Previewing the (Net Neutrality) Road Ahead: Chairman Pai Announces a Plan to Reverse the 2015 Open Internet Order

Kelley Drye & Warren LLP
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On April 26, 2017, Ajit Pai, Chairman of the Federal Communications Commission (FCC or the Commission) announced his plans to launch a rulemaking proceeding reassessing the FCC’s Open Internet rules.

During an event at the Newseum in Washington, D.C., Chairman Pai announced that he would present a Notice of Proposed Rulemaking (NPRM) to reassess many aspects of the 2015 Open Internet Order, which reclassified broadband Internet access service (BIAS) as a Title II telecommunications service and imposed a number of common-carrier style regulations on BIAS.  On May 18, 2017, Chairman Pai will ask for a Commission vote on the NPRM at the Commission’s monthly open meeting.

While many questions remain about the specific objectives of the item, according to Chairman Pai, the NPRM contains the following core objectives:

  • Reclassification. The FCC seeks comment on reclassifying BIAS from a Title II telecommunications service to a Title I information service, returning to the status quo before the 2015 Open Internet Order.
  • Reducing Uncertainty. The FCC seeks comment on eliminating the multi-factor general conduct standard contained in the 2015 Open Internet Order. This standard was the basis, for example, for the Wireless Bureau’s 2016 investigations into wireless carrier “free data” programs.
  • Assessing Bright-line Rules. The Commission seeks comment on what ought to be done with respect to the existing bright line rules prohibiting blocking, throttling, and paid prioritization of BIAS traffic.

Following the Chairman’s speech, fellow Republican FCC Commissioner Michael O’Rielly took to the podium to criticize the 2015 Open Internet Order for its general conduct standard and ban on paid prioritization.

The FCC will release the draft text of the NPRM today.  We will follow up as more information becomes available.

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