On April 27, 2017, the Federal Communications Commission (“FCC”) released a draft Notice of Proposed Rulemaking (“NPRM”), proposing to reverse the FCC’s 2015 Open Internet Order (“Title II Order”), which had applied Title II of the Communications Act of 1934 (“Communications Act”) to Internet service providers.  The day before, FCC Chairman Ajit Pai explained in a speech at the Newseum in Washington, D.C., why he believes this reversal is important to bringing high-speed Internet access to more Americans, creating more jobs, and boosting competition.

Calling Title II “heavy-handed regulation,” Chairman Pai asserted that before it was applied to broadband by the Open Internet Order in 2015, a free and open Internet flourished.  He praised the FCC’s “light-touch regulatory framework” created by President Clinton and a Republican Congress in the Telecommunications Act of 1996—bipartisan legislation supporting U.S. policy “to preserve the vibrant and competitive free market that presently exists for the Internet . . . unfettered by Federal or State regulation.”  These policies, Chairman Pai stated, led to innovation, the development of successful online companies, private sector investment, and improved high-speed access.

Accordingly, the FCC has concluded that if the Title II Order is repealed, companies will spend more to build next-generation networks so that “many more Americans, especially low-income rural and urban Americans, will get high-speed Internet access for the first time” and “will benefit from faster and better broadband”; good paying jobs will be created, like “laying fiber, digging trenches, and connecting equipment to utility poles”; and competition will increase, especially from new entrants and small businesses that cannot meet the demands of Title II.  Further, the FCC concluded, repealing application of Title II to broadband will improve providers’ privacy and data security practices because it will permit the Federal Trade Commission (“FTC”) to regulate broadband services instead of the FCC.

Among other things, the NPRM 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 implementing rules;
• Propose to return authority to the FTC 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 the NPRM proceeding.

Chairman Pai has asked his fellow Commissioners to vote on the NPRM at the FCC’s next monthly meeting, scheduled for May 18, 2017.  If adopted in its current form, the NPRM would set the deadline for comments on July 17, 2017, with reply comments due August 17, 2017.