womblebonddickinson.com 1
February 5, 2018
Net Neutrality Order Deep-Dive: Open Internet Rules Repealed, Transparency
Requirements Remain, FTC Role over Broadband Privacy Restored…For Now
In this Client Alert, we provide a deep dive on the
FCC’s recent Declaratory Ruling, Report and
Order, and Order,
1
that largely repeals the so-
called “Open Internet” regulatory framework
implemented by the prior FCC Chairman in
2015.
2
Few other proceedings have drawn the
amount of public interest as the adoption,
subsequent revision and now repeal of the FCC’s
Open Internet rules. We also provide important
background on the road to where we are today,
including the status of the Federal Trade
Commission’s jurisdiction over broadband
consumer practices involving privacy and data
security, which while restored by the recent
reclassification order, remains at issue in a
pending en banc review in the 9th Circuit.
Background
The FCC’s current approach to the regulatory treatment of
Internet access began in 2002, when it decided to classify
broadband cable modem service as a largely unregulated
“information service” under Title I of the Communications Act
of 1934, as amended (Act). This decision was based on a
view of broadband Internet access service (BIAS) as a
single, functionally integrated data manipulation and
processing service that merely used telecommunications
incidentally to function rather than as a series of information
service applications running over a separate
telecommunications platform. The Commission’s
interpretation, although questioned, was accorded
substantial deference and ultimately upheld by the United
1
In the Matter of Restoring Internet Freedom, WC Docket Nos. 17-
108, Declaratory Ruling, Report and Order, and Order, FCC 17-166
(released January 4, 2018) (Internet Reclassification Order).
2
Protecting and Promoting the Open Internet, WC Docket No. 14-
28, Report and Order on Remand, Declaratory Ruling, and Order,
30 FCC Rcd 5601 (2015) (Title II Order).
States Supreme Court in its 2005 Brand X decision.
3
This
hands-off regulatory approach was also extended in a series
of subsequent decisions to Internet Protocol (IP)-enabled
services that were beginning to be implemented by wireline
and wireless telecommunications service providers and
power companies at that time.
Following the Brand X decision, the FCC proceeded to
establish open Internet principles as a matter of regulatory
policy, first in a 2005 Open Internet Policy Statement and
then in a 2008 decision finding that the network
management practices of Comcast Corp. (Comcast) violated
these principles following complaints regarding Comcast’s
use of reset packets to interfere with peer-to-peer (P2P)
downloads of legal material. Comcast successfully
challenged the FCC’s decision at the U.S. Court of Appeals
for the District of Columbia Circuit, which found that the
Commission’s ancillary jurisdiction under Title 1 of the Act
was insufficient, standing alone, to justify the Commission’s
assertion of jurisdiction over an information services provider
absent some other substantive provision of the Act giving the
FCC authority to act.
4
In response to the Comcast decision, the FCC adopted its
2010 Open Internet Order
5
in which it relied on newly-
claimed regulatory authority under section 706 of the
Telecommunications Act of 1996 to establish blocking and
discrimination prohibitions applicable to residential BIAS
providers, as well as a transparency rule that required BIAS
providers to publicly disclose accurate information regarding
their network management practices, the performance
characteristics of their service, and the general commercial
terms of service. Section 706 of the Telecommunications
Act imposes on the FCC an obligation to encourage
deployment of infrastructure for advanced
3
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545
U.S. 967 (2005) (Brand X).
4
5
Preserving the Open Internet; Broadband Industry Practices, GN
Docket No. 09-191, WC Docket No. 07-52, Report and Order, 25
FCC Rcd 17905 (2010) (Open Internet Order).
