The Federal Communications Commission has released a long-awaited notice of proposed rulemaking (NPRM) with the goal of bringing back its 2015 net neutrality rules that classified broadband internet as a common carrier and prohibited the blocking, throttling, and paid prioritization of content. The 2015 rules, promulgated under the Obama administration, were repealed in 2017 by former Commissioner Ajit Pai.
Though many expected President Biden's 2020 victory to result in re-adoption of the 2015 rules, President Biden did not appoint a fifth Commissioner to the FCC until recently, leaving the agency at a 2-2 standstill down party lines for the past two years. With the appointment of Commissioner Anna Gomez, Biden's FCC is now at full operating capacity to move forward on major actions and reestablish the net neutrality rules. And with the NPRM, the Commission has demonstrated that there are a multitude of changed conditions that necessitate re-adopting the 2015 rules: the NPRM establishes "the increased importance of [broadband internet access service] to consumers since the onset of the pandemic," that consumers' perception of broadband internet access service as a standalone telecommunications service is "more pronounced now than it was in 2015," and that "developments in recent years have highlighted national security and public safety concerns arising in connection with the U.S. communications sector[.]"
While the NPRM hews closely to the original framework of the 2015 rules, there are crucial differences. First, content delivery networks and internet backbone services, including transit arrangements, which were excluded from the 2015 rules, might be included in the proposed definition of "broadband internet access service." Second, the Commission is considering adopting a "broad preemption decision" to ensure a "uniform, nationwide framework of open internet rules[.]" The 2015 rules dealt with situations where "a state elect[s] to restrict entry into the broadband market" on a case-by-case basis; the Commission now asks whether it should "affirmatively preempt in those scenarios here."
Significantly, the Commission is also proposing to "depart from the forbearance approach reflected in the 2015 Open Internet Order by declining to forbear from applying section 214 of the Act, and expressly clarifying that our proposed forbearance would not encompass Title III licensing and authorization authorities[.]" Under section 214, carriers must be authorized by the Commission to provide domestic and international telecommunications service in the United States. There might also be forbearance exceptions for "statutory authorities that could enable the Commission to advance the Act's goals of national security and public safety." The FCC is set to vote on a plan to begin the process of restoring the 2015 rules at its upcoming open meeting on October 19th. The agency has stated that it has enough non-appropriations funding to operate through October 20th in the likely event of a government shutdown, but has not commented on the impact of a shutdown on the NPRM.
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