Today the Federal Communications Commission (“FCC”) issued a draft notice of proposed rulemaking (“NPRM”) to reverse the FCC’s 2015 Open Internet order that reclassified broadband Internet access service as a telecommunications service for the first time under Title II of the Communications Act of 1934. Originally adopted on February 26, 2015, the FCC then based its authority on a hybrid section 706 of the Telecommunications Act and Title II approach, calling it a “Title II tailored for the 21st century.”
Previewing the release of the draft NPRM in a speech on Wednesday, April 26th, FCC Chairman Ajit Pai criticized that approach, saying that the FCC under then Democrat Chairman Tom Wheeler, “on a party line vote, decided to impose a set of heavy-handed regulations upon the Internet” and “to slap an old regulatory framework called ‘Title II’ – originally designed in the 1930s for the Ma Bell telephone monopoly – upon thousands of Internet service providers, big and small.”
A fact sheet entitled “Restoring Internet Freedom” that accompanied the draft NPRM explained that the notice would: “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; propose to reinstate the determination that mobile broadband Internet access service is not a commercial mobile service and in conjunction revisit the elements of the Title II Order that modified or reinterpreted key terms in section 332 of the Communications Act and our implementing rules; propose to return authority to the Federal Trade Commission to police the privacy practices of Internet service providers; propose to eliminate the vague Internet conduct standard; seek comment on whether to keep, modify, or eliminate the bright-line rules set forth in the Title II Order; propose to re-evaluate the Commission’s enforcement regime to analyze whether ex ante regulatory intervention in the market is necessary; and propose to conduct a cost-benefit analysis as part of this proceeding.”
The announcement of plan to include the NPRM on the FCC’s upcoming May 18th open meeting agenda sparked the expected support and opposition. United States Senate Majority Leader Mitch McConnell (R-KY) issued a statement commending Chairman Pai “for taking bold action today to turn back this portion of the Obama Administration’s eight-year regulatory assault on all aspects of our economy.” Representing the views of the other side of the aisle, Senate Minority Leader Chuck Schumer (D-NY) tweeted the warning that “neither the American [people] nor Democrats will tolerate the FCC conspiring [with] industry insiders to roll back critical consumer protections.” Other Republican and Democrat Members issued similar statements in line with the views of their Leaders, highlighting the usual partisan tensions surrounding this issue.
If adopted on May 18th, the NPRM will start a three month formal comment process, with initial comments due on July 17, 2017 and reply comments due on August 17, 2017.
