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Latham & Watkins Communications Law Practice
January 9, 2018 | Number 2267
Restoring Internet Freedom: FCC Eliminates Common Carrier
Regulation of Broadband Providers
New FCC order scales back net neutrality mandates while seeking to ensure internet
openness through updated transparency requirements and FTC oversight.
Background
On January 4, 2018, the Federal Communications Commission (FCC) released the 2017 Restoring
Internet Freedom Order (Order), which the agency had adopted by a 3-2 vote on December 14, 2017.1
The Order marks the end of a hotly contested proceeding that saw a record-breaking 23 million
comments filed in the agency’s docket.
A variety of stakeholders, including consumer groups and many internet companies that provide web-
based services (edge providers), contend that the legal framework and net neutrality safeguards adopted
in 2015 are necessary to prevent broadband internet access service (BIAS) providers from throttling,
blocking, and unfairly prioritizing internet content. By contrast, BIAS providers and allied interests have
argued since 2015 that the common carrier model of regulation imposed during the Obama administration
imposes undue regulatory burdens and chills broadband investment and innovation. The Order concludes
that returning to the light-touch model that prevailed before 2015 will best promote investment and
innovation without sacrificing internet openness or otherwise harming competition or consumers.
As a result, the Order makes several significant changes to the regulatory regime governing BIAS
providers, including the following:
1) Reinstates the pre-2015 classification of BIAS as an interstate “information service” under the
Communications Act (Act) — rescinding the “telecommunications service” classification adopted in
2015 and thus eliminating common carrier regulation of BIAS
2) Eliminates the open-ended general conduct standard and the rules prohibiting blocking, throttling, and
paid prioritization
3) Adopts a revised transparency rule under Section 257 of the Act
4) Broadly preempts state and local regulation of BIAS
5) Eliminates regulation of BIAS providers’ internet interconnection and traffic-exchange practices
6) Shifts regulatory oversight of BIAS providers’ conduct — including, in particular, their privacy and data
security practices — to the Federal Trade Commission (FTC)
