Early Net Neutrality Release: Title II It Is, Including Wireless

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In a rare preview of proposed new rules to be voted on by the FCC, Chairman Tom Wheeler has released a fact sheet and published an op-ed in Wireless Magazine addressing the long-rumored Internet (or net neutrality) proposal to reclassify broadband Internet access under Title II of the Communications Act as well as Section 706 of the Telecommunications Act of 1996 and Title III of the Act specifically for mobile broadband. The new rules in the proposed Order would apply in their entirety to mobile wireless broadband. According to the fact sheet, the proposed Order would:

  • Establish bright line net neutrality rules—including prohibitions on blocking, throttling and paid prioritization—and create a “conduct standard” for broadband providers;
  • Exclude from Title II oversight certain data services that do not go over the public Internet (e.g., VoIP from a cable system); and
  • Establish new authority to address interconnection disputes.

Moreover, the fact sheet indicates that Title II reclassification would apply to certain enumerated following regulated areas, including “core” Title II provisions (Section 201 and 202, e.g., “unjust and unreasonable practices”); consumer complaint enforcement; consumer privacy; fair access to poles and conduits; disability protections; and Universal Service Fund (USF) support for broadband service through partial application of Section 254.

In addition to establishing Title II authority, the proposed Order also would delineate just how the FCC would exercise forbearance. The fact sheet indicates that the areas of the FCC’s forbearance would include:

  • No rate regulation, whereby broadband providers would not be subject to tariffs or other forms of rate approval, unbundling or other utility regulation;
  • No USF contributions, such that broadband providers would not be required to contribute to the USF under Section 254 of the Act; and
  • No new taxes or fees, including automatic USF fees.

Though the draft Order with these new rules will be voted on in the FCC’s February 26, 2015 open meeting and released afterwards, this release essentially greenlights efforts by opponents of net neutrality and/or Title II reclassification to appeal in court or fight for legislative changes to the FCC’s governing laws.

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