disadvantages. We seek comment on this view. To the extent any commenters believe that these proposals will have negative policy consequences, we seek specific information regarding the scope or significance of any such consequences and whether they can be mitigated in whole or in part through modifications to our proposals.
C. Effects on Regulatory Structures Created by the Title II Order
46. The Title II Order imposed additional regulatory frameworks under Title II, including forbearance and privacy. We seek comment on how we should treat those structures and proceedings moving forward.
47. Forbearance. If we adopt our lead proposal to remove the Title II reclassification of broadband Internet access service, what effect does that action have on the provisions of the Act from which the Commission forbore in the Title II Order ? We believe that restoring the classification status of broadband Internet access service to an information service will render any additional forbearance moot in most cases. We seek comment on this analysis
move the Title II reclassification of broadband Internet access service, what effect does that action have on the provisions of the Act from which the Commission forbore in the Title II Order ? We believe that restoring the classification status of broadband Internet access service to an information service will render any additional forbearance moot in most cases. We seek comment on this analysis. At the same time, we seek comment on whether, with respect to broadband Internet access service, the Commission should maintain and extend forbearance to even more provisions of Title II as a way of further ensuring that our decision in this proceeding will prove to reduce regulatory burdens.
48. We also seek comment on the effect of reinstating an information service classification on providers that voluntarily offered broadband transmission on a common carrier basis under the Wireline Broadband Classification Order framework. The Title II Order allowed such providers to opt-in to the Title II Order 's forbearance framework. Should providers voluntarily electing to offer broadband transmission on a common carrier basis be able to do so under the Title II Order 's forbearance framework if we reclassify broadband Internet access service as an information service? If not, what transition mechanisms are required for such providers that opted-in to the Title II Order 's forbearance framework to enable them to revert back to the Wireline Broadband Classification Order framework? Should we extend forbearance to any other rules or statutory provisions for carriers that choose to offer broadband transmission on a common carrier basis?
49. Section 222 Regulations. Historically, the Federal Trade Commission (FTC) protected the privacy of broadband consumers, policing every online company's privacy practices consistently and initiating numerous enforcement actions
framework? Should we extend forbearance to any other rules or statutory provisions for carriers that choose to offer broadband transmission on a common carrier basis?
49. Section 222 Regulations. Historically, the Federal Trade Commission (FTC) protected the privacy of broadband consumers, policing every online company's privacy practices consistently and initiating numerous enforcement actions. When the Commission reclassified broadband Internet access service as a common carriage telecommunications service in 2015, however, that action stripped FTC authority over Internet service providers because the FTC is prohibited from regulating common carriers. (One Ninth Circuit case held that the common carrier exemption precluded FTC oversight of ISPs that otherwise were common carriers with respect to non ISP services. As the FCC recently explained in that case, the panel decision erred by overlooking the textual relationship between the statutes governing the FTC's and FCC's jurisdiction. The FCC's letter called on the Ninth Circuit to grant rehearing, which it recently did, and in doing so it set aside the earlier and erroneous panel opinion. The recent en banc order by the Ninth Circuit means that the Title II Order 's reclassification of broadband Internet access service serves as the only limit on the authority of the FTC to oversee the conduct of Internet service providers). To address the gap created by the Commission's reclassification of broadband Internet access service as a common carriage service, the Title II Order called for a new rulemaking to apply section 222's customer proprietary network information provisions to Internet service providers. In October 2016, the Commission 2016 Privacy Order, which prevents us from adopting rules in substantially the same form.
50. We propose to respect the jurisdictional lines drawn by Congress whereby the FTC oversees Internet service providers' privacy practices, given its decades of experience and expertise in this area. We seek comment on this proposal
provisions to Internet service providers. In October 2016, the Commission 2016 Privacy Order, which prevents us from adopting rules in substantially the same form.
50. We propose to respect the jurisdictional lines drawn by Congress whereby the FTC oversees Internet service providers' privacy practices, given its decades of experience and expertise in this area. We seek comment on this proposal.
51. Lifeline. We propose to maintain support for broadband in the Lifeline program after reclassification. In the Universal Service Transformation Order, the Commission recognized that “[s]ection 254 grants the Commission the authority to support not only voice telephony service but also the facilities over which it is offered” and “allows us to . . . require carriers receiving federal universal service support to invest in modern broadband-capable networks.” Accordingly, as the Commission did in the Universal Service Transformation Order, we propose requiring Lifeline carriers to use Lifeline support “for the provision, maintenance, and upgrading” of broadband services and facilities capable of providing supported services. We seek comment on this proposal. We also seek comment on any rule changes necessary to effectuate this change in our underlying authority to support broadband for low-income individuals and families.
52. Other. Beyond the issues raised above, we seek comment on the impact of reclassification on other Commission proceedings and proposals
es and facilities capable of providing supported services. We seek comment on this proposal. We also seek comment on any rule changes necessary to effectuate this change in our underlying authority to support broadband for low-income individuals and families.
52. Other. Beyond the issues raised above, we seek comment on the impact of reclassification on other Commission proceedings and proposals. For instance, how should we take into account our proposed reclassification in our proposals with respect to pole attachments and our inquiries with respect to preemption under section 253 of the Act? How should the Broadband Deployment Advisory Committee factor in the reduced regulatory burdens and increased investment that we anticipate will flow from reclassification? More generally, if broadband Internet access service is classified as an interstate information service, how would that impact jurisdiction? We encourage commenters to offer specific recommendations as to how we can leverage our proposed reclassification in other proceedings to further encourage broadband deployment to all Americans.
III. A Light-Touch Regulatory Framework
53. Proposing to restore broadband Internet access service to its long-established classification as an information service reflects our commitment to a free and open Internet. Indeed, our lead proposal reaffirms the long-standing, bipartisan consensus begun in the Clinton Administration by restoring the Internet to the dynamic state that allowed it to flourish prior to the Title II Order. To determine how to best honor our commitment to restoring the free and open Internet, we propose re-evaluating the Commission's existing rules and enforcement regime to analyze whether ex ante regulatory intervention in the market is necessary
tisan consensus begun in the Clinton Administration by restoring the Internet to the dynamic state that allowed it to flourish prior to the Title II Order. To determine how to best honor our commitment to restoring the free and open Internet, we propose re-evaluating the Commission's existing rules and enforcement regime to analyze whether ex ante regulatory intervention in the market is necessary. To the extent we decide to retain any of the Commission's ex ante regulations, we seek comment on whether, and how, we should modify them, specifically considering different approaches such as self-governance or ex post enforcement that may effectuate our goals better than across-the-board rules. Finally, we discuss the Commission's legal authority to adopt rules governing Internet service provider practices.
A. Re-Evaluating the Existing Rules and Enforcement Regime
54. Below, we explore the best method to restore the long-standing consensus under both Democratic and Republican-led Commissions, represented by the four Internet Freedoms, that consumers should have access to the content, applications, and devices of their choosing as well as meaningful information about their service, all without deterring the investment and innovation that has allowed the Internet to flourish. We examine these freedoms and the Commission's current rules related to them, and for each, ask whether we should keep, modify, or eliminate them.
1. Eliminating the Internet Conduct Standard
55. In the Title II Order, the Commission created a catch-all standard intended to prohibit “current or future practices that cause the type of harms [the Commission's] rules are intended to address.” This standard allows the Commission to prohibit practices that it determines unreasonably interfere with or unreasonably disadvantage the ability of consumers to reach the Internet content, services, and applications of their choosing or of online content, applications, and service providers to access consumers
actices that cause the type of harms [the Commission's] rules are intended to address.” This standard allows the Commission to prohibit practices that it determines unreasonably interfere with or unreasonably disadvantage the ability of consumers to reach the Internet content, services, and applications of their choosing or of online content, applications, and service providers to access consumers. This standard also gives the Commission discretion to prohibit any Internet service provider practice that it believes violates any one of the non-exhaustive list of factors adopted in the Title II Order.
56. We propose eliminating this Internet conduct standard and the non-exhaustive list of factors intended to guide application of the rule, and we seek comment on this proposal. What are the costs of the present Internet conduct standard and implementing factors? Do the standard and its implementing factors provide carriers with adequate notice of what they are and are not allowed to do? Does the standard benefit consumers in any way and, if so, how? We believe that eliminating the Internet conduct standard will promote network investment and service-related innovation by eliminating the uncertainty caused by vague and undefined regulation. Do commenters agree?
57. Because the Internet conduct standard is premised on theoretical problems that will be adjudicated on an individual, case-by-case basis, Internet service providers must guess at what they are permitted and not permitted to do. The now-retracted so-called Zero Rating Report issued by the Wireless Telecommunications Bureau illustrates the dilemma providers experience under a Title II regulatory regime. After a thirteen-month investigation, the Report did not specifically call for an end to any provider's practices or identify any particular harm from offering consumers free data
they are permitted and not permitted to do. The now-retracted so-called Zero Rating Report issued by the Wireless Telecommunications Bureau illustrates the dilemma providers experience under a Title II regulatory regime. After a thirteen-month investigation, the Report did not specifically call for an end to any provider's practices or identify any particular harm from offering consumers free data. Instead, it stated that the free-data plans “may raise” economic and public policy issues that “may harm consumers and competition.” It then reiterated that any determination about the harm from free data offerings would be made by the Commission on a “case-by-case” basis, using a “non-exhaustive list of factors.” Instead of giving providers clear rules of the road to govern future conduct, this report put a provider on notice that an enforcement action could be just around the corner. The Report, and the investigation that preceded it, left Internet service providers with two options: Either wait for a regulatory enforcement action that could arrive at some unspecified future point or stop providing consumers with innovative offerings. We seek comment on whether this roving mandate has impacted innovation, and what impact that has had on consumers. We seek comment on whether eliminating this vague standard will spur innovation and benefit consumers.
58. We propose not to adopt any alternatives to the Internet conduct rule, and we seek comment on this proposal. Is there a need for any general non- 2014 Notice proposed prohibiting “commercially unreasonable practices.” Should we consider that alternative? Or should we consider another general rule and framework (such as Commission adjudication of non-discrimination complaints)? If we adopt our proposals to eliminate the Internet conduct standard and not to adopt any alternative general requirement, we seek comment on how we can encourage innovative business models that give consumers more choices and lower prices while also promoting consumer freedom on the Internet
der another general rule and framework (such as Commission adjudication of non-discrimination complaints)? If we adopt our proposals to eliminate the Internet conduct standard and not to adopt any alternative general requirement, we seek comment on how we can encourage innovative business models that give consumers more choices and lower prices while also promoting consumer freedom on the Internet.
2. Determining the Need for the Bright Line Rules and the Transparency Rule
59. In the Title II Order, despite virtually no quantifiable evidence of consumer harm, the Commission nevertheless determined that it needed bright line rules banning three specific practices by providers of both fixed and mobile broadband Internet access service: Blocking, throttling, and paid prioritization. The Commission also “enhanced” the transparency rule by adopting additional disclosure requirements. Today, we revisit these determinations and seek comment on whether we should keep, modify, or eliminate the bright line and transparency rules.
60. At the outset of our review of the Commission's existing rules, we seek comment on whether ex ante regulatory intervention in the market is necessary in the broadband context. Beyond the few, scattered anecdotes cited by the Title II Order, have there been additional, concrete incidents that threaten the four Internet Freedoms sufficient to warrant adopting across-the-board rules? Is there any evidence of market failure, or is there likely to be, sufficient to warrant pre-emptive, comprehensive regulation? How have marketplace developments impacted the incentive and ability, if any, of broadband Internet access service providers to engage in conduct that is contrary to the four Internet Freedoms? Must we find that market power exists to retain rules in this space, and if so must the rules only apply to providers that have market power? Further, should any approach we adopt—whether ex ante rules, expectations regarding industry self-governance, or ex post enforcement practices—vary based
Internet access service providers to engage in conduct that is contrary to the four Internet Freedoms? Must we find that market power exists to retain rules in this space, and if so must the rules only apply to providers that have market power? Further, should any approach we adopt—whether ex ante rules, expectations regarding industry self-governance, or ex post enforcement practices—vary based on the size, financial resources, customer base of the broadband Internet access service provider, and/or other factors? Specifically, we seek comment on whether rules are necessary for or burdensome on smaller providers.
61. The Commission partially justified the 2015 rules on the theory that the rules would prevent anti-competitive behavior by ISPs seeking to advantage affiliated content. With the existence of antitrust regulations aimed at curbing various forms of anticompetitive conduct, such as collusion and vertical restraints under certain circumstances, we seek comment on whether these rules are necessary in light of these other regulatory regimes. Could the continued existence of these rules negatively impact future innovative, pro-competitive business deals that would not by themselves run afoul of merger conditions or established antitrust law?
62. In addition, the D.C. Circuit majority that reviewed the Title II Order stated that “[i]f a broadband provider . . . were to choose to exercise editorial discretion—for instance, by picking a limited set of Web sites to carry and offering that service as a curated internet experience,” then the Title II Order “excludes such [a] provider[ ] from the rules.” Given that an ISP can avoid Title II classification simply by blocking enough content, are the purported benefits of the existing rules more illusory than they initially appear? By disclosing to consumers that it is offering a “curated internet experience,” can an ISP escape from the ambit of the rules entirely? We seek comment on the implications of the D.C. Circuit's observation.
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he rules.” Given that an ISP can avoid Title II classification simply by blocking enough content, are the purported benefits of the existing rules more illusory than they initially appear? By disclosing to consumers that it is offering a “curated internet experience,” can an ISP escape from the ambit of the rules entirely? We seek comment on the implications of the D.C. Circuit's observation.
63. Need for the No-Blocking Rule. We emphasize that we oppose blocking lawful material. The Commission has repeatedly found the need for a no-blocking rule on principle, asserting that “the freedom to send and receive lawful content and to use and provide applications and services without fear of blocking is essential to the Internet's openness.” We merely seek comment on the appropriate means to achieve this outcome consistent with the goals of maintaining Internet freedom, maximizing investment, and respecting the rule of law. We seek comment on whether a codified no-blocking rule is needed to protect such freedoms. For example, prior to 2015, many large Internet service providers voluntarily abided by the 2010 no-blocking rule in the absence of a regulatory obligation to do so. Do we have reason to think providers would behave differently today if the Commission were to eliminate the no-blocking rule? Is the no-blocking rule necessary for or burdensome on smaller providers?
64. We seek comment on the continuing need for a no-blocking rule. The no-blocking rule, originally adopted in 2010, invalidated by the Verizon court, and re-adopted in the Title II Order, prohibits Internet service providers from blocking competitors' content by mandating that a customer has a right to access lawful content, applications, services, and to use non-harmful devices, subject to reasonable network management.
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tinuing need for a no-blocking rule. The no-blocking rule, originally adopted in 2010, invalidated by the Verizon court, and re-adopted in the Title II Order, prohibits Internet service providers from blocking competitors' content by mandating that a customer has a right to access lawful content, applications, services, and to use non-harmful devices, subject to reasonable network management.
65. If we determine that a no-blocking rule is indeed necessary to ensure a free, open, and dynamic Internet, what are the best means to achieve this outcome consistent with the goals of maintaining Internet freedom and maximizing investment? Should we consider modifying the existing no-blocking rule to better align with our proposed legal classification of broadband Internet access service as an information service? The Verizon court made clear that the Commission's 2010 no-blocking rule impermissibly subjected Internet service providers to common-carriage regulation. We seek comment on whether there are other formulations of a no-blocking rule that are consistent with our proposed legal classification of broadband Internet access service as an information service and for which we would have legal authority.
66. Need for the No-Throttling Rule. In the Title II Order, the Commission concluded that throttling was a sufficiently severe and distinct threat that it required its own, separate, codified rule. The no-throttling rule mirrors the no-blocking rule and bans the impairment or degradation of lawful Internet traffic or use of a non-harmful device, subject to reasonable network management practices. We seek comment on whether this rule is still necessary, particularly for smaller providers
hrottling was a sufficiently severe and distinct threat that it required its own, separate, codified rule. The no-throttling rule mirrors the no-blocking rule and bans the impairment or degradation of lawful Internet traffic or use of a non-harmful device, subject to reasonable network management practices. We seek comment on whether this rule is still necessary, particularly for smaller providers. How does the rule benefit consumers, and what are its costs? When is “throttling” harmful to consumers? Does the no-throttling rule prevent providers from offering broadband Internet access service with differentiated prioritization that benefits consumers? Does the no-throttling rule harm latency-sensitive applications and content? Does it prevent product differentiation among ISPs? If we eliminate the no-blocking rule, should we also eliminate the no-throttling rule? If we determine that a no-throttling rule is indeed necessary to ensure a free, open, and dynamic Internet, are there ways in which we could modify the no-throttling rule so it aligns with our proposed legal classification of broadband Internet access service as an information service and for which we would have legal authority?
67. The Commission justified the separate, codified no-throttling rule on
68. Need for the No Paid Prioritization Rule. The Commission concluded in the Title II Order that “fast lanes” or “paid prioritization” practices “harm consumers, competition, and innovation, as well as create disincentives to promote broadband deployment.” The Commission adopted this ex ante flat ban on individual negotiations to address an apparently nonexistent problem. The ban on paid prioritization did not exist prior to the Title II Order and even then the record evidence confirmed that no such rule was needed since several large Internet service providers made it clear that that they did not engage in paid prioritization and had no plans to do so. We seek comment on the continued need for such a rule and our authority to retain it.
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y nonexistent problem. The ban on paid prioritization did not exist prior to the Title II Order and even then the record evidence confirmed that no such rule was needed since several large Internet service providers made it clear that that they did not engage in paid prioritization and had no plans to do so. We seek comment on the continued need for such a rule and our authority to retain it.
69. What are the trade-offs in banning business models dependent on paid prioritization versus allowing them to occur when overseen by a regulator or industry actors? Is there a risk that banning paid prioritization suppresses pro-competitive activity? For example, could allowing paid prioritization give Internet service providers a supplemental revenue stream that would enable them to offer lower-priced broadband Internet access service to end-users? What would be the impacts on new startups and innovation? Does a no-paid-prioritization rule harm the development of real-time or interactive services? Could allowing paid prioritization enable certain critical information, such as consumers' health care vital signs that are being monitored remotely, to be transmitted more efficiently or reliably? What other considerations mitigate any potential negative impacts from business models like paid prioritization? Should the Commission impose restrictions on these business models at all?
70. We seek comment on current traffic delivery arrangements online. How do content, application, and service providers host their data online? Do they rely on installing their own servers in data centers, content delivery networks, or cloud-based hosting? What are the varying service characteristics of these options and their varying costs? It appears that some larger online content providers like Netflix host their own data centers and interconnect directly with Internet service providers
n, and service providers host their data online? Do they rely on installing their own servers in data centers, content delivery networks, or cloud-based hosting? What are the varying service characteristics of these options and their varying costs? It appears that some larger online content providers like Netflix host their own data centers and interconnect directly with Internet service providers. Is that still true? What are the service characteristics and costs of this option? How should the existence of these arrangement impact our evaluation of whether Internet service providers should be able to offer an alternative delivery option such paid prioritization?
71. For those parties that believe an ex ante flat ban on paid prioritization is necessary, are there other formulations of a no-paid-prioritization rule that are consistent with our proposed legal classification of broadband Internet access service as an information service and for which we would have legal authority? Are there any other formulations that are consistent with allowing pro-competitive or pro-consumer paid prioritization arrangements? Would we need to modify the rule and, if so, how?
72. Need for the Transparency Rule. We seek comment on whether to keep, modify, or eliminate the transparency rule. When the Commission adopted the transparency rule in 2010 and enhanced it in 2015, it found that “effective disclosure of Internet service providers' network management practices, performance, and commercial terms of service promotes competition, innovation, investment, end-user choice, and broadband adoption.” We continue to support these objectives and seek comment on whether the existing transparency rule is the best way to accomplish them, or if there are other methods we can employ to achieve the goals of competition, innovation, investment, end-user choice, and broadband adoption.
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ommercial terms of service promotes competition, innovation, investment, end-user choice, and broadband adoption.” We continue to support these objectives and seek comment on whether the existing transparency rule is the best way to accomplish them, or if there are other methods we can employ to achieve the goals of competition, innovation, investment, end-user choice, and broadband adoption.
73. Although we agree that the disclosure requirements were among some of the least intrusive regulatory measures imposed by the Title II Order, we seek comment on whether the additional reporting obligations from that rule remains necessary in today's competitive broadband marketplace. What are the benefits and drawbacks of those additional reporting obligations? Is the length of time necessary to obtain approval of these rules, first adopted in February 2015 and yet not going into effect until nearly two years later, illustrative of just how burdensome the new enhancements are in comparison to the 2010 rule? Would the original transparency rule, which has been continuously operational since it came into effect following adoption of the Open Internet Order, be sufficient to protect consumers? Although the Verizon court upheld the 2010 transparency rule, we seek comment on our authority to retain the 2015 “enhancements” or to modify the transparency rule in a manner distinct from the Open Internet Order or Title II Order. For example, does the full and accurate disclosure of service plan information to consumers carry with it most of the benefits of the rule? How often do non-consumers rely on the additional disclosures required by the transparency rule? Are those additional benefits worth the additional cost of compliance, especially for small businesses?
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stinct from the Open Internet Order or Title II Order. For example, does the full and accurate disclosure of service plan information to consumers carry with it most of the benefits of the rule? How often do non-consumers rely on the additional disclosures required by the transparency rule? Are those additional benefits worth the additional cost of compliance, especially for small businesses?
74. Assuming we find a transparency rule necessary, how should we treat the additional guidance related to the transparency rule? For example, should we continue to enforce guidance from the Commission's Chief Technology Officer regarding acceptable methodologies for disclosure of network performance to satisfy the enhanced transparency rule? Is there merit in continuing to promote the broadband consumer labels that provided ISPs with a safe harbor—or do those standardized notices harm consumers by preventing them from obtaining additional information? Does the repeated need for advisory guidance following the original 2010 transparency rule indicate that the rule itself is too open-ended?
3. Additional Considerations Applicable to Existing Rules
75. Should we decide to keep or modify any of our existing open Internet rules, we propose and seek comment on several issues related to their continued operation.
76. Scope. Should we keep any of the existing bright-line rules or the transparency rule, we propose maintaining the definitions of the services applicable to the rules, the scope of the term “lawful content,” the exception for reasonable network management, and other provisions adopted in the Title II Order so as not to impact ISPs rights or obligations with respect to other laws or safety and security considerations. Reasonable network management “allow[s] service providers the freedom to address legitimate needs such as avoiding network congestion and combating harmful or illegal content” without running afoul of the rules
nable network management, and other provisions adopted in the Title II Order so as not to impact ISPs rights or obligations with respect to other laws or safety and security considerations. Reasonable network management “allow[s] service providers the freedom to address legitimate needs such as avoiding network congestion and combating harmful or illegal content” without running afoul of the rules. With respect to the definition of “reasonable network management,” we seek comment on whether we should eliminate the restriction imposed by the Title II Order that the exception will only be considered if used for a “technical management justification rather than other business justifications,” or if we
77. For the reasonable network management exception and definition of non-broadband Internet access service data services that fall outside the scope of the rules, we seek comment on how we should view any additional guidance explaining those terms as set forth in the Title II Order, but not codified as part of the rules. Should we follow the case-by-case approach taken for evaluating reasonable network management? For non-broadband Internet access service data services, should we adhere to the characteristics of non-broadband Internet access service data services described in the Title II Order ? Or, should we revert to the general concept of non-broadband Internet access service data services discussed in the Open Internet Order (and then known as “specialized services”)? Further, for non-broadband Internet access service data services, should we eliminate the guidance that if non-broadband Internet access service data services “are undermining investment, innovation, competition, and end-user benefits,” then the Commission will take enforcement action—including the particularized focus on ensuring that “over-the-top services offered over the Internet are not impeded in their ability to compete with other data services?”
78. Application to Mobile
the guidance that if non-broadband Internet access service data services “are undermining investment, innovation, competition, and end-user benefits,” then the Commission will take enforcement action—including the particularized focus on ensuring that “over-the-top services offered over the Internet are not impeded in their ability to compete with other data services?”
78. Application to Mobile. To the extent we keep or modify any of the existing rules, we seek comment on whether mobile broadband should be treated differently from fixed broadband. The Title II Order applied the Internet openness rules equally to both fixed and mobile broadband Internet access services. This approach departed from the Open Internet Order' s framework, which adopted a different no-blocking standard for mobile broadband Internet access service and excluded mobile from the no unreasonable discrimination rule. Are there legal, technical, economic, and/or policy reasons to distinguish mobile and fixed broadband with respect to rules in this context, and if so how should we differentiate the two in any rules that we keep or modify? For instance, several mobile providers who opposed application of the broader rules in 2015 argued that additional rules were unnecessary because competition for mobile broadband service adequately restrained the behavior of mobile Internet service providers. We seek comment on whether this contention is correct in today's marketplace.
4. Enforcement Regime
79. Should we keep or modify any of the Commission's existing rules discussed above, we seek comment on how we should enforce them. In the Open Internet Order the Commission set forth procedures for filing both informal and formal complaints. Commission rules currently provide for filing fees in the case of complaints to enforce Part 8 rules governing broadband Internet access service and in the case of data roaming complaints
ny of the Commission's existing rules discussed above, we seek comment on how we should enforce them. In the Open Internet Order the Commission set forth procedures for filing both informal and formal complaints. Commission rules currently provide for filing fees in the case of complaints to enforce Part 8 rules governing broadband Internet access service and in the case of data roaming complaints. Would those rules need to be modified in the event that we reclassify broadband Internet access service? Could some rules subject to those complaint procedures remain? Are there other similar issues the Commission would need to address? The Title II Order also allowed the Enforcement Bureau to issue advisory opinions and enforcement advisories, and it created an ombudsperson position to provide effective access to dispute resolution. We seek comment on whether advisory opinions or enforcement advisories have benefitted consumers or broadband Internet access service providers. If we restore the broadband Internet access service classification to an information service, should that alter our complaint and enforcement process in this context?
80. Additionally, we seek comment on streamlining future enforcement processes. For instance, we propose eliminating the ombudsperson role. Is the role of an ombudsperson necessary to protect consumer, business, and other organizations' interests when the Commission has a Bureau—the Consumer and Governmental Affairs Bureau (CGB)—dedicated to protecting consumer interests? Our experience suggests that consumers are comfortable working with CGB, and typically did not call on the ombudsperson specifically. Has the ombudsperson been called to action to assist in circumstances that otherwise could not have been handled by CGB?
81. What have been the benefits and drawbacks of the complaint procedures instituted in 2010 and 2015? Since these rules were formally codified in 2010, only one formal complaint has been filed under them to date
GB, and typically did not call on the ombudsperson specifically. Has the ombudsperson been called to action to assist in circumstances that otherwise could not have been handled by CGB?
81. What have been the benefits and drawbacks of the complaint procedures instituted in 2010 and 2015? Since these rules were formally codified in 2010, only one formal complaint has been filed under them to date. Can we infer that parties heeded the Commission's encouragement to “resolve disputes through informal discussions and private negotiations” without Commission involvement, except through the informal complaint process? Does the lack of formal complaints indicate that dedicated, formal enforcement procedures are unwarranted? If we restore broadband Internet access service's classification as an information service, should that alter our complaint and enforcement process in this context? If so, in what way should the processes be altered? Are there methods other than formal complaints we can employ to ensure a free and open Internet?
82. In addition to the enforcement regime, the Title II Order delegated authority to several Bureaus and Offices to make further decisions involving the rules following their adoption. For example, the Title II Order delegated authority to the Chief Technologist to provide guidance under the transparency rule and further delegated authority to several Bureaus to determine whether the safe harbor disclosures under the transparency rule aligned with the Commission's expectations. If we determine there is no need for the existing transparency rule or enforcement regime, then we believe that the technological and safe harbor guidance would become irrelevant. We also believe that the safe harbor disclosure guidance would be rendered moot. We seek comment on this analysis and on whether there nonetheless are any affirmative steps the Commission should take with respect either to those delegations of authority or to actions already taken in reliance on that delegated authority.
B
that the technological and safe harbor guidance would become irrelevant. We also believe that the safe harbor disclosure guidance would be rendered moot. We seek comment on this analysis and on whether there nonetheless are any affirmative steps the Commission should take with respect either to those delegations of authority or to actions already taken in reliance on that delegated authority.
B. Legal Authority To Adopt Rules
83. We seek comment on the legal authority that the Commission would have in this area if we adopted our lead proposal to classify broadband Internet access service as an information service.
84. Section 706. We seek comment on whether section 706(a) and (b) of the 1996 Act are best interpreted as hortatory rather than as delegations of regulatory authority. Such an interpretation generally is reflected in the Commission's approach to section 706 prior to 2010. The text of these provisions also appears more naturally read as hortatory, particularly given the lack of any express grant of rulemaking authority, authority to prescribe or proscribe the conduct of any party, or to enforce compliance. Although some courts have held that the Commission's post-2010 interpretation of section 706(a) and/or (b) as a grant of regulatory authority was not unreasonable, we seek comment on whether interpreting those provisions as hortatory nonetheless is the better reading. Or should we maintain our post-2010 interpretation of these provisions? Alternatively, we seek comment whether section 706 reflects a “deregulatory bent,” and, if so, how we should interpret that with respect to obligations for regulated entities. If section 706 reflects a deregulatory
85. Section 230. We also seek comment on whether section 230 gives us the authority to retain any rules that were adopted in the Title II Order. In Comcast, the D.C
these provisions? Alternatively, we seek comment whether section 706 reflects a “deregulatory bent,” and, if so, how we should interpret that with respect to obligations for regulated entities. If section 706 reflects a deregulatory
85. Section 230. We also seek comment on whether section 230 gives us the authority to retain any rules that were adopted in the Title II Order. In Comcast, the D.C. Circuit observed that the Commission there “acknowledge[d] that section 230(b)” is a “statement [ ] of policy that [itself] delegate[s] no regulatory authority.” Are there grounds for the Commission to revisit that interpretation or otherwise invoke section 230 here? For example, the D.C. Circuit in Comcast speculated that “[p]erhaps the Commission could use section 230(b) . . . to demonstrate . . . a connection” to an “express statutory delegation of authority,” although it had not done so there. If the Commission were to demonstrate a connection to an express statutory delegation of authority, what would such a demonstration look like? What, if any, express statutory delegations of authority over broadband Internet access service exist?
86. Other Sources of Legal Authority. Should we determine rules are indeed necessary in this space, we seek comment on any other sources of independent legal authority we might use to support such rules. For example, we seek comment on the Communications Act authority cited by the Commission in its Open Internet Order. If any other sources of legal authority exist, to what extent could they be used? And, what are the trade-offs, including the advantages and disadvantages, of using any of these other sources of legal authority in lieu of Title II provisions that depend on the classification of broadband Internet access service as a telecommunications service and/or section 706 of the 1996 Act?
87. Constraints on our Legal Authority. The Commission has repeatedly recognized that adopting rules like these raises constitutional concerns
advantages and disadvantages, of using any of these other sources of legal authority in lieu of Title II provisions that depend on the classification of broadband Internet access service as a telecommunications service and/or section 706 of the 1996 Act?
87. Constraints on our Legal Authority. The Commission has repeatedly recognized that adopting rules like these raises constitutional concerns. For example, some petitioners in the USTelecom v. FCC case argued that compelling an Internet service provider to carry all speech violates the First Amendment. Others have argued that “[t]here is no principled basis for distinguishing the speech of broadband providers from other speakers using older technologies.” The D.C. Circuit Court of Appeals disagreed, finding that “the First Amendment poses no bar to the rules.” However, at least one judge on the D.C. Circuit believes that the Commission's current “net neutrality rule violates the First Amendment to the U.S. Constitution . . . . [because] the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market.” We seek comment on whether the First Amendment or any other constitutional provision, or any other federal law, would constrain the Commission from adopting rules here. If a rule poses serious constitutional concerns, how should we modify it? Does the continued classification of broadband Internet access service as a common-carriage service itself raise any constitutional concerns?
C. Cost-Benefit Analysis
88. We propose as part of this proceeding to conduct a cost-benefit analysis (CBA). We propose to compare the costs and the benefits of maintaining the classification of broadband Internet access service as a telecommunications service ( i.e
tinued classification of broadband Internet access service as a common-carriage service itself raise any constitutional concerns?
C. Cost-Benefit Analysis
88. We propose as part of this proceeding to conduct a cost-benefit analysis (CBA). We propose to compare the costs and the benefits of maintaining the classification of broadband Internet access service as a telecommunications service ( i.e. Title II regulation); (Throughout this section, when discussing maintaining broadband Internet access service as a telecommunications service, we mean as actually implemented by the Title II Order, where the Commission forbore from applying some sections of the Act and some Commission rules) maintaining the Internet conduct rule; maintaining the no-blocking rule; maintaining the no-throttling rule; maintaining the ban on paid prioritization; maintaining the transparency rules; and acting on the other interpretive and policy changes for which we seek comment above. We seek comment on how the CBA should be conducted to appropriately separate or combine the analyses of each piece discussed above. We also seek comment generally on the importance of conducting a CBA as well as the interaction between the Commission's public interest standard and a weighing of the costs and benefits.
89. Given the size of the economic impacts due to our decisions in this proceeding, it is especially important to evaluate whether the decision will have net positive benefits. Our presumption is that the effects of the decision would have an annual effect on the economy of at least $100 million which is the federal government's standard threshold for requiring agencies covered by Executive Order 12866 to conduct a regulatory analysis. (A “regulatory analysis” has three key components: (1) A statement of the need for a proposed action, (2) an examination of alternative approaches, and (3) an evaluation of the benefits and the costs)
an annual effect on the economy of at least $100 million which is the federal government's standard threshold for requiring agencies covered by Executive Order 12866 to conduct a regulatory analysis. (A “regulatory analysis” has three key components: (1) A statement of the need for a proposed action, (2) an examination of alternative approaches, and (3) an evaluation of the benefits and the costs). The other parts of this NPRM effectively seek comment on the first and second pieces of the regulatory analysis). Executive Order 12866 indicates regulatory actions are economically significant if they “[h]ave an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.” While the Commission is not required by law to comply with this Executive Order, we believe the $100 million threshold provides a helpful guideline for when a CBA is clearly appropriate. (While we believe it is clearly appropriate for actions in excess of $100 million, we make no suggestion here about whether the Commission should conduct CBAs below that threshold). We seek comment on our assertion that conducting a CBA is appropriate and that the decision is likely to be economically significant.
90. In conducting the CBA, we propose to follow standard practices employed by the federal government. Specifically we propose to follow the guidelines in section E (“Identifying and Measuring Benefits and Costs”) of the Office of Management and Budget's Circular A-4. This publication provides guidelines that an agency can follow for identifying and quantifying costs and benefits associated with regulatory decisions while allowing for appropriate latitude in how the analysis is conducted for a particular regulatory situation. We seek comment on following Circular A-4 generally
Measuring Benefits and Costs”) of the Office of Management and Budget's Circular A-4. This publication provides guidelines that an agency can follow for identifying and quantifying costs and benefits associated with regulatory decisions while allowing for appropriate latitude in how the analysis is conducted for a particular regulatory situation. We seek comment on following Circular A-4 generally. We also seek comment on any specific portions of Circular A-4 where the Commission should diverge from the guidance provided. Commenters should explain why particular guidance in Circular A-4 should not be followed in this circumstance and should propose alternatives.
91. Any CBA should be conducted by comparing the costs and benefits relative to the “baseline” scenario. As OMB Circular A-4 explains, “[t]his baseline should be the best assessment ex ante FCC regulation relative to FTC ex post regulation. We seek comment on the appropriate baseline scenarios that should be used and on our proposed course of action above.
92. In weighing the costs and benefits of any policy, there always exists an element of uncertainty. As commenters suggest costs and benefits the Commission should consider, we ask that to the extent possible information could also be provided about the level of certainty surrounding a scenario or particular value. Also, various costs and benefits are likely to occur at different points in time. When suggesting costs and benefits, we seek comment on the timing of those costs and benefits. (As explained in OMB Circular A-4, section E, the timing of costs and benefits is important because ultimately the CBA will need to discount future costs and benefits for the purpose of calculating net present benefits.) We also seek comment on how uncertainty around and timing of costs and benefits should interact in the analysis.
93. Costs. There is evidence that the actions taken by the Commission in the Title II Order have reduced investments by

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2017-11455. Check the current official text before relying on it. Not legal advice.