FCC-23-83A1.pdf

Federal Communications Commission FCC 23-83

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Safeguarding and Securing the Open Internet

)

WC Docket No. 23-320

NOTICE OF PROPOSED RULEMAKING

Adopted: October 19, 2023 Released: October 20, 2023

Comment Date: December 14, 2023

Reply Date: January 17, 2024

By the Commission: Chairwoman Rosenworcel and Commissioners Starks and Gomez issuing separate

statements; Commissioners Carr and Simington dissenting and issuing separate statements.

TABLE OF CONTENTS

I. INTRODUCTION...................................................................................................................................1

II. BACKGROUND.....................................................................................................................................4

III. PROPOSED CLASSIFICATION OF BROADBAND INTERNET ACCESS SERVICE ..................16

A. Broadband Internet Access Service is Essential .............................................................................17

B. Reclassification is Necessary to Ensure Internet Openness, Safeguard National Security,

Protect Public Safety, and Support Other Public Interest Goals.....................................................21

1. Ensuring Internet Openness......................................................................................................23

2. Safeguarding National Security and Preserving Public Safety ................................................25

3. Protecting Consumers’ Privacy and Data Security ..................................................................40

4. Supporting Access to Broadband Internet Access Service.......................................................46

5. Access for Persons with Disabilities ........................................................................................55

6. The RIF Order’s Policy Rationales Did Not Justify Reversing the Classification of

Broadband Service....................................................................................................................56

C. Scope of Reclassification................................................................................................................59

D. Classifying Broadband Internet Access Service as a Telecommunications Service ......................68

E. Classifying Mobile Broadband Internet Access Service as a Commercial Mobile Service ...........85

F. Preemption of State and Local Regulation of Broadband Service..................................................94

IV. PROPOSED FORBEARANCE ............................................................................................................98

A. Forbearance Framework ...............................................................................................................100

B. Proposed Forbearance...................................................................................................................104

V. PROPOSED OPEN INTERNET RULES ...........................................................................................115

A. Need for Rules ..............................................................................................................................117

1. Promoting Innovation and Free Expression ...........................................................................118

2. Protecting Public Safety .........................................................................................................120

3. ISPs’ Incentive and Ability to Harm Internet Openness ........................................................123

4. Consumer Demand and Edge Innovation...............................................................................130

5. The Commission’s Ability to Address Conduct that Undermines an Open Internet .............134

6. The RIF Order’s Framework..................................................................................................135

B. Conduct Rules...............................................................................................................................148

1. Preventing Blocking of Lawful Content, Applications, Services, and Non-harmful

Devices ...................................................................................................................................151

Federal Communications Commission FCC 23-83

2. Preventing Throttling of Lawful Content, Applications, Services, and Non-harmful

Devices ...................................................................................................................................154

3. No Paid or Affiliated Prioritization ........................................................................................158

4. General Conduct Rule ............................................................................................................164

C. Transparency Rule ........................................................................................................................169

1. Policy Benefits of Transparency Requirements .....................................................................170

2. Content of Required Disclosures............................................................................................172

3. Means of Disclosure...............................................................................................................177

4. Implementation and Other Issues ...........................................................................................183

D. Scope of Open Internet Rules .......................................................................................................187

E. Enforcement of Open Internet Rules ............................................................................................189

F. Investigations and Complaints......................................................................................................193

G. Legal Authority.............................................................................................................................194

1. Section 706 of the 1996 Act ...................................................................................................195

2. Title II of the Act With Forbearance ......................................................................................202

3. Title III of the Act for Mobile Providers................................................................................204

4. Other Possible Sources of Legal Authority............................................................................205

H. Other Laws and Considerations ....................................................................................................208

VI. CONSTITUTIONAL CONSIDERATIONS.......................................................................................212

A. First Amendment ..........................................................................................................................213

1. Free Speech Rights.................................................................................................................214

2. Compelled Disclosure ............................................................................................................219

B. Fifth Amendment Takings ............................................................................................................222

VII. PROCEDURAL MATTERS..............................................................................................................224

VIII. ORDERING CLAUSES ...................................................................................................................231

APPENDIX A – PROPOSED RULES

APPENDIX B – INITIAL REGULATORY FLEXIBILITY ANALYSIS

I. INTRODUCTION

1. Today we propose to reestablish the Federal Communications Commission’s

(Commission) authority over broadband Internet access service by classifying it as a telecommunications

service under Title II of the Communications Act of 1934, as amended (Act). While Internet access has

long been important to daily life, the COVID-19 pandemic and the rapid shift of work, education, and

health care online demonstrated how essential broadband Internet connections are for consumers’

participation in our society and economy. Congress responded by investing tens of billions of dollars into

building out broadband Internet networks and making access more affordable and equitable, culminating

in the generational investment of $65 billion in the Infrastructure Investment and Jobs Act.

2. But even as our society has reconfigured itself to do so much online, our institutions have

fallen behind. There is currently no expert agency ensuring that the Internet is fast, open, and fair. Since

the birth of the modern Internet in the 1990s, the Commission had played that role, but the Commission

abdicated that responsibility in 2018, just as the Internet was becoming more vital than ever.

3. Restoring Title II authority will allow the Commission to safeguard and secure the open

Internet in three significant ways. First, this authority will allow the Commission to protect consumers,

including by issuing straightforward, clear rules to prevent Internet service providers from engaging in

practices harmful to consumers, competition, and public safety, and by establishing a national regulatory

approach rather than disparate requirements that vary state-by-state. Second, reclassification will

strengthen the Commission’s ability to secure communications networks and critical infrastructure against

national security threats. Third, the reclassification will enable the Commission to protect public safety

during natural disasters and other emergencies. Our proposals to safeguard and secure the open Internet

build on several other actions the Commission has taken since the onset of the COVID-19 pandemic to

Federal Communications Commission FCC 23-83

ensure that the public has access to broadband.

We believe that the actions we propose today are critical

to protecting the nation’s security and the public’s safety and to ensuring that consumers and competition

can flourish in the modern Internet economy.

II. BACKGROUND

4. As former Chairman Michael Powell noted in 2004, “ensuring that consumers can obtain

and use the content, applications and devices they want . . . is critical to unlocking the vast potential of the

broadband Internet.”

In recognition of this fact, in 2005, the Commission unanimously approved the

Internet Policy Statement, which laid out four guiding principles designed to encourage broadband

deployment and “preserve and promote the open and interconnected nature of the public Internet.”

These principles sought to ensure that consumers had the right to access and use the lawful content,

applications, and devices of their choice online, and to do so in an Internet ecosystem defined by

competitive markets.

5. Over the next decade, the Commission consistently attempted to apply basic “rules of the

road” protecting the openness of the Internet. From 2005 to 2011, the principles embodied in the Internet

Policy Statement were incorporated as conditions by the Commission into several merger orders,

including the SBC/AT&T, Verizon/MCI, and Comcast/NBCU mergers, and into the open platform

requirements for a key 700 MHz license—the Upper 700 MHz C block.

Commission approval of these

See, e.g., Affordable Connectivity Program Emergency; Broadband Benefit Program, WC Docket Nos. 21-450 and

20-445, Report and Order and Further Notice of Proposed Rulemaking, 37 FCC Rcd 484 (2022) (taking steps to

ensure broadband connections were affordable through the Emergency Broadband Benefit Program and successor

Affordable Connectivity Program, as directed by Congress); Establishing Emergency Connectivity Fund to Close

the Homework Gap, Report and Order, 36 FCC Rcd 8696 (2021) (extending the benefits of broadband connections

available to schools and libraries to students and patrons who needed connections at home through the Emergency

Connectivity Fund); Promoting Telehealth for Low-Income Consumers; COVID-19 Telehealth Program, WC

Docket Nos. 18-213 and 20-89, Report and Order, 35 FCC Rcd 3366 (2020) (establishing the COVID-19 Telehealth

Program to help health care providers provide connected care services to patients at their homes or mobile locations

in response to the pandemic); Improving Competitive Broadband Access to Multiple Tenant Environments, WC

Docket No. 17-142, Report and Order and Declaratory Ruling, 37 FCC Rcd 2448 (2022) (taking steps to ensure that

consumers in multi-tenant environments can obtain broadband service offerings from competing providers);

Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination,

GN Docket No. 22-69, Notice of Proposed Rulemaking, FCC 22-98 (rel. Dec. 21, 2022) (exploring how to address

digital discrimination to ensure every person has equal access to critical broadband connections).

Michael K. Powell, Chairman, Federal Communications Commission, Preserving Internet Freedom: Guiding

Principles for the Industry 3, Remarks at the Silicon Flatirons Symposium (Feb. 8, 2004),

https://apps.fcc.gov/edocs_public/attachmatch/DOC-243556A1.pdf.

Appropriate Framework for Broadband Access to the Internet over Wireline Facilities; Review of Regulatory

Requirements for Incumbent LEC Broadband Telecommunications Services; Computer III Further Remand

Proceedings: Bell Operating Company Provision of Enhanced Services; 1998 Biennial Regulatory Review-Review

of Computer III and ONA Safeguards and Requirements; Inquiry Concerning High-Speed Access to the Internet

Over Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory Treatment for

Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-185, CC Docket Nos. 02-33, 01-337,

98-10, and 95-20, CS Docket No. 02-52, Policy Statement, 20 FCC Rcd 14986, 14987-88, para. 4 (2005) (Internet

Policy Statement).

Subject to “reasonable network management,” the principles were intended to ensure consumers had the right to

(1) “access the lawful Internet content of their choice;” (2) “run applications and use services of their choice;” (3)

“connect their choice of legal devices that do not harm the network;” and (4) enjoy “competition among network

providers, application and service providers, and content providers.” Internet Policy Statement, 20 FCC Rcd at

14987-88, paras. 4-5.

SBC Communications Inc. and AT&T Corp. Applications for Approval of Transfer of Control, WC Docket No. 05-

65, Memorandum Opinion and Order, 20 FCC Rcd 18290, 18392, para. 211 & Appx. F (2005) (SBC/AT&T Merger

(continued….)

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transactions was expressly conditioned on compliance with the Internet Policy Statement.

During this

time, open Internet principles were also applied to particular enforcement proceedings aimed at

addressing anti-competitive behavior by service providers.

6. In 2010, the Court of Appeals for the D.C. Circuit rejected the Commission’s attempt to

enforce open Internet principles based on the Commission’s Title I ancillary authority in Comcast v.

FCC.

Following Comcast, the Commission adopted the 2010 Open Internet Order,

a codification of the

policy principles contained in the Internet Policy Statement. The 2010 Open Internet Order was based on

broadly accepted Internet norms and the Commission’s extensive regulatory experience in preserving

(Continued from previous page)

Order); Verizon Communications Inc. and MCI, Inc. Applications for Approval of Transfer of Control, WC Docket

No. 05-75, Memorandum Opinion and Order, 20 FCC Rcd 18433, 18537, para. 221 (2005) (Verizon/MCI Merger

Order); Applications of Comcast Corporation, General Electric Company and NBC Universal, Inc. for Consent to

Assign Licenses and Transfer Control of Licenses, MB Docket No. 10-56, Memorandum Opinion and Order, 26

FCC Rcd 4238, 4275, para. 94 & n.213 (2011) (Comcast/NBCU Merger Order); Service Rules for the 698-746, 747-

762 and 777-792 MHz Bands; Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911

Emergency Calling Systems; Section 68.4(a) of the Commission's Rules Governing Hearing Aid-Compatible

Telephones; Biennial Regulatory Review-Amendment of Parts 1, 22, 24, 27, and 90 to Streamline and Harmonize

Various Rules Affecting Wireless Radio Services; Former Nextel Communications, Inc. Upper 700 MHz Guard

Band Licenses and Revisions to Part 27 of the Commission's Rules; Implementing a Nationwide, Broadband,

Interoperable Public Safety Network in the 700 MHz Band; Development of Operational, Technical and Spectrum

Requirements for Meeting Federal, State and Local Public Safety Communications Requirements Through the Year

2010; Declaratory Ruling on Reporting Requirement under Commission’s Part 1 Anti-Collusion Rule, WT Docket

Nos. 07-166, 06-169, 06-150, 03-264, and 96-86, PS Docket No. 06-229, CC Docket No. 94-102, Second Report

and Order, 22 FCC Rcd 15289, 15364, paras. 203-204 (2007) (700 MHz Second Report and Order); see also 47

CFR § 27.16.

SBC/AT&T Merger Order, 20 FCC Rcd at 18392, para. 211 & Appx. F; Verizon/MCI Merger Order, 20 FCC Rcd

at 18537, para. 221; Comcast/NBCU Merger Order, 26 FCC Rcd at 4275, para. 94 & n.213; 700 MHz Second

Report and Order, 22 FCC Rcd at 15364, paras. 203-204; 47 CFR § 27.16. Additionally, the Commission used the

Internet Policy Statement principles as a yardstick to evaluate other large-scale transactions, such as an

Adelphia/Time Warner/Comcast licensing agreement, and the AT&T/BellSouth merger. Applications for Consent

to the Assignment and/or Transfer of Control of Licenses, Adelphia Communications Corporation, (and

Subsidiaries, Debtors-In-Possession), Assignors, to Time Warner Cable Inc. (Subsidiaries), Assignees; Adelphia

Communications Corporation, (and Subsidiaries, Debtors-In-Possession), Assignors and Transferors, to Comcast

Corporation (Subsidiaries), Assignees and Transferees; Comcast Corporation, Transferor, to Time Warner Inc.,

Transferee; Time Warner Inc., Transferor, to Comcast Corporation, Transferee, MB Docket No. 05-192,

Memorandum Opinion and Order, 21 FCC Rcd 8203, 8299, para. 223 (2006); AT&T Inc. and BellSouth

Corporation Application for Transfer of Control, WC Docket No. 06-74, Memorandum Opinion and Order, 22 FCC

Rcd 5662, 5726-27, para. 119 (2007) (AT&T/BellSouth Merger Order).

These actions resulted in a 2005 consent decree by DSL service provider Madison River requiring it to discontinue

its practice of blocking Voice over Internet Protocol (VoIP) telephone calls, and a 2008 Order against Comcast for

interfering with peer-to-peer file sharing, which the Commission found “contravene[d] . . . federal policy” by

“significantly imped[ing] consumers’ ability to access the content and use the applications of their choice.”

Madison River Communications, File No. EB-05-IH-0110, Order, 20 FCC Rcd 4295 (EB 2005) (Madison River

Order); Formal Complaint of Free Press and Public Knowledge Against Comcast Corporation for Secretly

Degrading Peer-to-Peer Applications; Broadband Industry Practices; Petition of Free Press et al. for Declaratory

Ruling that Degrading an Internet Application Violates the FCC’s Internet Policy Statement and Does Not Meet an

Exception for “Reasonable Network Management,” File No. EB-08-IH-1518, WC Docket No. 07-52, Memorandum

Opinion and Order, 23 FCC Rcd 13028, 13052-54, 13057, paras. 43-44, 49 (2008) (Comcast Order).

See Comcast Corp. v. FCC, 600 F.3d 642, 661 (D.C. Cir. 2010).

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) (2010 Open Internet Order).

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open and dynamic communications networks.

The 2010 Open Internet Order adopted three

fundamental rules governing Internet service providers: (1) no blocking; (2) no unreasonable

discrimination; and (3) transparency.

The no-blocking and no-unreasonable-discrimination rules

prevented broadband service providers from deliberately interfering with consumers’ access to lawful

content, applications, and services, while the transparency rule promoted informed consumer choice by

requiring disclosure by service providers of critical information relating to network management

practices, performance, and terms of service.

The anti-discrimination rule contained in the 2010 Open

Internet Order operated on a case-by-case basis, with the Commission evaluating the conduct of fixed

broadband service providers based on a number of factors, including conformity with industry best

practices, harm to competing services or end users, and impairment of free expression.

7. In order to fit the technical and economic realities of the broadband ecosystem, the

restrictions on blocking and discrimination were made subject to an exception for “reasonable network

management,” allowing service providers the freedom to address legitimate needs such as avoiding

network congestion and combating harmful or illegal content.

Additionally, in order to account for

then-perceived differences between the fixed and mobile broadband markets, the 2010 Open Internet

Order exempted mobile service providers from the anti-discrimination rule, and only barred mobile

providers from blocking “consumers from accessing lawful websites” or “applications that compete with

the provider’s voice or video telephony services.”

8. The 2010 Open Internet Order was based in part on a revised understanding of the

Commission’s Title I authority—as well as a variety of other statutory provisions including Section 706

of the Telecommunications Act of 1996 (Telecommunications Act or 1996 Act)—and was again

challenged before the D.C. Circuit in Verizon v. FCC.

The Verizon court sustained the Commission’s

findings that “absent rules such as those set forth in the [2010] Open Internet Order, broadband providers

represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and

extent of future broadband deployment,”

and concluded that the Commission’s “finding that Internet

openness fosters . . . edge-provider innovation . . . was . . . reasonable and grounded in substantial

evidence” and that the Commission had “more than adequately supported and explained its conclusion

that edge-provider innovation leads to the expansion and improvement of broadband infrastructure.”

The court also accepted the Commission’s reinterpretation of section 706 as an independent grant of legal

authority over broadband services.

The court nonetheless vacated the no-blocking and anti-

discrimination provisions of the 2010 Open Internet Order, concluding that the rules imposed de facto

common carrier status on providers of broadband Internet access service (BIAS) in violation of the

See id. at 17906, para. 1; Protecting and Promoting the Open Internet, GN Docket No. 14-28, Notice of Proposed

Rulemaking, 29 FCC Rcd 5561, 5568, para. 21 (2014).

2010 Open Internet Order, 25 FCC Rcd at 17906, para. 1.

Id.

Id. at 17946, paras. 74-75. The 2010 Open Internet Order also addressed paid prioritization arrangements, and

made clear that “pay for priority” deals and associated network practices were likely to be problematic in a number

of respects. Id. at 17947, para. 76.

Id. at 17951-56, paras. 80-92.

Id. at 17962, 17959, paras. 104, 99.

Verizon v. FCC, 740 F.3d 623, 635-42 (D.C. Cir. 2014) (Verizon).

Id. at 645.

Id. at 644.

Id. at 642. The Court also found that that authority did not allow the Commission to subject information services

or providers of private mobile services to treatment as common carriers. Id. at 650 (citing 47 U.S.C.

§§ 153(51), 332(c)(2)).

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Commission’s classification of those services as information services.

The Verizon court explained that

“broadband providers furnish a service to edge providers, thus undoubtedly functioning as edge

providers’ ‘carriers,’” and held that the 2010 no-blocking and no-unreasonable-discrimination rules

impermissibly “obligated [broadband providers] to act as common carriers.”

9. Following the Verizon decision, the Commission adopted the 2015 Open Internet Order,

adopting carefully-tailored rules to prevent specific practices harmful to Internet openness—blocking,

throttling, and paid prioritization—as well as a strong standard of conduct designed to prevent

deployment of new practices that would harm Internet openness, and enhancements to the transparency

rule.

The Commission concluded that the Internet’s openness promotes innovation, investment,

competition, free expression, and other national broadband goals, and found that the record supported the

proposition that the Internet’s openness enables the virtuous cycle of innovation.

The Commission also

found that broadband providers have both the incentives and ability to harm the open Internet.

10. The Commission grounded its open Internet rules in multiple sources of legal authority,

including both section 706 of the Telecommunications Act and Title II of the Act. As it had done

previously, the Commission exercised its authority to interpret ambiguous language in the Act regarding

the classification of broadband services, and classified broadband Internet access services, including

Internet traffic exchange arrangements (or Internet interconnection arrangements), as telecommunications

services under Title II of the Act.

Concurrently, the Commission exercised its forbearance authority to

forbear from application of 27 provisions of Title II of the Act and over 700 Commission rules and

regulations.

The Commission also reclassified mobile broadband service as a commercial mobile

service.

11. In 2016, the D.C. Circuit upheld the Commission’s 2015 Open Internet Order in full.

The Commission had determined that consumer perception of broadband Internet access service

supported classifying it as a telecommunications service, and the court agreed that those conclusions “find

extensive support in the record” and “justify the Commission’s decision to reclassify broadband as a

telecommunications service.”

Among other things, the court rejected claims that Domain Name System

(DNS) and caching required BIAS to be classified as an information service, instead affirming the

Commission’s view that DNS and caching “facilitate use of the network without altering the fundamental

character of the telecommunications service.”

The court also rejected arguments that the grant of

Id. at 635-42, 656-59.

Id. at 653.

Protecting and Promoting the Open Internet, WC Docket No. 14-28, Report and Order on Remand, Declaratory

Ruling, and Order, 30 FCC Rcd 5601, 5603, para. 4 (2015) (2015 Open Internet Order), pet. for review denied, U.S.

Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016) (USTA), reh’g denied, 855 F.3d 381 (D.C. Cir. 2017), cert.

denied, 139 S. Ct. 453 (2018).

See 2015 Open Internet Order, 30 FCC Rcd at 5625-27, paras. 76-77.

See id. at 5628-43, paras. 78-101.

See id. at 5743-45, paras. 331-35.

See id. at 5603, 5838-64, paras. 5, 493-536.

Id. at 5778-90, paras. 388-408.

See USTA, 825 F.3d 674.

Id. at 697-98; see also id. at 704-705 (“[T]he record contains extensive evidence that [BIAS] consumers perceive

a standalone offering of transmission, separate from the offering of information services like email and cloud

storage.”).

Id. at 705.

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extensive forbearance demonstrated that Title II was a poor fit for BIAS, observing that the FCC merely

“followed an express statutory mandate” in section 10 of the Act “requiring it to ‘forbear from applying

any regulation or any provision’ of the Communications Act if certain criteria are met.”

Likewise, with

respect to the Commission’s classification of mobile BIAS as a commercial mobile service, the court

found that holding “reasonable and supported by the record.”

The court also rejected challenges to the

Commission’s Internet conduct rules, concluding that those rules fell within the Commission’s statutory

authority, provided adequate notice of the conduct that was restricted, and were consistent with the First

Amendment.

12. Despite the D.C. Circuit’s decision upholding the Commission’s 2015 Open Internet

Order, and after more than a decade of promoting and supporting policies to protect the openness of the

Internet through basic conduct “rules of the road,” the Commission reversed course in the 2018 RIF

Order, reclassifying BIAS as an information service and eliminating the open Internet conduct rules.

The Commission asserted that a transparency rule, together with antitrust and consumer protection laws,

would be sufficient to protect consumers’ use of the Internet.

It also included a directive that the RIF

Order “preempt[s] any state or local measures that would effectively impose rules or requirements that

[the Commission has] repealed or decided to refrain imposing . . . or that would impose more stringent

requirements for any aspect of broadband service” addressed in the RIF Order.

The Commission

further concluded that “the directives to the Commission in section 706(a) and (b) of the 1996 Act to

promote deployment of advanced telecommunications capability are better interpreted as hortatory, and

not as grants of regulatory authority,”

departing from the Commission’s prior interpretation of those

provisions.

Upon review in Mozilla v. FCC, the D.C. Circuit identified a number of shortcomings and

limitations in the RIF Order and remanded to the Commission three matters requiring further

consideration.

In several respects, the Mozilla court criticized the RIF Order or highlighted the limits of

its analysis, even while concluding that it survived judicial review on those specific issues (if just barely).

For example, regarding the effect of Title II on investment, the court emphasized that the “Petitioners’

skepticism” of evidence that Title II regulation affected BIAS investment was “echoed in the 2018 [RIF

Order]” itself, which recognized the “quite modest probative value” of studies seeking to demonstrate

that Title II classification depressed network investment.

Ultimately, the court found the dispute among

competing studies “far too sophisticated for us to credibly take sides,” and given the “impenetrability of

the matter,” the court “defer[red] to a reasonable judgment” of the agency.

The D.C. Circuit also found

that the RIF Order’s analysis concerning the ability of antitrust and consumer protection law to obviate

the need for Commission regulatory authority over BIAS was “no model of agency decisionmaking.”

Id. at 706.

Id. at 714.

Id. at 733-44.

Restoring Internet Freedom, WC Docket No. 17-108, Declaratory Ruling, Report and Order, and Order, 33 FCC

Rcd 311 (2017) (RIF Order).

Id. at 450-52, paras. 239-45.

Id. at 427, para. 195.

Id. at 470, para. 268.

In the 2010 Open Internet Order, the Commission had made clear its interpretation of sections 706(a) and (b) of

the 1996 Act as granting regulatory authority. 2010 Open Internet Order, 25 FCC Rcd at 17969-70, para. 120.

Mozilla v. FCC, 940 F.3d 1 (D.C. Cir. 2019) (Mozilla).

Id. at 51, 52.

Id. at 52, 55.

Id. at 59.

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Ultimately, the RIF Order’s “anemic analysis” in that regard “barely survive[d] arbitrary and capricious

review.”

The court also vacated the RIF Order’s blanket preemption of inconsistent state laws,

opening the door for several states to develop their own policies.

In particular, the D.C. Circuit found

that the Commission “fail[ed] to ground its sweeping Preemption Directive . . . in a lawful source of

statutory authority,”

and concluded that “in any area where the Commission lacks the authority to

regulate, it equally lacks the power to preempt state law.”

13. The Mozilla court had substantial concerns about the RIF Order’s failure to adequately

evaluate the potential negative implications of moving away from a Title II regulatory framework for

BIAS on the Commission’s ability to: (1) adequately protect public safety; (2) promote infrastructure

deployment through pole attachment regulation; and (3) ensure continued legal authority to provide

Lifeline Support for BIAS through the universal service fund.

• With respect to public safety, the RIF Order did not address the issue directly, and the court

found “[t]he Commission’s after-the-fact reasoning” inadequate because it “entirely misse[d]

the fact that, whenever public safety is involved, lives are at stake.”

• Regarding pole attachments, “[t]he Commission offered, at best, scattered and unreasoned

observations in response to comments on this issue,” and at times “seemed to whistle past the

graveyard,” rather than adequately grappling with these concerns.

• As to the issue of Lifeline Support, the court found that the RIF Order “backhanded the

issue” with a response that “d[id] not work,” and likewise “prove[d] unable to explain itself

in this litigation either.”

The court therefore remanded to the Commission for further consideration of those issues.

14. Finally, even the Commission’s technological and marketplace evaluation of BIAS was

subject to substantial criticism by a majority of the Mozilla panel. In her concurrence, Judge Millett

explained that she was “deeply concerned that the result is unhinged from the realities of modern

Id. at 59.

Id. at 74.

See, e.g., SB-822, 2017-2018 Reg. Sess. (Cal. 2018) (adopting open Internet-type requirements); H.B. 2282, 65th

Leg., 2018 Reg. Sess. (Wash. 2018) (similar); H.B. 4155, 79th Leg. Assemb., Reg. Sess. (Or. 2018) (requiring

compliance with certain open Internet-type requirements as a condition of contracting with the state government);

S.289, No. 169, 2018 Sess. (Vt. 2018) (similar); LD 1364, 129th Leg., Reg. Sess. (Me. 2019) (similar); Colorado

S.B. 19-078, 71st Leg., Reg. Sess. (Colo. 2019) (requiring compliance with certain open Internet-type requirements

as a condition of state universal service support); NY Gen. Bus. § 399-zzzzz (N.Y. 2021) (restricting BIAS prices

for low income consumers); Mont. Exec. Order No. 3-2018 (2018), https://spb.mt.gov/_docs/Laws-Rules-

EOs/EOs/EO-03-2018-Net-Freedom.pdf (amended by Mont. Exec. Order No. 6-2018 (2018),

https://spb.mt.gov/_docs/Laws-Rules-EOs/EOs/EO-06-2018-Amended-Net-Freedom.pdf) (requiring compliance

with certain open Internet-type requirements as a condition of contracting with the state government); N.J. Exec.

Order No. 9 (2018), https://nj.gov/infobank/eo/056murphy/pdf/EO-9.pdf (similar); N.Y. Exec. Order No. 175

(2018); R.I. Exec. Order No. 18-02 (2018), https://governor.ri.gov/executive-orders/executive-order-18-02 (similar).

Mozilla, 940 F.3d at 74. See also ACA Connects v. Bonta, 24 F.4th 1233,1241-48 (9th Cir. 2022).

Mozilla, 940 F.3d at 59.

Id. at 18.

Id. at 61-62.

Id. at 65-67.

Id. at 69.

Id. at 18.

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broadband service,” but due to Supreme Court precedent treating an information service classification of

BIAS as permissible, she concluded that the Mozilla court was not free to act on its own “to require the

Commission to bring the law into harmony with the realities of the modern broadband marketplace.”

Judge Wilkins likewise expressed agreement with Judge Millett’s views.

15. The Commission responded to the three issues remanded by the D.C. Circuit in Mozilla

in the 2020 RIF Remand Order, refusing to depart from its determinations in the RIF Order.

February 2021, Common Cause, et al.; INCOMPAS; Public Knowledge; and the County of Santa Clara,

et al. each timely filed petitions for reconsideration of the RIF Remand Order.

III. PROPOSED CLASSIFICATION OF BROADBAND INTERNET ACCESS SERVICE

16. Today, we propose to return BIAS to its classification as a telecommunications service

under Title II of the Act. We further propose to reclassify mobile BIAS as a commercial mobile service.

In the time since the RIF Order, propelled by the COVID-19 pandemic, BIAS has become even more

essential to consumers for work, health, education, community, and everyday life. In light of this reality,

we believe that looking anew at the classification of BIAS is necessary and timely given the critical

importance of ensuring the Commission’s authority to fulfill policy objectives and responsibilities to

protect this vital service. Notable among these is enabling the Commission to safeguard the fair and open

Internet though a national regulatory approach. The Commission also has an important statutory

mandate to protect “life and property” by supporting national security and public safety.

We anticipate

that the proper classification of BIAS as a telecommunications service will enhance the Commission’s

ability to advance these and other important interests, including protection of consumers’ privacy and data

security interests and consumers’ ability to access BIAS. Beyond these areas, we believe that

classification of BIAS as a telecommunications service represents the best reading of the text of the Act in

light of the marketplace reality of how the service is offered and perceived today. Below, we seek

comment on our proposed classification framework, and particularly seek comment on its benefits and

burdens. Additionally, we seek comment on the impact of reclassification on small businesses and

entities, including small ISPs.

A. Broadband Internet Access Service is Essential

17. While BIAS connections have long been important to full participation in our society and

economy, we believe the COVID-19 pandemic dramatically changed the importance of the Internet today,

and seek comment on our belief. Not unlike other essential utilities, such as electricity and water, BIAS

connections have proved essential to every aspect of our daily lives, from work, education, and

Id. at 87, 94 (Millett, J., concurring) (citation omitted).

Id. at 94-95 (Wilkins, J., concurring).

Restoring Internet Freedom; Bridging the Digital Divide for Low-Income Consumers; Lifeline and Link Up

Reform and Modernization, WC Docket Nos. 17-108, 17-287, and 11-42, Order on Remand, 35 FCC Rcd 12328,

12329, para. 2 (2020) (RIF Remand Order), pets. for recon. pending, pet. for review pending, Cal. Pub. Utils.

Comm’n v. FCC, No. 21-1016 (D.C. Cir.).

Common Cause, et al., Petition for Reconsideration, WC Docket Nos. 17-108, 17-287, and 11-42 (filed Feb. 8,

2021); INCOMPAS, Petition for Reconsideration, WC Docket Nos. 17-108, 17-287, and 11-42 (filed Feb. 4, 2021);

Public Knowledge, Petition for Reconsideration, WC Docket Nos. 17-108, 17-287, and 11-42 (filed Feb. 8, 2021);

County of Santa Clara, et al., Petition for Reconsideration, WC Docket Nos. 17-108, 17-287, and 11-42 (filed Feb.

8, 2021). On October 19, 2023, the Wireline Competition Bureau sought comment on the Petitions for

Reconsideration. See Wireline Competition Bureau Seeks Comment on Petitions Seeking Reconsideration of the

RIF Remand Order, WC Docket Nos. 17-108, 170287, 11-42, Public Notice, DA 23-996 (rel. Oct. 19, 2023).

See 47 U.S.C. § 151.

Federal Communications Commission FCC 23-83

healthcare, to commerce, community, and free expression.

BIAS connections were so critical during the

pandemic that Congress undertook a number of federal initiatives to improve the accessibility and

affordability of BIAS across America,

finding in the preamble to section 60101 of the bipartisan

Infrastructure Investment and Jobs Act (Infrastructure Act) that “access to affordable, reliable, high-speed

broadband is essential to full participation in modern life in the United States.”

A Pew Research Center

survey highlighted this reality, showing that high speed Internet was essential or important to 90 percent

of U.S. adults during the COVID-19 pandemic.

That finding is backed by the tremendous use during

the pandemic of text messaging applications, voice services, and video conferencing for work, school,

civic engagement, and connecting with family and communities, accessed through consumers’ fixed and

mobile broadband connections.

The increased importance of BIAS connections has persisted post-

pandemic. Compared to last year, nearly 45 percent of respondents to one survey said their Internet usage

had increased, while the average amount of time respondents spent actively using the Internet on a phone,

tablet, or computer was eight hours, excluding passive activities, such as streaming music or video in the

See Janna Anderson et al., Experts Say the ‘New Normal’ in 2025 Will Be Far More Tech-Driven, Presenting

More Big Challenges, Pew Research Center (Feb. 18, 2021),

https://www.pewresearch.org/internet/2021/02/18/experts-say-the-new-normal-in-2025-will-be-far-more-tech-

driven-presenting-more-big-challenges/; Rahul De’ et al., Impact of digital surge during Covid-19 pandemic: A

viewpoint on research and practice, (June 9, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7280123/.

See, e.g., Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, 134 Stat. 281

(2020) (appropriating $200 million to the Commission for telehealth support through the COVID-19 Telehealth

Program); Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, § 903, 134 Stat. 1182, (2020)

(appropriating an additional $249.95 million in funding for the Commission’s COVID-19 Telehealth Program); id.,

§ 904, 134 Stat. 2129 (establishing an Emergency Broadband Connectivity Fund of $3.2 billion for the Commission

to establish the Emergency Broadband Benefit Program to support broadband services and devices in low-income

households during the COVID-19 pandemic); American Rescue Plan Act of 2021, Pub. L. No. 117-2, § 7402, 135

Stat. 4 (2021) (establishing a $7.171 billion Emergency Connectivity Fund to help schools and libraries provide

devices and connectivity to students, school staff, and library patrons during the COVID-19 pandemic);

Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, § 60102, 135 Stat. 429 (2021) (Infrastructure Act)

(establishing grants for broadband deployment programs, as administered by NTIA); id. § 60401 (establishing grants

for middle mile infrastructure); id. § 60502 (providing $14.2 billion to establish the Affordable Connectivity

Program).

47 U.S.C. § 1701(1) and (5) (finding also that the pandemic “has underscored the critical importance of

affordable, high-speed broadband for individuals, families, and communities to be able to work, learn, and connect

remotely while supporting social distancing”). See also Digital Equity Act of 2021, 47 U.S.C. §§ 1722(1)(A)-(B)

and 1722(5) (stating it is the sense of Congress that “a broadband connection and digital literacy are increasingly

critical to how individuals (A) participate in society, economy and civic institutions of the United States;” and “(B)

access health care and essential services, obtain education, and build careers” and “achieving digital equity is a

matter of social and economic justice and is worth pursuing”).

See Colleen McClain et al., The Internet and the Pandemic: 1. How the internet and technology shaped

Americans’ personal experiences amid COVID-19, Pew Research Center (Sept. 1, 2021) (Pew Research Center:

The Internet and the Pandemic), https://www.pewresearch.org/internet/2021/09/01/how-the-internet-and-

technology-shaped-americans-personal-experiences-amid-covid-19/. See also Responding to COVID-19, NCTA,

https://www.ncta.com/covid-19-overview (last visited Sept. 20, 2023) (“77% of adults think high-speed internet

service is more important now than in the past.”); Ericsson, Connected consumers getting through the pandemic

(June 2020), https://www.ericsson.com/4ac68f/assets/local/reports-papers/mobility-report/documents/2020/emr-

june2020-connectedconsumers_article.pdf (“Across all the surveyed markets, 83 percent of respondents claim that

information and communications technology (ICT) has helped them a lot in coping with the impact of the pandemic

in various ways ”).

See Pew Research Center: The Internet and the Pandemic (about eight-in-ten individuals say they connected with

others via video calls during the pandemic, while 71 percent of adults share that text messages or group messaging

apps have helped them at least a little to stay connected and 65 percent said the same about voice calls).

Federal Communications Commission FCC 23-83

background.

OpenVault reports that almost 50 percent of fixed broadband subscribers in the U.S. used

533 gigabytes (GB) or more of bandwidth per month through the fourth quarter of 2022, compared to

about 10 percent of subscribers in 2017.

From year-end 2020 to year-end 2021, monthly data usage per

smartphone subscriber rose to an average of 12.1 GB per subscriber per month—an increase of

approximately 12 percent.

We seek comment on how consumers’ usage and view of BIAS has changed

since 2018, when Title II classification was reversed, and particularly since the onset of the pandemic in

2020. In what ways has the importance of BIAS to consumers stayed the same? How should any

evolution in the importance of BIAS to consumers drive our analysis today? We also seek comment on

how the importance of BIAS is expected to evolve going forward.

18. We tentatively conclude that developments in the importance of the Internet to consumers

demonstrate that consumers perceive and use BIAS as a standalone service that provides

telecommunications. In the 2015 Open Internet Order, the Commission concluded that consumers

perceive BIAS both as a standalone offering and as providing telecommunications.

The D.C. Circuit

found in USTA that these conclusions had “extensive support in the record and together justify the

Commission’s decision to reclassify broadband as a telecommunications service.”

As the D.C. Circuit

recognized, “[e]ven the most limited examination of contemporary broadband usage reveals that

consumers rely on the service primarily to access third-party content.”

We believe that the increased

importance of BIAS to consumers since the onset of the pandemic shows that consumers’ perception and

use of BIAS as a standalone telecommunications service is even more pronounced now than it was in

2015. Indeed, consumers’ use of BIAS today appears to go to the very heart of the purposes for which

consumers have historically utilized “telecommunication services”: to “transmi[t], between or among

points specified by the user, of information of the user’s choosing, without change in the form or content

of the information as sent and received.”

We seek comment on our tentative conclusion and this

analysis.

19. We also believe that the COVID-19 pandemic, and the increased importance of BIAS to

consumers, has spurred ISPs to market BIAS as a telecommunications service that is essential to

accessing separate data-related “add-on” offerings. In the 2015 Open Internet Order, the Commission

concluded that ISPs “market and offer consumers separate services that are best characterized as (1) a

broadband Internet access service that is a telecommunications service; and (2) ‘add-on’ applications,

content, and services that are generally information services” separate from the underlying broadband

service.

The Commission specifically found that ISPs market their BIAS “primarily as a conduit for the

Peter Christiansen, 2022 Internet Usage Survey, HighSpeedInternet.com (Sept. 26, 2022),

https://www.highspeedinternet.com/resources/internet-usage-report.

OpenVault, Broadband Insights Report (OVBI) 4Q22, 11, 15, https://openvault.com/wp-

content/uploads/2023/02/OVBI_4Q22_Report.pdf.

Communications Marketplace Report, GN Docket No. 22-203, 2022 Communications Marketplace Report, FCC

22-103, 62, para. 80 (rel. Dec. 30, 2022) (2022 Communications Marketplace Report). See also Ericsson, Mobility

Report, at 20 (June 2023) (showing mobile data traffic per smartphone in North America was 12.3 GB per month in

2020, was 19.6 GB per month in 2022, and is expected to reach 57.5 GB per month by 2028); CTIA, 2023 Annual

Survey Highlights (July 25, 2023) (showing that there was 73.7 trillion MB of U.S. wireless data traffic in 2022,

representing a 38 percent increase from 20 trillion MB in 2021).

See 2015 Open Internet Order, 30 FCC Rcd at 5765, para. 365.

USTA, 825 F.3d at 697-98.

Id. at 698.

47 U.S.C. § 153(50) (definition of “telecommunications”); id. at § 153(53) (definition of “telecommunications

service”).

See 2015 Open Internet Order, 30 FCC Rcd at 5750, para. 341.

Federal Communications Commission FCC 23-83

transmission of data across the Internet,” with fixed providers distinguishing service offerings on the basis

of transmission speeds, while mobile providers advertise speed, reliability, and coverage of their

networks.

Although the RIF Order contended that “ISPs generally market and provide information

processing capabilities and transmission capabilities together as a single service,” it did not provide

examples.

Examples of ISP marketing today appear even more focused than in 2015 on the capability

of BIAS to transmit information of users’ choosing between Internet endpoints,

rather than its capability

to generate, acquire, store, transform, process, retrieve, utilize, or make available that information.

Such

marketing emphasizes faster speeds aimed at connecting multiple devices,

unlimited data for mobile

service,

and reliable and secure coverage.

At the same time, ISPs appear to advertise data-related

offerings as separate services that can be bundled with or added on to their BIAS services, including

subscriptions to unaffiliated video and music streaming services,

new devices,

access to Wi-Fi

hotspots,

or mobile security apps.

We seek comment generally on how BIAS offerings are advertised

Id. at 5757, para. 354.

RIF Order, 33 FCC Rcd at 335, para. 46.

47 U.S.C. § 153(50) (definition of “telecommunications”); id. at § 153(53) (definition of “telecommunications

service”).

47 U.S.C. § 153(24) (definition of “information service”).

See, e.g., Comcast Xfinity, Explore Speeds and Prices, https://www.xfinity.com/learn/internet-service (last visited

Sept. 20, 2023) (advertising speed tiers and the appropriate number of devices for each tier); Verizon Fios, Get

Verizon Fios, https://www.verizon.com/home/fios [https://perma.cc/6TSW-R663] (last visited Sept. 20, 2023)

(advertising fiber capacity as enabling “more bandwidth for everyone in your home at the same time”); AT&T,

AT&T Fiber® with All-Fi™, https://www.att.com/internet/fiber [https://perma.cc/NFZ9-QK2U] (last visited Sept.

20, 2023) (advertising fiber service as a means to “[c]onnect all your devices”); see also Charter Spectrum, 4

Benefits of Faster Internet Speed at Home, https://www.spectrum.com/resources/internet-wifi/4-benefits-of-faster-

internet-speed-at-home (last visited Sept. 20, 2023) (“As we connect more users and more devices to our home

networks, high-speed Internet is becoming essential to our lives.”).

See, e.g., T-Mobile, Compare our unlimited cell phone plans, https://www.t-mobile.com/cell-phone-plans

[https://perma.cc/FNZ4-QATZ] (last visited Sept. 20, 2023) (advertising all cell phone plans as including “unlimited

5G and 4G LTE data”); USCellular, Unlimited Plans, https://www.uscellular.com/plans/unlimited

[https://perma.cc/L7UJ-EF8D] (last visited Sept. 20, 2023) (offering unlimited data plans) Verizon, Unlimited,

https://www.verizon.com/plans/unlimited [https://perma.cc/L7UJ-EF8D] (last visited Sept. 20, 2023) (same).

See, e.g., AT&T, AT&T Wireless, https://www.att.com/wireless [https://perma.cc/Q643-NMVC] (last visited Sept.

20, 2023) (advertising 5G service as fast, reliable, and secure); T-Mobile, What is 5G?, https://www.t-

mobile.com/5g [https://perma.cc/GP3B-ABZT] (last visited Sept. 20, 2023) (advertising 5G as enabling “greater

bandwidth and faster data transfer,” which “creates opportunity for quicker downloads, smoother streaming, and

more responsive and reliable online experiences, even in spots with high network traffic”); Charter Spectrum,

Internet, https://www.spectrum.com/internet (last visited Sept. 20, 2023) (“Surf, stream and stay connected with

speeds and reliability you can count on, even when your whole family is online.”).

See, e.g., Verizon Wireless, Unlimited, https://www.verizon.com/plans/unlimited [https://perma.cc/GPG8-JLUN]

(last visited Sept. 20, 2023) (advertising Disney Bundle and Apple One with certain unlimited plans); Charter,

Spectrum, https://www.spectrum.com/packages/peacock-premium-trial (last visited Aug. 24, 2023) (offering

Peacock Premium 12-month subscription with an eligible Spectrum Internet package); T-Mobile, Cell Phone Plans,

https://www.t-mobile.com/cell-phone-plans [https://perma.cc/4F96-DHA3] (last visited Sept. 20, 2023) (offering

Netflix subscription with each plan).

See, e.g., USCellular, USCellular, https://www.uscellular.com [https://perma.cc/3KJQ-QQEH] (last visited Sept.

20, 2023) (offering Samsung Galaxy phones with eligible service plan purchase).

See, e.g., Comcast Xfinity, Overview, https://www.xfinity.com/overview (last visited Sept. 20, 2023) (offering

Internet with “access 20+ million secure hotspots”); AT&T, AT&T Wi-Fi, https://www.att.com/wi-fi/

[https://perma.cc/69Z2-B7YE] (last visited Sept. 11, 2023) (advertising “access to our nationwide Wi-Fi network . . .

at no extra charge”); Charter Spectrum, Spectrum Out-of-Home WiFi, https://www.spectrum.com/internet/wifi-

(continued….)

Federal Communications Commission FCC 23-83

today. Have fixed or mobile ISPs changed their marketing or advertising of BIAS since 2018? We seek

evidence and examples of how the BIAS market is shaped today, and particularly how it has changed in

response to developments in consumers’ perception about the essential nature of BIAS connections. How

does the current marketing of BIAS by ISPs bear on our tentative determination that such service is a

telecommunications service? We also seek comment on ways ISPs’ advertising of bundled services and

devices as “add-ons” to their BIAS offerings has evolved as a result of recent changes in the importance

of BIAS to consumers. How do these additional offerings modify the underlying BIAS offered by the

ISP, if at all?

20. We further seek comment on the development of third-party services and devices that

utilize BIAS. We believe that since the 2018 reclassification of BIAS, and particularly as a result of the

COVID-19 pandemic, there is substantial market proliferation of third-party services and devices and that

consumers’ use of these offerings significantly outweigh their use of ISPs’ affiliated offerings. We seek

comment on this observation. How have trends in third-party services and devices impacted consumer

use of BIAS? In what ways have these services and devices driven demand for fixed and mobile BIAS?

B. Reclassification is Necessary to Ensure Internet Openness, Safeguard National

Security, Protect Public Safety, and Support Other Public Interest Goals

21. Given how essential BIAS is to consumers’ daily lives, we believe that our proposed

reclassification of BIAS as a telecommunications service is necessary to unlock tools the Commission

needs to fulfill its objectives and responsibilities to safeguard this vital service. Critical among these is

enabling the Commission to ensure that the Internet is open and fair, including by establishing a national

regulatory approach that would provide consistent protections for consumers and certainty for ISPs. We

also believe that the proposed reclassification would enhance the Commission’s ability to safeguard

national security and protect public safety. Further, we anticipate that returning BIAS to its

telecommunications service classification would provide us with better tools to address policy initiatives

to protect consumers when they use communications services and support their ability to access BIAS,

including through the Commission’s universal service programs. We believe the RIF Order’s

reclassification of BIAS as an information service not only inhibits the Commission’s ability to achieve

these outcomes, but that its policy rationales failed to support that reclassification. Below, we seek

comment on these views and on any other considerations bearing on the grounds for us to return to a

telecommunications service classification of BIAS, including the impact of our proposed reclassification

on small ISPs and other small entities. In seeking comment on potential reclassification, we also

welcome the submission of economic analyses that weigh the costs and benefits of the Commission

taking such action. We also invite commenters to identify whether there are any other regulatory

frameworks administered by the Commission, not discussed below, that might be affected by our

proposed reclassification, and seek comment on how such reclassification would affect those frameworks.

22. Beyond these issues, we invite comment on additional public policy considerations we

should examine in our analysis of BIAS classification. For instance, to what extent are there any

reasonable reliance interests we should consider? We expect any commenters claiming reliance to submit

evidence demonstrating the existence, magnitude, and reasonableness of any alleged reliance interests.

1. Ensuring Internet Openness

23. In light of how essential BIAS connectivity is to consumers following the COVID-19

pandemic, we believe that the open Internet must be protected to ensure consumers can use their BIAS

(Continued from previous page)

access-points (last visited Sept. 11, 2023) (advertising “unlimited use of out-of-home Spectrum WiFi nationwide at

no extra cost”).

RIF Order, 33 FCC Rcd at 335, para. 46. See, e.g., AT&T, Compare our wireless plans,

https://www.att.com/plans/wireless/ [https://perma.cc/Q643-NMVC] (last visited Sept. 20, 2023) (stating that all

unlimited plans include AT&T ActiveArmor mobile security).

Federal Communications Commission FCC 23-83

connections in all the lawful ways they see fit. We tentatively conclude that reclassification of BIAS as a

telecommunications service will allow the Commission to safeguard the open Internet and seek comment

on this tentative conclusion. As an initial manner, following Title II classification, the Commission could

rely on its authority in sections 201 and 202 of the Act to address practices that are unjust, unreasonable,

or unreasonably discriminatory.

Below, we also propose to reinstate rules that prohibit ISPs from

blocking or throttling the information transmitted over their networks or engaging in paid or affiliated

prioritization arrangements.

Additionally, we propose to reinstate a general conduct standard that would

prohibit practices that cause unreasonable interference or unreasonable disadvantage to consumers or

edge providers.

Our proposal would leave the existing transparency requirements undisturbed.

The

proposed rules would establish clear standards for ISPs to maintain Internet openness and would give the

Commission a solid basis on which to take enforcement action against conduct that prevents consumers

from fully accessing all of the critical services available through the Internet. We seek comment on this

analysis. In particular, how would these rules ensure that consumers can continue to use their Internet

connections for healthcare, education, work, commerce, and civic engagement? What would be the

potential impact on these uses if the open Internet is not secured?

24. We further believe reclassification would enable the Commission to establish a

nationwide framework of open Internet rules for ISPs.

In both the 2015 Open Internet Order and the

RIF Order, the Commission expressed concern that potentially inconsistent state laws could increase

burdens for ISPs and hinder the broadband market.

With the goal of avoiding this, the Commission, in

each instance, attempted to establish a framework that would preempt any inconsistent state laws.

However, by reclassifying broadband as a Title I service and eliminating the conduct rules established in

the 2015 Open Internet Order, the RIF Order failed to achieve this goal, because the Mozilla court

vacated the RIF Order’s blanket preemption of inconsistent state laws, concluding that the Commission

“fail[ed] to ground its sweeping Preemption Directive . . . in a lawful source of statutory authority.”

Thus, instead of creating “a uniform set of federal regulations,”

the RIF Order’s hands-off approach to

47 U.S.C. § 201(b); 47 U.S.C. § 202(a).

See infra section V.

See RIF Order, 33 FCC Rcd at 426-27, para. 194; 2015 Open Internet Order, 30 FCC Rcd. at 5804, para. 433

(“[S]hould a state elect to restrict entry into the broadband market through certification requirements or regulate the

rates of broadband Internet access service through tariffs or otherwise, we expect that we would preempt such state

regulations as in conflict with our regulations.”).

See 2015 Open Internet Order, 30 FCC Rcd. at 5804, para. 433 (“The Commission has used preemption to protect

federal interests when a state regulation conflicts with federal rules or policies, and we intend to exercise this

authority to preempt any state regulations which conflict with this comprehensive regulatory scheme or other federal

law.”); RIF Order, 33 FCC Rcd at 427, para. 195.

Mozilla, 940 F.3d at 74. See also ACA Connects v. Bonta, 24 F.4th 1233,1241-48 (9th Cir. 2022). But see N.Y.

State Telecomms. Ass’n v. James, 544 F. Supp. 3d 269, 283 & n.10 (E.D.N.Y. 2021) (granting a preliminary

injunction of enforcement of a New York law restricting the price of BIAS for low income consumers, concluding

among other things that the petitioners were likely to succeed on the merits of their preemption claim, distinguishing

Mozilla on the theory that it only rejected the FCC’s attempted express preemption there but did not foreclose case-

by-case preemption decisions, and distinguishing the district court decision in ACA Connects based on the

understanding that the California law did not restrict BIAS prices), appeal pending, No. 21-1975 (2d Cir. Argued

Jan. 12, 2023).

RIF Order, 33 FCC Rcd at 426-27, para. 194.

Federal Communications Commission FCC 23-83

BIAS has led to the existence of state-by-state open Internet requirements it sought to avoid.

remain concerned that differing state open Internet requirements may be burdensome for ISPs,

particularly small ISPs, thus hindering the broadband market, and at the same time, fail to ensure that all

consumers are protected from conduct harmful to Internet openness. We believe that reclassification will

put our authority to preempt any inconsistent state laws on substantially stronger legal footing,

thereby

enabling the Commission to create a set of open Internet standards that will apply nationwide. We seek

comment on this analysis.

2. Safeguarding National Security and Preserving Public Safety

25. We tentatively conclude that the demonstrated need to address national security and

public safety concerns makes it necessary and timely to revisit the statutory classification of BIAS. The

D.C. Circuit criticized the RIF Order for giving short shrift to the evidence of public safety concerns in

the record before it.

The RIF Remand Order, in declining to reclassify BIAS as a telecommunications

service on that basis, largely dismissed such concerns as speculative.

But developments in recent years

have highlighted national security and public safety concerns arising in connection with the U.S.

communications sector, ranging from the security risks posed by malicious cyber actors targeting network

equipment and infrastructure to the loss of communications capability in emergencies through service

outages. We believe it is now timely for us to reevaluate the classification of BIAS to ensure the

Commission can use all of its capabilities to address threats to national security and public safety.

26. National Security and Law Enforcement. We tentatively conclude that authority under

applicable Title II provisions, reinforced by the Commission’s existing authority, would enhance the

Commission’s efforts to protect the national defense. The Commission’s attention to national security is

a responsibility that underlies its other statutory obligations, as evidenced by Congress’s statement in the

Communications Act that among the reasons it created the Commission was “for the purpose of the

national defense.”

This responsibility was affirmed by Presidential Policy Directive 21, which

described how the FCC could, to the extent permitted by law, exercise its authority and expertise to

identify and address vulnerabilities in the communications sector.

We seek comment generally on how

reclassification would advance the Commission’s fulfillment of its national security responsibilities and

In particular, a number of states adopted laws that conditioned receipt of state funds on compliance with open

Internet principles. See, e.g., SB-822, 2017-2018 Reg. Sess. (Cal. 2018) (adopting open Internet-type requirements);

H.B. 2282, 65

Leg., 2018 Reg. Sess. (Wash. 2018) (similar); H.B. 4155, 79

Leg. Assemb., Reg. Sess. (Or. 2018)

(requiring compliance with certain open Internet-type requirements as a condition of contracting with the state

government); S.289, No. 169, 2018 Sess. (Vt. 2018) (similar); LD 1364, 129

Leg., Reg. Sess. (Me. 2019) (similar);

Colorado S.B. 19-078, 71

Leg., Reg. Sess. (Colo. 2019) (requiring compliance with certain open Internet-type

requirements as a condition of state universal service support); NY Gen. Bus. § 399-zzzzz (N.Y. 2021) (restricting

BIAS prices for low income consumers). Similarly, some states issued executive orders requiring compliance with

certain open Internet-type requirements as a condition of contracting with the state government. See, e.g., Mont.

Exec. Order No. 3-2018 (2018), https://spb.mt.gov/_docs/Laws-Rules-EOs/EOs/EO-03-2018-Net-Freedom.pdf

(amended by Mont. Exec. Order No. 6-2018 (2018), https://spb.mt.gov/_docs/Laws-Rules-EOs/EOs/EO-06-2018-

Amended-Net-Freedom.pdf); N.J. Exec. Order No. 9 (2018); N.Y. Exec. Order No. 175 (2018),

https://nj.gov/infobank/eo/056murphy/pdf/EO-9.pdf; R.I. Exec. Order No. 18-02 (2018),

https://governor.ri.gov/executive-orders/executive-order-18-02.

See infra section F.

Mozilla, 940 F.3d at 59-63.

See, e.g., RIF Remand Order, 35 FCC Rcd at 12356-68, paras. 49-66.

47 U.S.C. § 151 (explaining that among the reasons Congress created the Commission was “for the purpose of the

national defense”).

See The White House, Presidential Policy Directive 21: Critical Infrastructure Security and Resilience (PPD-21)

(Feb. 12, 2013).

Federal Communications Commission FCC 23-83

how it specifically would affect the Commission’s efforts, in coordination with other agencies, and with

ISPs themselves, to protect the nation’s communications networks from entities and equipment and

services that pose threats to national security and law enforcement.

27. We tentatively conclude that our proposed reclassification would enhance the

Commission’s ability to protect the nation’s communications networks from entities that pose threats to

national security and law enforcement pursuant to its authority under section 214 of the Act, and we seek

comment on this tentative conclusion. Under section 214, carriers must be authorized by the Commission

to provide domestic and international telecommunications service in the United States.

Section 214,

however, applies to common carriers,

and thus does not apply to BIAS under its current classification as

an information service, potentially exposing the nation’s communications networks to national security

and law enforcement threats by entities providing BIAS. In the China Telecom Americas Order on

Revocation and Termination, China Unicom Americas Order on Revocation, and Pacific Networks and

ComNet Order on Revocation and Termination, the Commission extensively evaluated national security

and law enforcement considerations raised by existing section 214 authorizations and determined, based

on the record, that the present and future public interest, convenience, and necessity was no longer served

by those carriers’ retention of their section 214 authority.

In particular, the Commission identified

national security and law enforcement concerns with respect to those entities’ access to Internet Points of

Presence (PoPs) (usually located within data centers)

100

and other harms in relation to the services

47 U.S.C. § 214. Section 214 applies to carriers, which the Act defines as a person engaged as a common carrier

for hire, in interstate or foreign communications by wire or radio. Id.; 47 U.S.C. § 153(11). See also Process

Reform for Executive Branch Review of Certain FCC Applications and Petitions Involving Foreign Ownership, IB

Docket No. 16-155, Report and Order, 35 FCC Rcd 10927 (2020) (Executive Branch Process Reform Order)

(adopting rules and procedures that streamline and improve the timeliness and transparency of the process by which

the Commission coordinates with the Executive Branch agencies for assessment of any national security, law

enforcement, foreign policy, or trade policy issues regarding certain applications filed with the Commission);

Process Reform for Executive Branch Review of Certain FCC Applications and Petitions Involving Foreign

Ownership, IB Docket No. 16-155, Erratum, 35 FCC Rcd 13164 (2020).

See 47 U.S.C. § 153(51) (providing that a telecommunications carrier is a common carrier only insofar as it is

providing telecommunications services).

See China Telecom (Americas) Corporation, GN Docket No. 20-109, File Nos. ITC-214-20010613-00346, ITC-

214-20020716-00371, ITC-T/C-20070725-00285, Order on Revocation and Termination, 36 FCC Rcd 15966 (2021)

(China Telecom Americas Order on Revocation and Termination), aff’d China Telecom (Americas) Corp. v. FCC,

57 F.4

256 (D.C. Cir. 2022); China Unicom (Americas) Operations Limited, GN Docket No. 20-110, File Nos.

ITC-214-20020728-00361, ITC-214-20020724-00427, Order on Revocation, 37 FCC Rcd 1480 (2022) (China

Unicom Americas Order on Revocation), argued 9

Cir. Argued Feb. 15, 2023; Pacific Networks Corp. and

ComNet (USA) LLC, GN Docket No. 20-111, File Nos. ITC-214-20090105-00006, ITC-214-20090424-00199,

Order on Revocation and Termination, 37 FCC Rcd 4220 (2022) (Pacific Networks and ComNet Order on

Revocation and Termination), aff’d Pacific Networks Corp. and ComNet (USA) LLC v. FCC, No. 22-1054 (D.C.

Cir. 2023).

100

Today, ISPs provide BIAS through PoPs. See China Telecom Americas Order on Revocation and Termination,

36 FCC Rcd at 16027, paras. 91-92 (“PoPs . . . are physical locations where the network service provider offers or

avails of interconnection or other Internet-related services. To optimize connectivity among providers, the industry

has established ‘Internet Exchange’ or ‘IX’ points, which are physical data centers in which carriers who wish to

participate in public peering can connect to a shared local area network or optionally avail of point-to-point

interconnects for private peering.”); see also Colocation America, What is a Point of Presence (PoP)? (Oct. 11,

2018), https://www.colocationamerica.com/blog/point-of-presence (“These Internet POPs usually hold multiple

servers, routers, and all other interface equipment. These physical locations are usually located within data centers.

ISPs typically have multiple POPs located around in many different areas. Some [ISPs] have thousands of POP

locations usually located at Internet Exchange Points (IXP) and colocation centers. These physical locations allow

people to be interconnected to others around the world.”).

Federal Communications Commission FCC 23-83

provided by those entities pursuant to section 214 authorization.

101

The Commission concluded that

China Telecom Americas’ (CTA) provision of services pursuant to its section 214 authority, “whether

offered individually or as part of a suite of services—combined with CTA’s physical presence in the

United States, CTA’s ultimate ownership and control by the Chinese government, and CTA’s relationship

with its indirect parent [China Telecommunications Corporation], which itself maintains a physical

presence in the United States—present unacceptable national security and law enforcement risks to the

United States,”

102

and it reached similar conclusions in the other proceedings.

103

We believe the same

national security and law enforcement threats identified in those proceedings equally exist with respect to

entities providing BIAS, and that reclassifying BIAS as a telecommunications service would allow the

Commission to use its section 214 authority to address those threats and other threats to our

communications networks. We seek comment on this analysis.

28. We also seek comment on other ways the proposed reclassification would enhance the

Commission’s ability to address national security and law enforcement threats by entities providing

BIAS. Are there other specific national security and law enforcement risks in connection with the

provision of BIAS resulting from the current classification of BIAS as an information service? Have

there been relevant and demonstrable changes with respect to how nation-states have sought to exploit the

technological convergence of broadband and other services that present vulnerabilities affecting the

national defense? We ask commenters to provide detailed comments on any regulatory requirements

designed to address such risks that would newly apply to these entities if the Commission were to

reclassify BIAS as a telecommunications service. For instance, could the Commission prohibit ISPs from

entering into Internet traffic exchange arrangements with certain companies that operate data centers or

other Internet Exchange Points in the U.S.? Would reclassification enable the Committee for the

Assessment of Foreign Participation in the United States Telecommunications Services Sector to review

telecommunications licenses or authorizations meeting appropriate thresholds of foreign ownership or

control for national security and law enforcement concerns? Would reclassification increase law

enforcement agencies’ ability to seek lawful assistance, including identification and disruption of illegal

activity, for investigations involving ISP networks? For mobile BIAS, would reclassification extend the

foreign ownership restrictions for wireless common carriers that the Commission applies under section

310(b) of the Act and its implementing rules?

104

In the absence of reclassification, does the Commission

have other authority that it could use that is sufficient to protect the nation’s communications networks

against ISPs that pose national security and law enforcement threats? If so, we ask commenters to

indicate the statutory authority and how the Commission could use such authority to ensure national

security and law enforcement concerns are addressed.

29. We also seek comment on how reclassification would support the Commission’s efforts

to safeguard the nation’s communications network infrastructure from equipment and services that pose a

101

For instance, in the China Telecom Americas Order on Revocation and Termination, the Commission addressed

concerns that China Telecom (Americas) Corporation’s (CTA) PoPs in the United States “are highly relevant to the

national security and law enforcement risks associated with CTA” and that “CTA’s PoPs in the United States

provide CTA with the capability to misroute traffic and, in so doing, access and/or manipulate that traffic.” See

China Telecom Americas Order on Revocation and Termination, 36 FCC Rcd at 16027, paras. 91-92 (“In cases

where CTA’s PoPs reside in IX points, CTA can potentially access and/or manipulate data where it is on the

preferred path for U.S. customer traffic.”). The Commission also stated that “CTA, like any similarly situated

provider, can have both physical and remote access to its customers’ equipment needed to provide such services,”

and “[t]his physical access to customers’ equipment would allow CTA to monitor and record sensitive information.”

Id. at 16027, para. 93.

102

China Telecom Americas Order on Revocation and Termination, 36 FCC Rcd at 16029, para. 98.

103

See China Unicom Americas Order on Revocation, 37 FCC Rcd at 1565, para. 127; Pacific Networks and

ComNet Order on Revocation and Termination, 37 FCC Rcd at 4134, para. 113.

104

47 U.S.C. § 310; 47 CFR §§ 1.5000-1.5004, 20.5.

Federal Communications Commission FCC 23-83

security threat. Pursuant to its universal service authority in section 254 of the Act, its authority to

regulate equipment in sections 302 and 303 of the Act, and new mandates established by Congress

through the Secure and Trusted Communications Networks Act of 2019, as amended, and the Secure

Equipment Act of 2021 to address communications equipment and service that poses an unacceptable risk

to national security, the Commission has undertaken significant efforts to improve supply chain

security.

105

In particular, the Commission has: prohibited the use of universal service fund (USF) support

to purchase or obtain any equipment or services produced or provided by companies posing a national

security threat;

106

prohibited the use of federal subsidies administered by the Commission and used for

capital expenditures to provide advanced communications service to purchase, rent, lease, or otherwise

obtain such equipment or services;

107

created and maintained a list of communications equipment and

services that pose an unacceptable risk to the national security (“covered equipment and services”);

108

established the Secure and Trusted Communications Networks Reimbursement Program (Reimbursement

Program) to reimburse the costs providers incur to remove, replace, and dispose of covered Huawei and

ZTE equipment and services from their networks;

109

and prohibited the authorization of equipment that

poses a threat and the marketing and importation of such equipment in the United States.

110

We seek

comment on how reclassification may allow the Commission to further these efforts. For instance, would

reclassification give the Commission additional authority to restrict a larger class of entities from using

equipment and services that pose a threat? Additionally, would reclassification give the Commission

105

Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, WC

Docket No. 18-89, Report and Order, Further Notice of Proposed Rulemaking, and Order, 34 FCC Rcd 11423,

11434-35, para. 31 (2019) (Supply Chain First Report and Order); Protecting Against National Security Threats to

the Communications Supply Chain Through FCC Programs, WC Docket No. 18-89, Declaratory Ruling and Second

Further Notice of Proposed Rulemaking, 35 FCC Rcd 7821, 7826-27, para. 20 (2020); Protecting Against National

Security Threats to the Communications Supply Chain Through FCC Programs, WC Docket No. 18-89, Second

Report and Order, 35 FCC Rcd 14284, 14296-98, para. 26-29 (2020) (Supply Chain Second Report and Order);

Protecting Against National Security Threats to the Communications Supply Chain through the Equipment

Authorization Program; Protecting Against National Security Threats to the Communications Supply Chain through

the Competitive Bidding Program; ET Docket No. 21-232, EA Docket No. 21-233, Report and Order, Order, and

Further Notice of Proposed Rulemaking, FCC 22-84 at 19-21, paras. 39-43 (rel. Nov. 25, 2022) (Supply Chain

Equipment Authorization Report and Order); 47 U.S.C. § 254; Secure and Trusted Communications Networks Act

of 2019, Pub. L. No. 116-124, 133 Stat. 158 (2020) (codified as amended at 47 U.S.C. §§ 1601-1609); Secure

Equipment Act of 2021, Pub. L. No. 117-55, 135 Stat. 423 (2021) (codified at 47 U.S.C. § 1601 (Statutory Notes

and Related Subsidiaries)).

106

Supply Chain First Report and Order, 34 FCC Rcd at 11433, para. 26 (stating that this includes prohibitions on

using USF support to maintain, improve, modify, operate, manage, or otherwise support any equipment or services

produced or provided by these companies), aff’d Huawei Technologies USA v. FCC, 2 F.4

421 (5

Cir. 2021); 47

CFR § 54.9.

107

See Supply Chain Second Report and Order, 35 FCC Rcd at 14326; Protecting Against National Security Threats

to the Communications Supply Chain Through FCC Programs, WC Docket No. 18-89, Third Report and Order, 36

FCC Rcd 11958, 11989, para. 75 (2021) (Supply Chain Third Report and Order); 47 CFR §§ 1.50001 (defining

“advanced communications service” as “high-speed, switched, broadband telecommunications capability that

enables users to originate and receive high-quality voice, data, graphics, and video telecommunications using any

technology with connection speeds of at least 200 kbps in either direction”); 1.50004; 54.10-54.11. The

Commission stated that the definition of “provider of advanced communication services” for purposes of the

Reimbursement Program did not limit program eligibility to providers who offer service to end users, and included

intermediate providers that carry traffic for other carriers only and do not originate or terminate traffic. Supply

Chain Third Report and Order, 36 FCC Rcd at 11991, paras. 82-83.

108

See Supply Chain Second Report and Order, 35 FCC Rcd at 14311-25, paras. 57-92; 47 CFR §§ 1.50002,

1.50003.

109

See Supply Chain Second Report and Order, 35 FCC Rcd at 14331, para. 108; 47 CFR § 1.50004.

110

See Supply Chain Equipment Authorization Report and Order, FCC 22-84; 47 CFR §§ 2.901-2.910.

Federal Communications Commission FCC 23-83

more robust authority to require more entities to remove and replace covered Huawei and ZTE

communications equipment and services? Could the Commission prohibit the use of covered equipment

or services in any network infrastructure that is used to route or transmit communications, including data

centers and Internet exchange facilities? Could we use the additional authority under Title II to prohibit

carriers from interconnecting with other carriers who have a PoP within the U.S. and its territories that

use such equipment and services?

111

Are there other ways Title II authority could be used to address

national security threats arising from equipment and services outside the scope of our prior actions? How

does the Commission’s role fit with that of other agencies that help to address potential security threats

from foreign actors to the nation’s communications network and equipment, and how would

enhancements to the Commission’s regulatory authority as a result of reclassification bolster that role?

30. Cybersecurity. We believe that returning BIAS to its telecommunications service

classification would reinforce the Commission’s authority to support its efforts to enhance cybersecurity

in the communications sector, and we seek comment on this tentative conclusion. Among such efforts are

those pursuant to Presidential Policy Directive 21, which tasks the Commission with “identifying

communications sector vulnerabilities and working with industry and other stakeholders to address those

vulnerabilities . . . [and] to increase the security and resilience of critical infrastructure within the

communications sector. . . .”

112

The Commission is actively involved in federal interagency cybersecurity

planning, coordination, and response activities. However, the current classification of BIAS limits the

regulatory and operational actions that the Commission can take to address cyber incidents impacting the

communications sector, as well as other critical infrastructure sectors. For example, the Commission has

limited authority to require providers of non-Title II services (e.g., ISPs) to adopt cybersecurity standards

or performance goals, which inhibits the Commission’s ability to protect U.S. communications services

and infrastructure from cyber-attacks and to ensure that communications devices and equipment do not

pose security risks to other critical infrastructure sectors. While the Commission will continue to work

closely with ISPs to secure their networks, reclassification of BIAS as telecommunications service would

provide the Commission with the authority to act in the absence of voluntary action by ISPs or in cases of

emergency or significant risk. We tentatively conclude that the proposed reclassification could address

this issue by enhancing the Commission’s cybersecurity authority, and we seek comment on this tentative

conclusion.

31. Another initiative is the Commission’s inquiry into vulnerabilities threatening the

security and integrity of the Border Gateway Protocol (BGP), which impacts “the transmission of data

from email, e-commerce, and bank transactions to interconnected Voice-over Internet Protocol (VoIP)

and 9-1-1 calls.”

113

The Commission noted that “BGP’s initial design, which remains widely deployed

today, does not include security features to ensure trust in the information that it is used to exchange,”

which allows a bad network actor to “deliberately falsify BGP reachability information to redirect traffic

to itself or through a specific third-party network, and prevent that traffic from reaching its intended

recipient.”

114

Would reclassification provide the Commission with additional authority to address BGP

vulnerabilities, including, for example, by requiring providers to deploy solutions to address BGP

vulnerabilities in the absence of voluntary action?

111

Cf. CSRIC, Report on Recommended Best Practices to Improve Communications Supply Chain Security (Sept.

2022).

112

The White House, Presidential Policy Directive 21: Critical Infrastructure Security and Resilience (PPD-21)

(Feb. 12, 2013).

113

Secure Internet Routing, PS Docket No. 22-90, Notice of Inquiry, 37 FCC Rcd 3471, 3471, paras. 1-2 (2022)

(Secure Internet Routing NOI). See also Press Release, Dep’t of Just. and Dep’t of Def., Department of Justice and

Department of Defense Support Federal Communications Commission Inquiry into Internet Security (Sept. 14,

2022), https://www.justice.gov/opa/pr/department-justice-and-department-defense-support-federal-communications-

commission-inquiry.

114

Secure Internet Routing NOI, 37 FCC Rcd at 3471, paras. 1-2.

Federal Communications Commission FCC 23-83

32. In what other ways could reclassification bolster the Commission’s authority to address

cybersecurity in the communications sector? For instance, would it strengthen the Commission’s ability

to establish rules mandating that service providers implement cybersecurity practices and risk

management plans? Similarly, would reclassification permit the Commission to consider cybersecurity in

its annual inquiry under section 706 of the Telecommunications Act 1996?

115

For example, could the

Commission determine that only broadband services that meet certain cybersecurity standards constitute

“advanced telecommunications capability”?

116

To what extent would reclassification allow us to address

threats related to the DNS, which enables domain names to resolve to the correct IP addresses, and other

naming protocols? Could the Commission use Title II authority to require ISPs to block IP addresses that

originate malicious software and ransomware? Would reclassification allow the Commission to mandate

the adoption of Communications Security, Reliability, and Interoperability Council (CSRIC) best

practices directed to ISPs and audit or enforce the implementation?

117

Would it likewise enable the

Commission to use Title II authority to require ISPs to implement or certify to their implementation of

network security practices, such as those recommended in Executive Order 14028, the National

Cybersecurity Strategy, or related cybersecurity measures recommended by the Deputy National Security

Advisor, the Office of National Cyber Director, and other government agencies or intergovernmental

agencies, such as the Federal Acquisition Security Council (FASC)?

118

Would reclassification give the

Commission sufficient authority to establish cybersecurity requirements for other components that

facilitate communications between end points, such as Internet exchange facilities and data centers that

route communications and deliver applications? Could the Commission rely on authority in section 218

to require more comprehensive cyber incident reporting?

119

Would reclassification permit the

Commission to rely on a broader range of regulatory tools to ensure network and service reliability and

better support an effective 911 and emergency preparedness efforts?

33. Public Safety. We next tentatively conclude that reclassifying BIAS as a

telecommunications service would enable the Commission to advance several public safety initiatives,

and we seek comment on this tentative conclusion. As the Commission recognized in the RIF Remand

Order, “[a]dvancing public safety is one of our fundamental obligations.”

120

Indeed, the Commission is

“required to consider public safety by . . . its enabling act.”

121

The Mozilla court explained that when

115

47 U.S.C. § 1302(b) (requiring the Commission, on an annual basis, to initiate notices of inquiry to “determine

whether advanced telecommunications capability is being deployed to all Americans in a reasonable and timely

fashion”).

116

47 U.S.C. § 1302(d)(1) (“The term ‘advanced telecommunications capability’ is defined, without regard to any

transmission media or technology, as high-speed, switched, broadband telecommunications capability that enables

users to originate and receive high-quality voice, data, graphics, and video telecommunications using any

technology.”).

117

See, e.g., CSRIC, Recommendations to Mitigate Security Risks for Diameter Networks (March 2018); CSRIC,

Legacy Systems Risk Reductions (March 2017).

118

Exec. Order No. 14028, Executive Order on Improving the Nation’s Cybersecurity (May 21, 2021); The White

House, Nat’l Cybersecurity Strategy (March 2023), https://www.whitehouse.gov/wp-

content/uploads/2023/03/National-Cybersecurity-Strategy-2023.pdf; Letter from Anne Neuberger, Deputy Assistant

to the President and Deputy Nat’l Sec. Advisor for Cyber and Emerging Tech., to Corp. Execs. and Bus. Leaders,

The White House (June 2, 2021), https://www.whitehouse.gov/wp-content/uploads/2021/06/Memo-What-We-Urge-

You-To-Do-To-Protect-Against-The-Threat-of-Ransomware.pdf.

119

47 U.S.C. § 218.

120

RIF Remand Order, 35 FCC Rcd at 12336, para. 21.

121

Mozilla, 940 F.3d at 59-60 (quoting Nuvio Corp. v. FCC, 473 F.3d 302, 307 (D.C. Cir. 2006)). See also 47

U.S.C. § 151 (explaining that, among other things, Congress created the Commission “for the purpose of promoting

safety of life and property through the use of wire and radio communications”); 47 U.S.C. § 154(n) (directing the

(continued….)

Federal Communications Commission FCC 23-83

“‘Congress has given an agency the responsibility to regulate a market such as the telecommunications

industry that it has repeatedly deemed important to protecting public safety,’ then the agency’s decisions

‘must take into account its duty to protect the public.’”

122

We believe that the Commission’s

responsibility to address public safety is becoming increasingly important as the severity and frequency of

natural disasters are on the rise.

123

We tentatively conclude that reclassification would enhance the

Commission’s jurisdiction over ISPs, which it could use in combination with other statutory authority to

ensure BIAS meets the needs of public safety entities and individuals when they use those services for

public safety purposes. We seek comment on this tentative conclusion and analysis below. We note that

the RIF Order concluded that Title I classification advances, and does not harm, public safety, primarily

based on its overarching policy rationales for reversing Title II classification.

124

We seek comment on the

RIF Order’s policy rationales and framework for protecting against harms elsewhere in this Notice,

125

and

we invite commenters to address whether those rationales sufficiently advance public safety. In

particular, we invite comment on whether the Commission’s ability to adopt ex ante regulations would

provide better public safety protections than an ex post enforcement framework.

34. We seek comment on how our proposed reclassification would enable the Commission to

support public safety officials’ use of BIAS for public safety purposes. As a general matter, broadband

services play an important role in how public safety officials communicate with each other and how they

deliver and receive information from the public. Although much of the communications between public

safety entities and first responders take advantage of enterprise-level dedicated public safety broadband

services, they often rely on commercial broadband services to communicate during emergency

situations.

126

Increasingly, public safety entities rely on retail BIAS to access various databases, share

data with emergency responders, and stream video into 911 and emergency operations centers.

127

also are aware that public safety officials often use services accessible over-the-top (OTT) of broadband

connections, such as social media, to communicate important and timely information to the public and to

gain valuable information from the public and build on-the-ground situational awareness.

128

We seek

comment on the extent to which public safety officials rely on BIAS for public safety purposes and on our

tentative conclusion that reclassification would give us additional jurisdiction to advance the existing uses

of BIAS by these officials.

129

(Continued from previous page)

Commission to take steps to promote the “maximum effectiveness from the use of radio and wire communications in

connection with safety of life and property”).

122

Mozilla, 940 F.3d at 60.

123

See, e.g., Adam B. Smith, 2022 U.S. billion-dollar weather and climate disasters in historical context,

Climate.gov (Jan. 10, 2023), https://www.climate.gov/news-features/blogs/beyond-data/2022-us-billion-dollar-

weather-and-climate-disasters-historical; Reuters, Fact Check: Drop in climate-related disaster deaths not evidence

against climate ‘emergency’ (September 19, 2023), https://www.reuters.com/fact-check/drop-climate-related-

disaster-deaths-not-evidence-against-climate-emergency-2023-09-19/ (“Weather-related disasters have become

more frequent, intense, and costly in recent decades as documented by many different sources and analyses.”).

124

RIF Remand Order, 35 FCC Rcd at 12336, 12344-68, paras. 20, 32-66.

125

See infra sections 6 and V.A.6.

126

RIF Remand Order, 35 FCC Rcd at 12341, para. 27.

127

Id.

128

See, e.g., Congressional Research Service, Social Media for Emergencies and Disasters: Overview and Policy

Considerations, 1-2 (June 15, 2016); Ready.gov, Social Media Preparedness Toolkits,

https://www.ready.gov/toolkits (last updated Sept. 13, 2022); NIST, Spotlight: Gathering Intel From Social Media

for Emergency Response (June 30, 2022), https://www.nist.gov/news-events/news/2022/06/spotlight-gathering-intel-

social-media-emergency-response; RIF Remand Order, 35 FCC Rcd at 12342-43, para. 29.

129

See infra section V.A.2.

Federal Communications Commission FCC 23-83

35. We also seek comment on how reclassification could further other public safety

initiatives. For instance, while the Commission has taken important steps to improve the effectiveness of

Wireless Emergency Alerts (WEAs),

130

would classification of BIAS as a telecommunications service

enable the Commission to make the nation’s alert and warning capabilities more effective and resilient by,

for instance, requiring ISPs to transmit emergency alerts to their subscribers? More recently, the

Commission modernized its priority services rules to authorize service providers to offer, on a voluntary

basis, priority treatment of data, video, and IP-based voice services for public safety personnel and first

responders, including by removing outdated requirements that may impede the use of IP-based

technologies.

131

Would reclassification allow the Commission to go a step further by requiring service

providers to offer prioritized routing for all IP-based services and prioritized restoration for all network

infrastructure? Could the Commission require ISPs to participate in Telecommunications Service Priority

(TSP), Government Emergency Telecommunications Service (GETS), and Wireless Priority Service

(WPS)? How, if at all, would reclassification allow the Commission to expand the applicability, and

therefore the public safety benefits, of the Communications Assistance for Law Enforcement Act

(CALEA) requirements?

132

36. We tentatively conclude that BIAS also plays an increasingly important role in allowing

the public to communicate with first responders during emergency situations and seek comment on this

tentative conclusion.

133

In the RIF Remand Order, the Commission noted that retail broadband services

are used to translate communications with 911 callers and patients in the field and to deliver critical

information about 911 callers that is not delivered through the traditional 911 network.

134

Are there other

ways in which BIAS can or does supplement traditional 911 communications? The Commission has

undertaken various efforts in recent years to improve how the public reaches and shares information with

emergency service providers.

135

What effect, if any, would Title II classification of BIAS have on these

130

Wireless Emergency Alerts; Amendments to Part 11 of the Commission’s Rules Regarding the Emergency Alert

System, PS Docket Nos. 15-91 and 15-94, Report and Order and Further Notice of Proposed Rulemaking, 31 FCC

Rcd 11112 (2016); Wireless Emergency Alerts; Amendments to Part 11 of the Commission’s Rules Regarding the

Emergency Alert System, PS Docket Nos. 15-91 and 15-94, Second Report and Order and Second Order on

Reconsideration, 33 FCC Rcd 1320 (2018); Amendments to Part 11 of the Commission’s Rules Regarding the

Emergency Alert System; Wireless Emergency Alerts, PS Docket Nos. 15-94 and 15-91, Report and Order and

Further Notice of Proposed Rulemaking, 36 FCC Rcd 10694 (2021); Wireless Emergency Alerts; Amendments to

Part 11 of the Commission’s Rules Regarding the Emergency Alert System, PS Docket Nos. 15-91 and 15-94,

Further Notice of Proposed Rulemaking, 37 FCC Rcd 5408 (2022); Amendments to Part 11 of the Commission’s

Rules Regarding the Emergency Alert System; Wireless Emergency Alerts; 2022 Cybersecurity NPRM; Wireless

Emergency Alerts; Amendments to Part 11 of the Commission’s Rules Regarding the Emergency Alert System, PS

Docket Nos. 15-91 and 15-94, Further Notice of Proposed Rulemaking, FCC 23-30 (rel. Apr. 21, 2023).

131

See Review of Rules and Requirements For Priority Services; National Security Emergency Preparedness

Telecommunications Service Priority System; NTIA Petition for Rulemaking to Revise the Rules for Wireless

Priority Services; NTIA Petition for Rulemaking to Revise the Rules for the Telecommunications Service Priority

System, PS Docket No. 20-187, Report and Order, 37 FCC Rcd 6798 (2022).

132

See Communications Assistance for Law Enforcement Act and Broadband Access and Services, ET Docket No.

04-295, RM-10865, First Report and Order and Further Notice of Proposed Rulemaking, 20 FCC Rcd 14989 (2005).

133

RIF Remand Order, 35 FCC Rcd at 12342, para. 29.

134

Id. at 12341, para. 27.

135

Implementing Kari’s Law and Section 506 of RAY BAUM’s Act et al., PS Docket Nos. 18-261 and 17-239, GN

Docket No. 11-117, Report and Order, 34 FCC Rcd 6607, 6612-13, 6655-91, paras. 14-16, 137-220 (2019); see also

Wireless E911 Location Accuracy Requirements, PS Docket No. 07-114, Fifth Report and Order and First Further

Notice of Proposed Rulemaking, 34 FCC Rcd 11592 (2019); Wireless E911 Location Accuracy Requirements, PS

Docket No. 07-114, Sixth Report and Order and Order on Reconsideration, 35 FCC Rcd 7752 (2020); Location-

Based Routing for Wireless 911 Calls, PS Docket No. 18-64, Notice of Proposed Rulemaking, FCC 22-96 (rel. Dec.

22, 2022); Implementation of the National Suicide Hotline Improvement Act of 2018, WC Docket No. 18-336,

(continued….)

Federal Communications Commission FCC 23-83

and future efforts? Would reclassification enhance the Commission’s jurisdiction to improve the flow of

voice communications, photos, videos, text messages, real-time text (RTT), or any other type of

communication from the public to emergency service providers through Next Generation 911

136

or over

the use of Wi-Fi calling

137

to reach emergency service providers? If so, how? We also believe BIAS is

critical when used by individuals with disabilities to communicate with public safety services,

138

and the

Commission has taken several steps to improve access to IP-enabled 911 communications for people with

disabilities.

139

How will reclassification fortify our existing jurisdiction to ensure these communications

are not interrupted or degraded? To what extent does or will BIAS support alternatives to 911

communications, and will reclassification help to ensure that BIAS-based emergency communications

meet certain reliability and security standards? Would reclassification of BIAS enhance the access to,

availability of, and service quality for IP-based communication services used by people with disabilities

in emergencies, including the IP-based forms of telecommunications relay services (TRS)?

37. BIAS is also critical for allowing the public to easily and efficiently access public safety

resources and information.

140

In particular, members of the public often rely on BIAS during emergencies

to enable them to find and receive potentially life-saving information.

141

As the Commission stated in the

RIF Remand Order, “consumers regularly use their mobile devices and broadband connections ‘to access

broadly available information regarding threatening weather, shelter-in-place mandates, ongoing active-

shooter scenarios, and other matters essential to public safety.’”

142

The COVID-19 pandemic, severe

(Continued from previous page)

Report and Order, 35 FCC Rcd 7373, 7375-76, para. 4 (2020); Implementation of the National Suicide Hotline

Improvement Act of 2018, WC Docket No. 18-336, Second Report and Order, 36 FCC Rcd 16901 (2021).

136

See Facilitating the Deployment of Text-to-911 and Other Next Generation 911 Applications; Framework for

Next Generation 911 Deployment, PS Docket Nos. 11-153 and 10-255, Second Report and Order and Third Further

Notice of Proposed Rulemaking, 29 FCC Rcd 9846, 9879-80, paras. 76-78 (2014) (Text-to-911 Second Report and

Order); 911.gov, Next Generation 911, https://www.911.gov/issues/ng911/ (last updated June 9, 2023).

137

FCC, Study on Emergency 911 Access to Wi-Fi Access Points and Spectrum for Unlicensed Devices when

Mobile Service is Unavailable (2021), https://www.fcc.gov/document/report-congress-911-over-wi-fi.

138

For example, the Department of Health and Human Services recently announced that the 988 Suicide & Crisis

Lifeline will provide direct video calling ASL services for people who are deaf and hard of hearing, as part of

ongoing efforts to expand accessibility to behavioral health care for underserved communities. This will allow an

ASL user in crisis to communicate directly with a counselor in ASL. See 988 Suicide & Crisis Lifeline Adds

American Sign Language Services for Deaf and Hard of Hearing Callers (Sept. 8, 2023),

https://www.samhsa.gov/newsroom/press-announcements/20230908/988-suicide-crisis-lifeline-adds-american-sign-

language-services-deaf-hard-of-hearing-callers.

139

Transition from TTY to Real-Time Text Technology; Petition for Petition for Rulemaking to Update the

Commission’s Rules for Access to Support the Transition from TTY to Real-Time Text Technology, and Petition for

Waiver of Rules Requiring Support of TTY Technology, Report and Order and Further Notice of Proposed

Rulemaking, 31 FCC Rcd 13568 (2016); Text-to-911 Second Report and Order, 29 FCC Rcd at 9852-55, paras. 13-

17; see also New and Emerging Technologies 911 Improvement Act of 2008, Pub. L. No. 110-283, Preamble, § 102,

122 Stat. 2620 (2008) (stating the congressional goal to “promote and enhance public safety by facilitating the rapid

deployment of IP-enabled 911 and E-911 services, encourage the Nation’s transition to a national IP-enabled

emergency network, and improve the 911 and E-911 access to those with disabilities”); Twenty-First Century

Communications and Video Accessibility Act of 2010, Pub. L. No. 111-260, 124 Stat. 2751 § 106(g) (2010)

(codified at 47 U.S.C. § 615c(g)) (granting the Commission authority to promulgate “regulations, technical

standards, protocols, and procedures . . . necessary to achieve reliable, interoperable communication that ensures

access by individuals with disabilities to an Internet protocol-enabled emergency network, where achievable and

technically feasible”).

140

RIF Remand Order, 35 FCC Rcd at 12342, para. 29.

141

Id.

142

Id. (quoting CTIA Comments at 21).

Federal Communications Commission FCC 23-83

natural disasters, and other incidents have demonstrated the importance of the public being able to access

public safety information using their BIAS connections. We seek comment on how reclassification

would allow the Commission to ensure that the public can access life-saving public safety resources and

information using BIAS.

38. Furthermore, BIAS is important for public safety communications that occur outside of

emergencies. As the Commission observed in the RIF Remand Order:

[A]s the COVID-19 pandemic has demonstrated, [] many Americans rely[] on

telemedicine over mass-market broadband services for “routine health care, triage, and

basic health advice.” . . . 5G networks’ ability to transmit massive amounts of data in

real time will also help enable new applications that will allow more advanced

communications between the public and health care officials, such as allowing health

care professionals, through ubiquitous wireless sensors, to remotely monitor patients’

health and transmit data to their doctors before problems become emergencies, and to

develop connected ambulance services for faster patient transport.

143

BIAS connections are also playing a more important role in home safety and security as consumers

increasingly purchase home security and monitoring systems that use connected devices to monitor, deter,

and address theft, breaking and entering, and other home threats

144

and BIAS connections are increasingly

important for in-home monitoring of individuals who are elderly or disabled.

145

We seek comment on the

impact that reclassification may have on these and other public safety applications that rely on BIAS.

39. Network Resiliency and Reliability. We tentatively conclude that reclassifying BIAS as a

telecommunications service would enhance the Commission’s ability to ensure the nation’s

communications networks are resilient and reliable, and we seek comment on this tentative conclusion.

For instance, under the Commission’s Network Outage Reporting System (NORS), qualifying

communications providers are required to report to the Commission network outages that satisfy certain

criteria,

146

and the Commission uses this information to advance network resiliency and reliability.

Because this reporting requirement has generally been limited to outages affecting voice services,

147

the

Commission has historically lacked reliable outage information for today’s modern, essential broadband

networks, which inhibits the Commission from fully ensuring the resiliency and reliability of those

networks. Would reclassification support the Commission’s ability to expand the scope of NORS to

require ISPs to submit outage reports in response to service incidents that cause outages or the

degradation of communications services, such as cybersecurity breaches, wire cuts, infrastructure

damages from natural disaster, and operator errors

148

or misconfigurations?

149

Under rules implemented

143

Id. at 12343, para. 30.

144

The Worldwide Smart Home Security Industry is Projected to Reach $4.6 Billion by 2027 –

ResearchAndMarkets.com, BusinessWire (June 20, 2022),

https://www.businesswire.com/news/home/20220620005381/en/The-Worldwide-Smart-Home-Security-Industry-is-

Projected-to-Reach-4.6-Billion-by-2027---ResearchAndMarkets.com (“The Global Smart Home Security Market is

estimated to be USD 1.84 Bn in 2022 and is projected to reach USD 4.61 Bn by 2027, growing at a CAGR of

20.14%.”).

145

Christina Ianzito, Remote Monitoring Systems Can Give Caregivers Peace of Mind, AARP (Jan. 10, 2020),

https://www.aarp.org/caregiving/home-care/info-2020/ces-caregiving-products.html; Rachel Cericola, These Smart

Home Devices Can Enhance Independence for People With Disabilities and Mobility Needs, Wirecutter (April 29,

2022), https://www.nytimes.com/wirecutter/reviews/best-assistive-smart-home-technology-for-disabled/.

146

See 47 CFR § 4.9.

147

See id.

148

Operator errors could include, for example, incidents that reflect or resemble internet routing hijacks using the

Border Gateway Protocol. See, e.g., OECD, Routing Security: BGP Incidents, Mitigation Techniques and Policy

(continued….)

Federal Communications Commission FCC 23-83

in 2022, Federal, State, Tribal and Territorial public safety agencies are eligible to obtain direct read-only

access to outage information filed in NORS and the Disaster Information Reporting System (DIRS) for

their jurisdictions.

150

Would reclassification and enhanced NORS reporting afford public safety officials

greater transparency during outages and disasters to assess the operational status of networks for

dissemination of emergency information or to assess where support is needed? Would it support

reliability efforts for calls and texts to 911 and the 988 Suicide and Crisis Lifeline?

151

How, if at all,

would reclassification allow us to further our goal to improve the reliability of wireless networks?

152

Would broadband reclassification give the Commission additional authority to facilitate the use of Wi-Fi

calling during emergencies or network outages,

153

and if so, to what extent could the Commission apply

reliability standards for Wi-Fi calling? Are there other ways that reclassification of BIAS would help us

improve network resiliency and reliability, such as requirements for network upgrades and changes, rules

relating to recovery from network outages, and improving our incident investigation and enforcement

authority? What impact would any such actions have on ISPs, particularly small ISPs?

3. Protecting Consumers’ Privacy and Data Security

40. Since before the adoption of the 1996 Act, the Commission has consistently protected

consumers from activities that undermine their ability to use communications services freely, fairly, and

free from abuse by bad actors. As the communications industry has changed and the tactics used by bad

actors have evolved, so too have the Commission’s efforts. The current information service classification

of BIAS, however, appears to inhibit the Commission’s ability to fully ensure that consumers are

protected from harmful conduct when they use communications services today and able to utilize these

services in a fair and secure manner. We believe that classification of BIAS as a telecommunications

service could support the Commission’s efforts to protect consumers’ privacy and data security and

relieve them from unlawful robocalls and robotexts. We seek comment on this view.

(Continued from previous page)

Actions at 12-13 (2022), https://www.oecd-ilibrary.org/science-and-technology/routing-security_40be69c8-

en;jsessionid=CtmViajgbUFWAaAC8wqNlZWSQuFGFXlhzKMQ-eGU.ip-10-240-5-167.

149

Resilient Networks; Amendments to Part 4 of the Commission’s Rules Concerning Disruptions to

Communications; New Part 4 of the Commission’s Rules Concerning Disruptions to Communications, PS Docket

Nos. 21-346 and 15-80, ET Docket No. 04-35, Notice of Proposed Rulemaking, 36 FCC Rcd 14802, 148014, para.

30 (2021).

150

Amendments to Part 4 of the Commission’s Rules Concerning Disruptions to Communications, PS Docket No.

15-80, Second Report and Order, 36 FCC Rcd 6136 (2022).

151

See Improving 911 Reliability; Reliability and Continuity of Communications Networks, Including Broadband

Technologies, PS Docket Nos. 13-75 and 11-60, Report and Order, 28 FCC Rcd 17476, 17488-91, paras. 36-43

(2013); Amendments to Part 4 of the Commission’s Rules Concerning Disruptions to Communications Improving

911 Reliability New Part 4 of Commission’s Rules Concerning Disruptions to Communications, PS Docket Nos. 15-

80 and 13-75, ET Docket No. 04-35, Second Report and Order, FCC 22-88 (rel. Nov. 18, 2022) (adopting rules

regarding network outage notifications for 911 special facilities); Ensuring the Reliability and Resiliency of the 988

Suicide & Crisis Lifeline; Amendments to Part 4 of the Commission’s Rules Concerning Disruptions to

Communications; Implementation of the National Suicide Hotline Improvement Act of 2018, PS Docket Nos. 23-5

and 15-80, WC Docket No. 18-336, Notice of Proposed Rulemaking, FCC 23-7 (rel. Jan. 27, 2023) (proposing

reliability rules for the 988 Suicide and Crisis Lifeline); Shenandoah Telecommunications Company, File No.: EB-

SED-22-00034239, Order, DA 23-337 (EB Apr. 24, 2023) (settling an investigation related to a 911 outage).

152

See Resilient Networks; Amendments to Part 4 of the Commission’s Rules Concerning Disruptions to

Communications; New Part 4 of the Commission’s Rules Concerning Disruptions to Communications, PS Docket

Nos. 21-346 and 15-80; ET Docket No. 04-35, Report and Order and Further Notice of Proposed Rulemaking, FCC

22-50 (rel. July 6, 2022) (discussing measures to improve the reliability and resiliency of mobile wireless networks).

153

See CSRIC, Report on 911 Service Over Wi-Fi (March 2023).

Federal Communications Commission FCC 23-83

41. Privacy and Data Protection. We tentatively conclude that reclassification of BIAS as a

telecommunications service would support the Commission’s efforts to safeguard consumers’ privacy and

data security, and we seek comment on this tentative conclusion. Highlighting the Commission’s

important role in this area, earlier this year, Chairwoman Rosenworcel established the FCC Privacy and

Data Protection Task Force to coordinate the agency’s efforts to protect against and respond to consumer

privacy infringements and data breaches by communications providers.

154

The Commission’s efforts will

rely on, among other things, its authority under section 222 of the Act. That provision governs

telecommunications carriers’ protection and use of information obtained from their customers or other

carriers, and calibrates the protection of such information based on its sensitivity. Congress imposed a

duty on every telecommunications carrier to protect the confidentiality of its customers’ proprietary

information,

155

according the category of customer proprietary network information (CPNI) the greatest

level of protection.

156

42. When the Commission classified BIAS as a telecommunications service in the 2015

Open Internet Order, it declined to forbear from applying section 222 of the Act, citing the need to

protect consumers’ privacy regardless of whether they communicate via broadband or telephone

services.

157

The RIF Order eliminated these statutory protections for broadband customers and

surrendered the Commission’s authority over ISPs’ privacy and data protection practices.

158

We believe

that ISPs are situated to collect vast swaths of information about their customers, including personal

information, financial information, and information regarding subscriber online activity. We further

believe that consumers currently may not fully comprehend—and therefore may not be able to

meaningfully consent to—ISPs’ collection, processing, and disclosure of customer information, including

potentially through the use of artificial intelligence models. We are also concerned that, absent statutory

and regulatory requirements to do so, ISPs may not adopt adequate administrative, technical, physical,

and procedural safeguards to protect their customers’ data. Indeed, ISPs appear to continue to be

attractive targets to hackers and other bad actors, putting BIAS customer data at significant risk of

compromise. We seek comment on these views.

43. Based on the foregoing, we once again propose herein not to forbear from section 222.

159

Returning BIAS to its telecommunications service classification would bring ISPs back under the section

222 privacy and data security framework, and therefore restore those protections for consumers.

Additionally, classifying BIAS as a telecommunications service could support a consistent privacy and

data security framework for voice and data services, which we believe consumers often subscribe to from

one provider in a bundle and perceive to be part of the same service, particularly for mobile services. We

seek comment on this proposed analysis.

44. We further believe that, in addition to protecting consumers, reclassifying BIAS as a

telecommunications service and declining to forbear from section 222 would protect information

concerning entities that interact with ISPs. Section 222 places an obligation on telecommunications

carriers to protect the confidentiality of the proprietary information of and relating to other

telecommunication carriers (including resellers), equipment manufacturers, and business customers.

160

154

Press Release, FCC, Chairwoman Rosenworcel Launches New ‘Privacy and Data Protection Task Force’ (June

14, 2023), https://docs.fcc.gov/public/attachments/DOC-394384A1.pdf; see also FCC, Privacy and Data Protection

Task Force, https://www.fcc.gov/privacy-and-data-protection-task-force (last updated July 11, 2023).

155

47 U.S.C. § 222(a).

156

47 U.S.C. § 222(e).

157

2015 Open Internet Order, 30 FCC Rcd at 5820-24, paras. 462-67.

158

RIF Order, 33 FCC Rcd at 419-23, paras. 181-84.

159

See infra section IV.B.

160

47 U.S.C. § 222(a).

Federal Communications Commission FCC 23-83

We seek comment on how reclassification of BIAS will affect telecommunications carriers and

equipment manufacturers who interact with ISPs, as well as the customers those entities serve, such as

content creators and edge providers. Would these protections also have national security benefits by, for

example, deterring ISPs from contracting with foreign companies that may pose a national security threat

or are owned by, controlled by, or subject to the jurisdiction or direction of foreign adversaries? Would

these section 222 requirements create a meaningful burden on ISPs, especially small ISPs?

45. Robocalls and Robotexts. We seek comment on whether reclassification can serve to

enhance the Commission’s authority to support consumer privacy by combating illegal robocalls and

robotexts. In recent years, the Commission has undertaken extensive efforts to address these invasive

communications, including by establishing rules for call authentication, robocall mitigation, and call

blocking; expanding requirements and restrictions to robotexts; and taking enforcement action against

providers who originate and transport these communications.

161

Yet bad actors continue to evolve their

techniques to find new ways to interrupt consumers and perpetuate fraud. We note that many illegal

robocalls are transmitted via VoIP networks and many illegal robotexts are transmitted by OTT

messaging services (e.g., iMessage, WhatsApp, and Signal). We seek comment on the extent to which

Title II classification would help the Commission in its efforts to combat these practices. Would Title II

classification grant the Commission oversight to reach a larger class of entities, particularly for messages

and calls delivered via broadband networks? For example, to the extent robotext scams include links to

spoofed websites designed to defraud consumers, would reclassification allow us to require that ISPs

block traffic to IP addresses associated with those websites? Would reclassification allow the

Commission to apply new requirements and restrictions beyond what it can achieve under the sources of

authority the Commission has relied on to date for its robocall and robotext actions? If so, how? Are

there other ways in which reclassification would help the Commission combat illegal robocalls and

robotexts? How would this affect ISPs, especially small ISPs?

4. Supporting Access to Broadband Internet Access Service

46. From the Commission’s inception, it has played a critical role in facilitating the

proliferation of communications networks and ensuring that consumers have access to the services these

networks provide. While these efforts are crucial to the Commission’s mission, we believe that the

information service classification of BIAS has limited the Commission’s efforts to achieve these goals for

the communications service that has become fundamental to consumers’ everyday lives. Classifying

BIAS as a telecommunications service will enable the Commission to better support the deployment of

wireline and wireless infrastructure, advance universal service, and increase the accessibility of

communications networks. We seek comment on this tentative conclusion. We also seek comment on

whether, and how, we could leverage our proposed reclassification in other proceedings to further

encourage access to BIAS by all consumers.

47. Wireline and Wireless Infrastructure. We seek comment on the public policy impact of

our proposed reclassification of BIAS on the Commission’s goals to support investment in and

deployment of wireline and wireless infrastructure. For example, section 224(b) of the Act grants the

Commission clear authority to regulate the rates, terms, and conditions of pole attachments by a cable

161

See FCC, Robocall Response Team: Combating Scam Robocalls & Robotexts, https://www.fcc.gov/spoofed-

robocalls (last updated Aug. 18, 2022); Call Authentication Trust Anchor, WC Docket No. 17-97, Sixth Report and

Order and Further Notice of Proposed Rulemaking, FCC 23-18, (rel. Mar. 17, 2023); Targeting and Eliminating

Unlawful Text Messages; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG

Docket Nos. 21-402 and 02-278, Report and Order and Further Notice of Proposed Rulemaking, FCC 23-21 (rel.

Mar. 17, 2023); Advanced Methods to Target and Eliminate Unlawful Robocalls; Call Authentication Trust Anchor,

CG Docket No. 17-59, WC Docket No. 17-97, Seventh Report and Order in CG Docket No. 17-59 and WC Docket

No. 17-97, Eighth Further Notice Of Proposed Rulemaking in CG Docket No. 17-59, and Third Notice of Inquiry in

CG Docket 17-5, FCC 23-37 (May 19, 2023).

Federal Communications Commission FCC 23-83

television system or provider of telecommunications service.

162

Since 2011, the Commission has

undertaken a series of reforms with the goal of improving access to poles to, among other things, help

speed the deployment of broadband infrastructure.

163

However, in the RIF Order, the Commission

effectively eliminated section 224 pole attachment rights of broadband-only providers as a result of its

classifying broadband as an information service.

164

In 2020, following the Mozilla court’s direction that

the Commission “grapple with the lapse in legal safeguards” for broadband-only providers that resulted

from the RIF Order,

165

the Commission concluded that while there were potentially adverse effects to this

class of providers resulting from the loss of pole attachment rights, the benefits of returning BIAS to an

information service classification outweighed any drawbacks.

166

We tentatively conclude that the

Commission erred in its 2020 analysis and believe that reclassifying BIAS as a telecommunications

service will help support the Commission’s goals to facilitate broadband deployment, and we seek

comment on this tentative conclusion. How has the market for broadband-only ISPs changed since 2015,

in particular for new entrants and those ISPs seeking infrastructure access via pole attachments? What

effect has the Commission’s elimination of pole attachment rights for broadband-only ISPs had on the

deployment of broadband, particularly to unserved or underserved areas? How would reinstatement of

pole attachment rights benefit or burden ISPs, particularly small ISPs? As the Commission has

recognized, Congress recently has made available unprecedented levels of federal funding for broadband

buildout, including a variety of programs administered by the National Telecommunications and

Information Administration (NTIA), including the Broadband, Equity, Access, and Deployment Program

(BEAD), the State Digital Equity Capacity Grant Program and its federal counterpart, the Middle Mile

Infrastructure Grant Program, and the Tribal Broadband Connectivity Program.

167

We believe that

ensuring the protections of section 224 are restored to all ISPs, including broadband-only providers, will

pave the way for quicker and less expensive broadband deployment, thereby enabling that funding to go

as far as possible. We seek comment on that view.

48. We also seek comment on how reclassifying BIAS as a telecommunications service and

classifying mobile BIAS as a commercial mobile service will impact the Commission’s authority over

wireless infrastructure.

168

Although section 332(e)(7) of the Act, and Commission interpretation thereof,

162

47 U.S.C. § 224(b).

163

See generally Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, WC Docket

No. 07-245, GN Docket No. 09-51, Report and Order and Order on Reconsideration, 26 FCC Rcd 5240 (2011);

Implementation of Section 224 of the Act; A National Broadband Plan for Our Future, WC Docket No. 07-245, GN

Docket No. 09-51, Order on Reconsideration, 30 FCC Rcd 13731 (2015); Accelerating Wireline Broadband

Deployment by Removing Barriers to Infrastructure Investment, WC Docket No. 17-84, WT Docket No. 17-79,

Third Report and Order and Declaratory Ruling, 33 FCC Rcd 7705 (2018) (2018 Wireline Infrastructure Order);

Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WC Docket No.

17-84, Second Further Notice of Proposed Rulemaking, 37 FCC Rcd 4144 (2022).

164

See RIF Remand Order, 35 FCC Rcd at 12370-71, paras. 71-72.

165

Mozilla, 940 F.3d at 108-109. “Broadband-only” providers refer to those ISPs that lack a commingled

telecommunications service or cable television system. See RIF Order on Remand, 33 FCC Rcd at 12370, para. 71.

166

RIF Order on Remand, 33 FCC Rcd at 12370-77, paras. 71-81.

167

2022 Communications Marketplace Report at para. 497; Report on the Future of the Universal Service Fund, WC

Docket No. 21-476, Notice of Inquiry, 36 FCC Rcd 18006, 18015, para. 22 (2021).

168

See generally 47 U.S.C. § 337(c)(7); Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7) to

Ensure Timely Siting Review, WT Docket No. 08-165, Declaratory Ruling, 24 FCC Rcd 13994, 14016, para. 56

(2009), aff’d, City of Arlington v. FCC, 668 F.3d 229

(

5th Cir. 2012) (City of Arlington), aff’d, 569 U.S. 290 (2013);

Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment et al., WT Docket

No. 17-79 et al., Declaratory Ruling and Third Report and Order, 33 FCC Rcd 9088 (2018) (2018 Wireless

Infrastructure Order). Section 337(c)(7)(C) defines “personal wireless services” to include CMRS, unlicensed

wireless services, and common carrier wireless exchange access services. 47 U.S.C. § 332(c)(7)(C). In 2012,

(continued….)

Federal Communications Commission FCC 23-83

regulate state and local authority over the placement, construction, and modification of personal wireless

service facilities, are there ways in which classifying broadband as a telecommunications service can

further advance the Commission’s goals to “improve service quality and lower prices for consumers” for

broadband access?

169

Finally, we also seek comment on how reclassification of BIAS as a

telecommunications service may affect the Commission’s application of the Act’s preemption

frameworks in sections 253(d) and 332(c)(3) regarding infrastructure used to provide broadband-only

services.

170

49. Universal Service. We tentatively conclude that classifying BIAS as a

telecommunications service will strengthen our policy initiatives to support the availability and

affordability of BIAS through USF programs, and we seek comment on this tentative conclusion. The

Communications Act defines universal service as an “evolving level of telecommunications services,”

and charges the Commission with periodically establishing such services.

171

BIAS is now clearly an

essential service upon which consumers rely, and we believe that placing BIAS outside of the

Commission’s Title II authority weakens the Commission’s ability to deliver universal service support for

that essential service, especially in rural areas. We seek comment on this view. In Mozilla, the court

found that the Commission failed to explain how its universal service authority over telecommunications

carriers in section 254(e) of the Act could extend to ISPs without BIAS classified as a

telecommunications service for purposes of the Lifeline program, and it remanded the issue back to the

Commission.

172

Although the Commission conceded in the RIF Remand Order that under a Title I

regime, BIAS could not be a section 254(c) supported service because section 254(c) defines universal

service as an “evolving level of telecommunications services,” it nevertheless asserted a theory under

section 254(e) to enable Lifeline support for BIAS offered by eligible telecommunications carriers

(ETCs), similar to the theory under which the Commission has funded broadband-capable networks

through the High-Cost Program.

173

50. We tentatively conclude that reclassifying BIAS as a telecommunications service will

bolster the Commission’s ability to provide High-Cost and low-income support, and seek comment on

(Continued from previous page)

Congress expressly modified this preservation of local authority by enacting Section 6409(a), which requires local

governments to approve certain types of facilities siting applications “[n]otwithstanding section 704 of the

Telecommunications Act of 1996 [codified in substantial part as Section 332(c)(7)] . . . or any other provision of

law.” Middle Class Tax Relief and Job Creation Act of 2021, Pub L. No. 112-96, 126 Stat. 156 (2012) (codified at

47 U.S.C. § 6409(a)(1)).

169

See 2018 Wireless Infrastructure Order, 33 FCC Rcd at 9093, para. 18 (quoting 47 U.S.C. § 337(c)(7)(B)(v)).

170

2018 Wireline Infrastructure Order, 33 FCC Rcd at 7806, para. 167; 2018 Wireless Infrastructure Order, 33

FCC Rcd at 9108, para. 36.

171

47 U.S.C. § 254(c)(1).

172

Mozilla, 940 F.3d at 68-70.

173

See 47 U.S.C. § 254(c)(1) (defining generally universal service as “an evolving level of telecommunications

services that the Commission shall establish periodically under this section, taking into account advances in

telecommunications and information technologies and services” and considering in the definition of services

supported by universal service support mechanisms the extent to which such services “(A) are essential to education,

public health, or public safety; (B) have, through the operation of market choices by consumers, been subscribed to

by a substantial majority of residential customers; (C) are being deployed in public telecommunications networks by

telecommunications carriers; and (D) are consistent with the public interest, convenience, and necessity”); id. §

254(e) (stating that ETCs “shall be eligible to receive specific Federal universal service support” and that an ETC

receiving universal service support “shall use that support only for the provision, maintenance, and upgrading of

facilities and services for which the support is intended”); RIF Remand Order, 35 FCC Rcd at 12380-86, paras. 87-

98; see also Connect America Fund et al., WC Docket No. 10-90, Report and Order and Further Notice of Proposed

Rulemaking, 26 FCC Rcd 17663, 17685-86, para. 64 (2011).

Federal Communications Commission FCC 23-83

this tentative conclusion. Among other things, we believe that reclassifying BIAS as a

telecommunications service could eventually allow broadband-only providers to once again participate in

the Lifeline program,

174

and would give the Commission the ability to adjust certain service obligations

for ETCs. We further believe that reclassifying BIAS as a telecommunications service would enhance

our ability to connect low-income households in rural areas, including through the Link Up program,

which provides support to reduce connection charges for eligible residents of Tribal lands who subscribe

to telecommunications service from a telecommunications carrier receiving high-cost support.

175

We seek

comment on these views, including how this may impact ISPs, especially smaller ISPs and ISPs serving

rural areas.

51. We also tentatively conclude that classification of BIAS as a telecommunications service

protects public investments in BIAS access and affordability. Since the inception of BIAS, the

Commission, along with other federal and state entities, have made significant investments to ensure that

BIAS networks reach all consumers and are affordable, particularly through the Affordable Connectivity

Program. These efforts increased dramatically since the beginning of the COVID-19 pandemic as

Congress directed a large influx of funding in broadband deployment and consumer access.

176

believe our proposed reclassification will enable the Commission to protect these investments on an

ongoing basis by enabling the Commission to ensure the connections supported by these funds align with

the other policy goals we detail here: advancing national security and public safety and protecting

consumers. In doing so, we believe we can ensure these connections continue to achieve their primary

purpose of benefiting consumers. We seek comment on these views.

52. Multiple-Tenant Environments (MTEs). We seek comment on how reclassification may

impact the Commission’s authority to take action to promote tenant choice and competition in the

provision of broadband services to the benefit of those who live and work in MTEs. The Commission has

long prohibited agreements between providers of certain communications services and MTE owners that

grant the provider exclusive access and rights to provide service to the MTE.

177

In 2019, the Commission

174

See Telecommunications Carriers Eligible for Universal Service Support, WC Docket No. 09-197, Order, DA

17-87 (WCB 2017); Telecommunications Carriers Eligible for Universal Service Support, WC Docket No. 09-197,

Order, DA 16-1325, 31 FCC Rcd 12736 (WCB 2016) (designating several broadband providers as Lifeline

Broadband Providers).

175

See 47 CFR §§ 54.413 and 54.414 (establishing Link Up support and the reimbursement process for Link Up).

176

See supra note 59.

177

In two orders adopted in 2000 and 2008, respectively, the Commission prohibited telecommunications carriers

from entering into or enforcing exclusivity contracts with MTE owners in both commercial and residential MTEs.

Promotion of Competitive Networks in Local Telecommunications Markets et al., WT Docket No. 99-217, CC

Docket Nos. 96-98 and 88-57, First Report and Order and Further Notice of Proposed Rulemaking in WT Docket

No. 99-217, Fifth Report and Order and Memorandum Opinion and Order in CC Docket No. 96-98, and Fourth

Report and Order and Memorandum Opinion and Order in CC Docket No. 88-57, 15 FCC Rcd 22983, 22985, para.

1 (2000); Promotion of Competitive Networks in Local Telecommunications Markets, WT Docket No. 99-217,

Report and Order, 23 FCC Rcd 5385, 5386, para. 5 (2008); see also 47 CFR § 64.2500. And in 2007, the

Commission prohibited certain MVPDs from entering into or enforcing exclusivity contracts with residential MTE

owners. See Exclusive Service Contracts for Provision of Video Services in Multiple Dwelling Units & Other Real

Estate Developments, MB Docket No. 07-51, Report and Order and Further Notice of Proposed Rulemaking, 22

FCC Rcd 20235, 20236, para. 1 (2007) (2007 Exclusive Service Contracts Order), affirmed, National Cable &

Telecommun. Ass’n v. FCC, 567 F.3d 659 (D.C. Cir. 2009) (applying the prohibition to cable operators and other

MVPDs that are subject to section 628 of the Act, 47 U.S.C. § 548). The Commission defined the scope of this rule

to include “a multiple dwelling unit building (such as an apartment building, condominium building or cooperative)

and any other centrally managed residential real estate development (such as a gated community, mobile home park,

or garden apartment).” 47 CFR § 76.2000(b); see also 2007 Exclusive Service Contracts Order, 22 FCC Rcd at

20238, para. 7. The Fourth Circuit Court of Appeals has applied this prohibition on exclusive access to a

homeowners’ association. Lansdowne on the Potomac Homeowners Ass’n v. OpenBand at Lansdowne, LLC, 713

F.3d 187

(4th Cir. 2013).

Federal Communications Commission FCC 23-83

released a Notice of Proposed Rulemaking that sought comment about these practices and others that

could have the effect of dampening competition or deployment,

178

and on the Commission’s authority to

target different kinds of entities, including telecommunications providers, MVPDs, and broadband-only

providers.

179

In 2022, relying on sections 201 and 628 of the Act,

180

the Commission adopted rules to

prohibit telecommunications carriers and MVPDs from entering into exclusive and graduated revenue

sharing agreements, and to require that telecommunications carriers and MVPDs include disclaimers on

marketing materials distributed to MTE tenants that inform tenants of the existence of an exclusive

marketing arrangement, among other things.

181

The Commission determined that it was appropriate to

“proceed incrementally,” but cautioned that it would “continue to monitor competition in MTEs to

determine whether we should alter the scope of our rules to cover other providers,” including broadband-

only providers. We seek comment whether reclassification of BIAS would provide additional authority

for the Commission to further promote competition and consumer choice in communications services in

MTEs.

53. Free Expression. We believe BIAS connections promote diversity of viewpoints by

allowing traditionally disadvantaged communities to express themselves outside of traditional media.

182

Social media websites and other platforms particularly have become important platforms for free

expression, political engagement, and social activism.

183

Indeed, Congress has recognized that “the

Internet offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural

development, and myriad avenues for intellectual activity.”

184

Accordingly, we invite comment on any

free expression-related considerations associated with classifying BIAS as a telecommunications service

and any benefits or drawbacks of such classification for relevant communications.

54. Digital Equity. The Commission, as part of its continuing effort to advance digital equity

for all,

185

including people of color, persons with disabilities, persons who live in rural or Tribal areas,

and others who have been historically underserved, marginalized, and adversely affected by persistent

poverty and inequality, invites comments on any equity-related considerations

186

and benefits (if any) that

178

Improving Competitive Broadband Access to Multiple Tenant Environments et al., GN Docket No. 17-142 et al.,

Notice of Proposed Rulemaking, 34 FCC Rcd 5702, 5711-20, paras. 16-31 (2019).

179

Id. at 5720-21, paras. 32-35.

180

47 U.S.C. §§ 201(b), 548(b).

181

See Improving Competitive Broadband Access to Multiple Tenant Environments, GN 17-142, Report and Order

and Declaratory Ruling, 37 FCC Rcd 2448 (2022).

182

See Comments of Voices for Internet Freedom Coalition, et al., WC Docket No. 17-108, 2-3 (July 19, 2017).

183

See Dominique Skye McDaniel, As digital activists, teens of color turn to social media to fight for a more just

world, The Conversation (Apr. 20, 2023), https://theconversation.com/as-digital-activists-teens-of-color-turn-to-

social-media-to-fight-for-a-more-just-world-201841; Brooke Auxier, Social media continue to be important political

outlets for Black Americans, Pew Research Center (Dec. 11, 2020), https://www.pewresearch.org/short-

reads/2020/12/11/social-media-continue-to-be-important-political-outlets-for-black-americans/. See also Carr

Center for Human Rights Policy, Reimagining Rights & Responsibilities in the United States: Freedom of Speech

and Media (2021), https://carrcenter.hks.harvard.edu/files/cchr/files/free_speech.pdf (“[S]ocial media’s

democratization of speech has created an unprecedented capacity for grassroots mobilization and has lifted voices

who lack access to traditional forms of communication and power.”).

184

2015 Open Internet Order, 30 FCC Rcd at 5663, para. 143 (citing 47 U.S.C. § 230(a)(3)).

185

Section 1 of the Communications Act of 1934 as amended provides that the FCC “regulat[es] interstate and

foreign commerce in communication by wire and radio so as to make [such service] available, so far as possible, to

all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or

sex.” 47 U.S.C. § 151.

186

We define the term “equity” consistent with Executive Order 13985 as the consistent and systematic fair, just,

and impartial treatment of all individuals, including individuals who belong to underserved communities that have

(continued….)

Federal Communications Commission FCC 23-83

may be associated with the proposals and issues discussed herein. Specifically, we seek comment on how

our proposals may promote or inhibit advances in diversity, equity, inclusion, and accessibility, as well as

the scope of the Commission’s relevant legal authority.

5. Access for Persons with Disabilities

55. We seek comment on how reclassification may impact the Commission’s authority to

ensure that individuals with disabilities can communicate using BIAS. People with disabilities

“increasingly rely upon Internet-based video communications, both to communicate directly (point-to-

point) with other persons who are deaf or hard of hearing who use sign language, and through video relay

service.”

187

Section 716 of the Act requires that interoperable video conferencing services be accessible,

regardless of how those services are transmitted—by broadband or otherwise—and also requires that text

messaging, email, other electronic messaging services, and interconnected and non-interconnected VoIP

services, be accessible.

188

In addition, section 718 of the Act requires that Internet browsers installed on

mobile phones must be accessible to people who are blind or visually impaired to ensure the accessibility

of mobile broadband.

189

How would reclassification affect the Commission’s ability to implement and

enforce these provisions? We seek comment on the impact, if any, that reclassification may have on the

Commission’s goals to ensure that BIAS remains accessible to individuals with disabilities. For instance,

if the Commission declines to forbear from section 255 of the Act, as we propose below, would that

provide additional authority for the Commission to require that ISPs’ telecommunications services and

equipment be accessible to and usable by people with disabilities?

190

6. The RIF Order’s Policy Rationales Did Not Justify Reversing the

Classification of Broadband Service

56. In the RIF Order, the Commission’s primary policy justifications for reclassifying BIAS

as a Title I service were its conclusions regarding the alleged harm to investment by Title II classification

and the benefits to investment by Title I classification.

191

However, the RIF Order gave little weight to

the 2015 Open Internet Order’s showing that investment continued for broadband services that were

been denied such treatment, such as Black, Latino, and Indigenous and Native American persons, Asian Americans

and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual,

transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons

otherwise adversely affected by persistent poverty or inequality. See Exec. Order No. 13985, 86 Fed. Reg. 7009,

Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal

Government (Jan. 20, 2021).

187

California Public Utilities Commission Comments, WC Docket Nos. 17-108, 17-287, and 11-42, at 10 (Apr. 20,

2020). Video relay service is a form of TRS that allows people who are deaf, hard of hearing, deafblind, and who

have speech disabilities who use sign language to communicate with voice telephone users through a

communications assistant using video transmissions over the Internet. See 47 CFR § 64.601(a)(51). See also

Structure and Practices of the Video Relay Service Program, CG Docket No. 10-51, Declaratory Ruling, Order and

Notice of Proposed Rulemaking, 25 FCC Rcd 6012, 6014, para. 3 (2010).

188

47 U.S.C. § 617; Access to Video Conferencing; Implementation of Sections 716 and 717 of the Communications

Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010, CG

Docket Nos. 23-161, 10-213, and 03-123, Report and Order, Notice of Proposed Rulemaking, and Order, FCC 23-50

para. 29 (rel. June 12, 2023) (stating that section 716’s coverage “does not depend on the options offered to users for

connecting to a video conference (e.g., through a dial-up telephone connection or by broadband, through a

downloadable app or a web browser)”).

189

47 U.S.C. § 619.

190

47 U.S.C. § 255.

191

RIF Order, 33 FCC Rcd at 362-63, para. 86-87.

Federal Communications Commission FCC 23-83

regulated as Title II common carrier services, including digital subscriber line (DSL), which was

regulated as such until 2005.

192

57. We tentatively conclude that the Commission’s conclusions in the RIF Order that ISP

investment is closely tied to the classification of BIAS were unsubstantiated. Instead, we agree with the

RIF Order’s statement that “owners of network infrastructure make long-term, irreversible

investments,”

193

which we believe makes it unlikely that changes in investment shortly following the

adoption of each Order were actually related to the effects of each Order. We seek comment on this

belief. We note that the Commission received conflicting viewpoints regarding the actual effect of Title

II classification on investment.

194

Instead of concluding, as the 2015 Open Internet Order did, that

conflicting viewpoints concerning the effect of classification on investment prevented the Commission

from being certain which viewpoint was more accurate,

195

the Commission chose to rely on certain

studies purporting to show that Title II classification in the 2015 Open Internet Order hurt investment to

reach its conclusion about the effect of Title II classification on investment,

196

even as the Commission

seemed to recognize the weaknesses of those studies.

197

Additionally, similar to the 2015 Open Internet

Order record,

198

the RIF Order’s record showed opposing views on the likely long-term effects of the

Commission’s regulatory decisions on investment.

199

We believe, as the Commission did in 2015, that

“no party [could] quantify with any reasonable degree of accuracy how either a Title I or a Title II

approach may affect future investment.”

200

As such, we tentatively conclude that changes in ISP

investment following the adoption of each Order were more likely the result of other factors unrelated to

the classification of BIAS, such as broader economic conditions at the time, technology changes such as

the transition from 3G to 4G LTE networks, and ISPs’ general business development decisions.

201

seek comment on this tentative conclusion. Is there any evidence that ISP investment is closely tied to the

regulatory classification of BIAS? Can any declines or increases in investment following adoption of

either the 2015 Open Internet Order or the RIF Order be directly attributed to the classification of BIAS

192

See 2015 Open Internet Order, 30 FCC Rcd at 5612-13, para. 39 (“History demonstrates that this careful

approach to the use of Title II will not impede investment. First, mobile voice services have been regulated under a

similar light-touch Title II approach since 1994 — and investment and usage boomed. . . . And, of course, wireline

DSL was regulated as a common-carrier service until 2005—including a period in the late ‘90s and the first five

years of this century that saw the highest levels of wireline broadband infrastructure investment to date.”); see also

Appropriate Framework for Broadband Access to the Internet Over Wireline Facilities et al., CC Docket Nos. 02-33

et al., WC Docket Nos. 04-242 and 05-271, Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd

14853, 14858, para. 5 (2005) (Wireline Broadband Classification Order).

193

RIF Order, 33 FCC Rcd at 364, para. 89.

194

See id. at 365, para. 91 (discussing the RIF Order record on this issue).

195

See 2015 Open Internet Order, 30 FCC Rcd at 5791, para. 410.

196

RIF Order, 33 FCC Rcd at 365-66, paras. 91-93.

197

See, e.g., RIF Order, 33 FCC Rcd at 365, para. 92 (noting that a comparison it cited is among those that “can

only be regarded as suggestive, since they fail to control for other factors that may affect investment”); id. at 365,

para. 91 (noting that counterfactual studies that “attempt[ed] to assess the predicted causal effects of Title II

regulation on ISP investment and/or output” are not dispositive). See also Mozilla, 940 F.3d at 51 (noting that “the

Commission was cleareyed in assigning quite modest probative value to studies attempting to draw links between

the [2015 Open Internet Order] and broadband investment”); id. at 55 (highlighting “the Commission’s recognition

that the [2015 Open Internet Order]’s effect on investment was subject to honest dispute, focusing . . . on what is

‘likely’ to happen, repeatedly flagging shortcomings in studies it cites, and qualifying their probative force”).

198

See 2015 Open Internet Order, 30 FCC Rcd at 5791, para. 410.

199

See RIF Order, 33 FCC Rcd at 370-71, para. 102 (discussing the RIF Order record on this issue).

200

2015 Open Internet Order, 30 FCC Rcd at 5791, para. 410.

201

See id. (noting that “regulation is just one of many factors affecting investment decisions”).

Federal Communications Commission FCC 23-83

in those Orders? What other factors besides the regulatory classification of broadband impact investment

decisions? We invite parties to comment on the strength of any evidence submitted on these issues.

58. Notwithstanding these tentative conclusions, we seek comment generally on how, and the

extent to which, our proposed classification of BIAS as a telecommunications service will affect ISPs’

investment incentives today. How will it affect small ISPs? Is it possible to evaluate ISPs’ investment

incentives independent of any incentives and investment activity that may result from the billions of

dollars in federal and state funding that has been and will be provided to ISPs to support infrastructure

deployment and broadband connectivity?

202

C. Scope of Reclassification

59. Broadband Internet Access Service. We propose to continue using the definition of

“broadband Internet access service” as a “mass-market retail service by wire or radio that provides the

capability to transmit data to and receive data from all or substantially all internet endpoints, including

any capabilities that are incidental to and enable the operation of the communications service, but

excluding dial-up internet access service,” as well as “any service that the Commission finds to be

providing a functional equivalent of the service described [in the definition] or that is used to evade the

protections set forth” in part 8 of the Commission’s rules.

203

The Commission has chiefly retained this

definition since it first defined broadband Internet access service in the 2010 Open Internet Order.

204

seek comment on whether there is any reason to depart from this definition of broadband Internet access

service.

60. Similarly, we propose to continue to define “mass market” as the Commission did in the

2015 Open Internet Order and RIF Order—“a service marketed and sold on a standardized basis to

residential customers, small businesses, and other end-user customers such as school and libraries.”

205

addition to including broadband Internet access service purchased with support from the E-Rate, Lifeline,

and Rural Health Care programs, as well as any broadband Internet access service offered using networks

supported by the Connect America Fund or the Rural Digital Opportunity Fund, we propose that such

“mass market” services would also include any broadband Internet access service purchased with support

from the Affordable Connectivity Program and the Connected Care Pilot Program.

206

Consistent with the

2015 Open Internet Order and RIF Order, the proposed definition excludes enterprise service offerings,

which are typically offered to larger organizations through customized or individually negotiated

arrangements, and special access services.

207

We seek comment on our proposal. Should we apply the

modified definition of broadband Internet access service used for the broadband label requirement in this

context to make clear that enterprise services are excluded even when they are supported by the

Commission’s broadband access and affordability programs?

208

61. We also propose to remain consistent with the Commission’s conclusions in prior Orders

to include in the term “broadband Internet access service” those services provided over any technology

202

See NTIA, BroadbandUSA, Federal Funding, https://broadbandusa.ntia.doc.gov/resources/federal/federal-

funding (last visited Sept. 20, 2023).

203

47 CFR § 8.1(b); see also id. Part 8.

204

See 2010 Open Internet Order, 25 FCC Rcd at 17932, para. 44; see also 2015 Open Internet Order, 30 FCC Rcd

at 5745-50, 5883, paras. 336-40, Appx. A, Final Rules; RIF Order, 33 FCC Rcd at 318-20, paras. 21-25.

205

See 2015 Open Internet Order, 30 FCC Rcd at 5683-84, para. 189; RIF Order, 33 FCC Rcd at 318, para. 21 n.58.

206

These programs statutorily support BIAS regardless of its classification status.

207

See 2015 Open Internet Order, 30 FCC Rcd at 5683-84, para. 189; RIF Order, 33 FCC Rcd at 318, para. 21 n.58.

208

See Empowering Broadband Consumers Through Transparency, CG Docket No. 22-2, Order on

Reconsideration, FCC 23-68, at 6-8, paras. 24-26, Appendix A (rel. Aug. 29, 2023) (Broadband Label

Reconsideration Order).

Federal Communications Commission FCC 23-83

platform, including but not limited to wire, terrestrial wireless (including fixed and mobile wireless

services using licensed or unlicensed spectrum), and satellite.

209

We seek comment on this proposal. We

continue to intend broadband Internet access service “to cover the entire universe of Internet access

services at issue in the Commission’s prior broadband classification decisions, as well as all other

broadband Internet access services offered over other technology platforms that were not addressed by

prior classification orders.”

210

As in prior orders, we propose that “fixed” broadband Internet access

service refers to a broadband Internet access service that serves end users primarily at fixed endpoints

using stationary equipment, such as the modem that connects an end user’s home router, computer, or

other Internet access device to the Internet, and encompasses the delivery of fixed broadband service over

any medium, including various forms of wired broadband service (e.g., cable, DSL, fiber), fixed wireless

broadband service (including fixed services using unlicensed spectrum), and fixed satellite broadband

service.

211

Likewise, we propose that “mobile” broadband Internet access service refers to a broadband

Internet access service that serves end users primarily using mobile stations, and includes, among other

things, services that use smartphones or mobile-network-enabled tablets as the primary endpoints for

connection to the Internet, as well as mobile satellite broadband service.

212

Consistent with the existing

definition, we propose to include within the definition of broadband Internet access service any such

service, regardless of whether the ISP leases or owns the facilities used to provide the service.

213

We seek

comment on our proposals.

62. We also propose that to the extent coffee shops, bookstores, airlines, private end-user

networks such as libraries and universities, and other businesses acquire broadband Internet access service

from an ISP to enable patrons to access the Internet from their respective establishments, provision of

such service by the premise operator would not itself be considered BIAS unless it was offered to patrons

as a retail mass-market service.

214

Likewise, when a user employs, for example, a wireless router or a

Wi-Fi hotspot to create a personal Wi-Fi network that is not intentionally offered for the benefit of others,

we believe he or she is not offering a broadband Internet access service under our proposed definition,

because the user is not marketing and selling such service to residential customers, small businesses, and

other end-user customers.

215

Such proposed findings are consistent with the manner in which the

Commission has historically defined broadband Internet access service,

216

and we seek comment on any

changed circumstances that would justify a different outcome.

63. We seek comment on whether there are other types of services we should address in

defining the scope of broadband Internet access service. For example, with respect to 5G deployments,

new network architectures and uses of the technology are emerging, including some that offer both

private and public 5G connectivity, like 5G Internet of Things (IoT).

217

We seek comment on how we

209

See 2015 Open Internet Order, 30 FCC Rcd at 5746-47, para. 337; RIF Order, 33 FCC Rcd at 319, para. 22.

210

RIF Order, 33 FCC Rcd at 319, para. 22; see also 2015 Open Internet Order, 30 FCC Rcd at 5746-47, para. 337

(expressing the same findings regarding the scope of BIAS within the categories of “fixed” and “mobile” broadband

Internet access service).

211

RIF Order, 33 FCC Rcd at 319, para. 22 (footnotes omitted); see also 2015 Open Internet Order, 30 FCC Rcd at

5746-47, para. 337 (footnotes omitted).

212

RIF Order, 33 FCC Rcd at 319, para. 22; see also 2015 Open Internet Order, 30 FCC Rcd at 5746-47, para. 337.

213

2015 Open Internet Order, 30 FCC Rcd at 5746-47, para. 337; RIF Order, 33 FCC Rcd at 319, para. 22.

214

2015 Open Internet Order, 30 FCC Rcd at 5749, para. 340; RIF Order, 33 FCC Rcd at 320, para. 24.

215

2015 Open Internet Order, 30 FCC Rcd at 5749, para. 340; RIF Order, 33 FCC Rcd at 320, para. 25.

216

See 2015 Open Internet Order, 30 FCC Rcd at 5749, para. 340; RIF Order, 33 FCC Rcd at 320, para. 25.

217

See, e.g., Enterprise IoT Insights, “NTT Rolls Out 5G IoT Service in the U.S. via its Transetel Subsidiary,” May

17, 2022, https://enterpriseiotinsights.com/20220517/internet-of-things/ntt-rolls-out-5g-iot-service-us-via-transetel-

subsidiary.

Federal Communications Commission FCC 23-83

should view these services for purposes of defining broadband Internet access service—are these types of

services best viewed as enterprise services excluded from the definition of broadband Internet access

service or should they be treated as non-BIAS data services?

64. Non-BIAS Data Services. We also seek comment on whether to continue excluding non-

BIAS data services (formerly “specialized services”) from the scope of broadband Internet access service.

In the 2015 Open Internet Order, the Commission explained that certain services offered by ISPs that

share capacity with broadband Internet access service over ISPs’ last-mile facilities were not broadband

Internet access service and provided examples and characteristics of services that, at that time, likely fit

within this category of non-BIAS data services.

218

The Commission defined characteristics of these

services, explaining that they (1) are not used to reach large parts of the Internet; (2) are not a generic

platform, but rather a specific “application level” service; and (3) use some form of network management

to isolate the capacity used by these services from that used by broadband Internet access service.

219

seek comment on whether these characteristics still appropriately describe non-BIAS data services. Are

there any other characteristics of such services on which we should rely? Are these still appropriate

examples of data services that are outside the scope of broadband Internet access service? Have the

distinctions between mass-market retail and non-BIAS data services changed, particularly from a

consumer, technical, or other perspective, to warrant reconsideration of this exclusion?

65. We also tentatively conclude that we should maintain the 2015 Open Internet Order’s

approach to continue closely monitoring the development of non-BIAS data services.

220

We are

especially concerned about activities that may undermine national security and public safety, consumers’

use of broadband Internet access service, and the ability of consumers to access broadband Internet access

service. We also share the Commission’s concern in the 2015 Open Internet Order “that over-the-top

services offered over the Internet are not impeded in their ability to compete with other data services.”

221

We seek comment on our proposed approach.

66. Internet Traffic Exchange. We next tentatively conclude that broadband Internet access

service, as we propose to define it, includes arrangements for the exchange of Internet traffic by an edge

provider or an intermediary with the ISP’s network, referred to as Internet peering, traffic exchange or

interconnection, to the extent they provide the “capability to transmit data to and receive data from all or

substantially all internet endpoints . . . [and] enable the operation of the communications service.”

222

seek comment on this position. As the Commission explained in 2015, “[t]he representation to retail

218

2015 Open Internet Order, 30 FCC Rcd at 5696, paras. 207-208. The Commission identified some ISPs’

existing facilities-based VoIP and Internet Protocol-video offerings, connectivity bundled with e-readers, heart

monitors, energy consumption sensors, limited-purpose devices such as automobile telematics, and services that

provide schools with curriculum-approved applications and content as examples of non-BIAS data services. See id.

at 5696-97, para. 208; RIF Order, 33 FCC Rcd at 319-20, para. 23.

219

2015 Open Internet Order, 30 FCC Rcd at 5697, para. 209.

220

In the 2015 Open Internet Order, the Commission emphasized that non-BIAS data services might still be subject

to enforcement action if the Commission determined that: (1) a particular service is providing the functional

equivalent of BIAS; (2) an ISP claimed or attempted to claim that a service that is the equivalent of BIAS is a non-

BIAS data service not subject to any rules that would otherwise apply; or (3) a non-BIAS data service offering is

undermining investment, innovation, competition, and end-user benefits. 2015 Open Internet Order, 30 FCC Rcd at

5697, para. 210.

221

Id.

222

See id. at 5686, para. 194 n.482 (“As a general matter, Internet traffic exchange involves the exchange of IP

traffic between networks. An Internet traffic exchange arrangement determines which networks exchange traffic

and the destinations to which those networks will deliver that traffic. In aggregate, Internet traffic exchange

arrangements allow an end user of the Internet to interact with other end users on other Internet networks, including

content or services that make themselves available by having a public IP address, similar to how the global public

switched telephone networks consists of networks that route calls based on telephone numbers.”).

Federal Communications Commission FCC 23-83

customers that they will be able to reach ‘all or substantially all Internet endpoints’ necessarily includes

the promise to make the interconnection arrangements necessary to allow that access”

223

and “the promise

to transmit traffic to and from those Internet end points back to the user.”

224

We tentatively conclude that

the Commission’s findings and rationale regarding Internet traffic exchange in the 2015 Open Internet

Order—that such “edge service” is derivative of broadband Internet access service and constitutes the

same traffic—remain valid,

225

and we seek comment on our tentative conclusion. We observe that the

RIF Order does not appear to dispute the Commission’s previous conclusion that broadband Internet

access service includes this “edge service,” and instead determined that Internet traffic exchange

arrangements were appropriately regulated as an information service by virtue of its conclusion that

broadband Internet access service is an information service. We seek comment on whether there are

circumstances under which “edge service” would not be best characterized as a part of broadband Internet

access service, and how commenters would characterize that service, given the Verizon court’s conclusion

that, in addition to the retail service provided to consumers, “broadband providers furnish a service to

edge providers, thus undoubtedly functioning as edge providers’ ‘carriers.’”

226

We seek comment on the

Verizon court’s characterization of broadband Internet access service in relation to service provided to

both consumers and edge providers. How, if at all, has edge service changed in relation to broadband

Internet access service? Are there any grounds to depart from the Commission’s prior treatment of edge

service and edge providers as a “derivative” service of broadband Internet access service?

67. We also seek comment on whether we should exclude any particular services or functions

from the definition of broadband Internet access service. For example, should we exclude virtual private

network (VPN) services, web hosting services, and/or data storage services

227

from the scope of

broadband Internet access service?

228

While the Commission has previously excluded content delivery

networks (CDNs) and Internet backbone services, including transit arrangements, we seek comment

whether a different approach may be warranted because these services are integral to transmitting data

and delivering communications to Internet endpoints, thus falling within the proposed definition of

“broadband internet access service.” We observe that these services directly or indirectly provide data on

behalf of their clients. For example, while VPN servers reflect one end-point of an underlying

communication stream, they act as a launching pad to forward traffic to the destination identified by the

user. We seek comment on this proposed analysis. Do these services fall within the scope of broadband

Internet access service, as we propose to define it?

D. Classifying Broadband Internet Access Service as a Telecommunications Service

68. The 1996 Act enacted the “telecommunications service” and “information service”

definitional frameworks, and since that time, the Commission and courts have grappled with the

classification of Internet access services as technology and the communications marketplace have evolved

and the Internet has become essential to our daily lives. Courts have long recognized the Commission’s

223

See 2015 Open Internet Order, 30 FCC Rcd at 5610, 5693-94, paras. 28, 204.

224

Id. at 5748, para. 339; see also USTA, 825 F.3d at 713 (explaining that the issue in Verizon was the

Commission’s failure to classify BIAS as a Title II service, but that the Commission overcame this by reclassifying

broadband “and the interconnection arrangements necessary to provide it” as a telecommunications service).

225

See 2015 Open Internet Order, 30 FCC Rcd at 5748, para. 339 (referring to a broadband provider’s promise to

transmit traffic to and from Internet end points back to the user as the “edge service”).

226

Verizon, 740 F.3d at 653.

227

For purposes of this NPRM, “data storage services” refers to the provision of access to data storage platforms.

The term is distinct from “caching,” which involves the temporary storage of data for purposes of delivering content

to specific endpoints.

228

See 2015 Open Internet Order, 30 FCC Rcd at 5749, para. 340; RIF Order, 33 FCC Rcd at 320, paras. 24-25.

Federal Communications Commission FCC 23-83

authority to interpret and implement the Communications Act of 1934.

229

Both the 2015 Open Internet

Order and the RIF Order recognized this authority.

230

And on review of each of those decisions, the D.C.

Circuit accepted the Commission’s authority to make classification decisions, even when this involved a

change in course.

231

In addressing a prior Commission decision classifying BIAS, in Brand X, the

Supreme Court confirmed not only that an administrative agency can change its interpretation of an

ambiguous statute, but that it “must consider varying interpretations and the wisdom of its policy on a

continuing basis, for example in response to . . . a change in administrations.”

232

In light of this

precedent, we believe that we not only have the authority to classify BIAS, but that we must reevaluate

the 2018 information service classification in consideration of the policy rationales and marketplace

developments we have described above as warranting a return to the telecommunications service

classification. We seek comment on this view.

69. In evaluating the classification of BIAS, three definitional terms are relevant. First, the

Act defines “telecommunications” as “the transmission, between or among points specified by the user, of

information of the user’s choosing, without change in the form or content of the information as sent and

received.”

233

Second, the Act defines “telecommunications service” as “the offering of

telecommunications for a fee directly to the public, or to such classes of users as to be effectively

available directly to the public, regardless of the facilities used.”

234

Finally, the Act defines “information

service” as “the offering of a capability for generating, acquiring, storing, transforming, processing,

retrieving, utilizing, or making available information via telecommunications . . . , but does not include

any use of any such capability for the management, control, or operation of a telecommunications system

or the management of a telecommunications service.”

235

When Congress enacted the definitions of

“telecommunications service” and “information service” in the 1996 Act,

236

it substantially incorporated

229

See, e.g., Nat’l Broad. Co. v. United States, 319 U.S. 190, 219 (1943) (“In the context of the developing problems

to which it was directed, the Act gave the Commission . . . expansive powers.”); United States v. Storer

Broadcasting Co., 351 U.S. 192, 203 (1956) (noting “the power of the Commission” to exercise “the rulemaking

authority necessary for the orderly conduct of its business,” and explaining that sections 4(i) and 303(r) of the Act

“grant general rulemaking power not inconsistent with the Act or law”); AT&T v. Iowa Utils. Bd., 525 U.S. 366, 378

(1999) (stating that “[w]e think that the grant in § 201(b) means what it says: The FCC has rulemaking authority to

carry out the ‘provisions of this Act’”); Nat’l Cable & Telecomms. Ass’n v. Brand X, 545 U.S. 967, 980-82 (2005)

(Brand X) (finding that the FCC has authority to classify services—and BIAS, in particular—and to change course

in its classification of BIAS if it acknowledges that it is doing so and justifies its decision); Phila. Television Broad.

Co. v. FCC, 359 F.2d 282, 283 (D.C. Cir. 1966) (recognizing the Commission’s authority to determine whether

community antenna television (CATV) “systems are common carriers within the meaning of the Communications

Act”); Nat’l Ass’n of Regul. Util. Comm’rs v. FCC, 525 F.2d 630 (D.C. Cir. 1976) (affirming the FCC’s

classification of Specialized Mobile Radio Systems (SMRS) as non-common carriers and observing that a different

classification could be warranted in the future “should the actual operations of SMRS appear to bring them within

the common carrier definition”).

230

See, e.g., 2015 Open Internet Order, 30 FCC Rcd at 5742, 5743-44, paras. 328, 331-35; RIF Order, 33 FCC Rcd

at 403-405, paras. 155-56.

231

See, e.g., Mozilla, 940 F.3d at 23-24, 43, 50, 53-56, 63-64; USTA, 825 F.3d at 701-702, 704, 708-10, 723-24.

232

Brand X, 545 U.S. at 981 (quoting Chevron, 467 U.S. at 863-64) (emphasis added; internal quotation marks

omitted).

233

47 U.S.C. § 153(50).

234

47 U.S.C. § 153(53).

235

47 U.S.C. § 153(24).

236

Telecommunications Act of 1996, Pub. L. No. 104-104, § 3(a)(2), 110 Stat. 56, 58-60 (1996), codified at 47

U.S.C. §§ 153(24), 153(50), 153(53).

Federal Communications Commission FCC 23-83

the “basic” and “enhanced” service classifications from the Computer Inquiries line of decisions.

237

Under the Computer Inquiries, facilities-based telephone companies were obligated to offer the

transmission component of their enhanced service offerings—including broadband Internet access service

offered via DSL—to unaffiliated enhanced service providers on nondiscriminatory terms and conditions

pursuant to tariffs or contracts governed by Title II.

238

Thus, there is no disputing that until 2005, Title II

applied to the transmission component of DSL service.

239

Further, because the statutory definitions

substantially incorporated the Commission’s terminology under the Computer Inquiries, Commission

decisions regarding the distinction between basic and enhanced services—in particular, decisions

regarding features that are “adjunct to basic” services—are relevant to our analysis, as discussed further

below, because the Commission’s definition of “adjunct to basic” services has been instrumental in

determining which functions fall within the “telecommunications systems management” exception to the

“information service” definition.

70. We tentatively conclude that both a reasonable and the best reading of these definitional

provisions supports classifying BIAS as a telecommunications service. As explained in the 2015 Open

Internet Order, “the critical distinction between a telecommunications and an information service turns on

what the provider is ‘offering.’”

240

If the provider is offering “telecommunications” to the public for a

fee, then the service is necessarily a telecommunications service.

241

Thus, in 2015, the Commission

237

In 1966, the Commission initiated its Computer Inquiries “to ascertain whether the services and facilities offered

by common carriers are compatible with the present and anticipated communications requirements of computer

users.” Regulatory & Policy Problems Presented by the Interdependence of Computer & Comm. Servs., Docket No.

16979, Notice of Inquiry, 7 FCC 2d 11, 11-12, para. 2 (1966) (Computer I Notice of Inquiry) (subsequent history

omitted). In the Computer II and Computer III decisions, the Commission required telephone companies that

provided “enhanced services” over their own transmission facilities to separate out and offer on a common carrier

basis the transmission component underlying their enhanced services. Amendment of Section 64.702 of the

Comm’n’s Rules & Regs, Second Computer Inquiry, Final Decision, 77 FCC 2d 384, 417-35, 461-75, paras. 86-132,

201-31 (1980) (Computer II Final Decision), aff’d sub nom. Computer & Commc’ns Indus. Ass’n v. FCC, 693 F.2d

198 (D.C. Cir. 1982); Amendment of Section 64.702 of the Comm’n’s Rules & Regs. (Third Computer Inquiry), CC

Docket No. 85-229, Phase I, Report and Order, 104 FCC 2d 958, para. 4 (1986) (Computer III Phase I Order),

recon., 2 FCC Rcd 3035 (1987) (Computer III Phase I Reconsideration Order), further recon., 3 FCC Rcd 1135

(1988) (Computer III Phase I Further Reconsideration Order), second further recon., 4 FCC Rcd 5927 (1989)

(Computer III Phase I Second Further Reconsideration Order); Phase I Order and Phase I Recon. Order vacated

sub nom. California v. FCC, 905 F.2d 1217 (9th Cir. 1990) (California I); CC Docket No. 85-229, Phase II, 2 FCC

Rcd 3072 (1987) (Computer III Phase II Order), recon., 3 FCC Rcd 1150 (1988) (Computer III Phase II

Reconsideration Order), further recon., 4 FCC Rcd 5927 (1989) (Phase II Further Reconsideration Order); Phase

II Order vacated, California I, 905 F.2d 1217 (9th Cir. 1990); Computer III Remand Proceeding, CC Docket No.

90-368, 5 FCC Rcd 7719 (1990) (ONA Remand Order), recon., 7 FCC Rcd 909 (1992), pets. for review denied sub

nom. California v. FCC, 4 F.3d 1505 (9th Cir. 1993) (California II); Computer III Remand Proceedings: Bell

Operating Company Safeguards and Tier 1 Local Exchange Company Safeguards, CC Docket No. 90-623, 6 FCC

Rcd 7571 (1991) (BOC Safeguards Order), BOC Safeguards Order vacated in part and remanded sub nom.

California v. FCC, 39 F.3d 919 (9th Cir. 1994) (California III), cert. denied, 514 U.S. 1050 (1995); Computer III

Further Remand Proceedings: Bell Operating Company Provision of Enhanced Services, CC Docket No. 95-20,

Notice of Proposed Rulemaking, 10 FCC Rcd 8360 (1995) (Computer III Further Remand Notice), Further Notice

of Proposed Rulemaking, 13 FCC Rcd 6040 (1998) (Computer III Further Remand Further Notice); Report and

Order, 14 FCC Rcd 4289 (1999) (Computer III Further Remand Order), recon., 14 FCC Rcd 21628 (1999)

(Computer III Further Remand Reconsideration Order).

238

See Computer II Final Decision, 77 FCC 2d at 475, para. 231; see also Wireline Broadband Classification Order,

20 FCC Rcd at 14866-68, para. 24. We note that a large number of rural local exchange carriers (LECs) have also

chosen to offer broadband transmission service as a telecommunications service subject to the provisions of Title II.

239

See, e.g., Wireline Broadband Classification Order, 20 FCC Rcd at 14858, para. 5.

240

2015 Open Internet Order, 30 FCC Rcd at 5757, para. 355.

241

Id.

Federal Communications Commission FCC 23-83

interpreted these terms to classify BIAS as a telecommunications service, finding that BIAS, as then

offered, is sufficiently independent from the information services that ISPs may also offer.

242

Consistent

with the Commission’s finding in 2015, we believe that BIAS is best understood as making available

high-speed access to the Internet (that may be bundled with other applications and functions)—and

therefore that it provides telecommunications

243

—and that ISPs offer BIAS to the public for a fee.

Accordingly, we tentatively conclude the best reading of the Act is that BIAS, as offered to and

understood by consumers today, is a telecommunications service rather than an information service. We

seek comment on this tentative conclusion.

71. Broadband Internet Access Service Provides Telecommunications. We tentatively

conclude that BIAS provides “telecommunications” as it is defined under the Act, and seek comment on

this conclusion. As discussed above, the Act defines “telecommunications” as “the transmission, between

or among points specified by the user, of information of the user’s choosing, without change in the form

or content of the information as sent and received.”

244

As discussed above,

245

we believe that users rely

on BIAS to transmit “information of the user’s choosing,” “between or among points specified by the

user.”

246

We further believe, as the Commission has previously found, that the term “points specified by

the user” is ambiguous, and that “uncertainty concerning the geographic location of an endpoint of

communication is irrelevant for the purpose of determining whether a broadband Internet access service is

providing ‘telecommunications.’”

247

We also contend that these points are not constrained to be defined

in one particular format. They may be in the form of an IP address or perhaps more commonly associated

with fully qualified domain names resolved by the DNS, such as www.example.com. This is consistent

with the Commission’s prior deduction that while consumers often do not know the precise physical or

virtual location of the edge provider or other user they want to access, “there is no question that users

specify the end points of their Internet communications” and “would be quite upset if their Internet

communications did not make it to their intended recipients or the website addresses they entered into

their browser would take them to unexpected web pages.”

248

As the Commission explained, “numerous

forms of telephone service qualify as telecommunications even though the consumer typically does not

know the geographic location of the called party,” including cell phone service, toll free 800 service, and

call bridging service.

249

Likewise, the fact that DNS may resolve the same domain name to one or more

virtual locations (e.g., due to load balancing), just as in the toll free arena a single telephone number may

route to multiple locations, “does not transform that service to something other than

telecommunications.”

250

In the RIF Order, the Commission conceded that at least some

telecommunications are used as an input into BIAS and “an ISP makes use of telecommunications” in the

provision of BIAS, but found that it “need not further address the scope of the ‘telecommunications’

definition in order to justify [its] classification of broadband Internet access service,” and did not further

address the Commission’s interpretation and application of the “telecommunications” definition in the

242

Id. at 5757-58, para. 356.

243

Id.; see also Brand X, 545 U.S. at 1008 (Scalia, J., dissenting) (quoting Inquiry Concerning High-Speed Access to

the Internet Over Cable and Other Facilities; Internet Over Cable Declaratory Ruling; Appropriate Regulatory

Treatment for Broadband Access to the Internet Over Cable Facilities, GN Docket No. 00-785, CS Docket No. 02-

52, Declaratory Ruling and Notice of Proposed Rulemaking, 17 FCC Rcd 4798, 4799, para. 1 (2002)).

244

47 U.S.C. § 153(50).

245

See supra section A; see also 2015 Open Internet Order, 30 FCC Rcd at 5761, para. 361.

246

47 U.S.C. § 153(50).

247

2015 Open Internet Order, 30 FCC Rcd at 5761-62, para. 361.

248

Id.

249

Id.

250

Id.

Federal Communications Commission FCC 23-83

2015 Open Internet Order.

251

We seek comment on the analysis that BIAS provides

“telecommunications,” including whether there is any reason to depart from it.

72. We further tentatively conclude that there is no change or modification to the form or

content of information during transmission, and seek comment on this analysis. In 2015, the Commission

explained that “the packet payload (i.e., the content requested or sent by the user) is not altered by the

variety of headers that a provider may use to route a given packet” and therefore, the “form and content of

the information” is the same when an IP packet is sent by the sender as when the same packet is received

by the recipient.

252

We seek comment on whether this analysis of packet transmission remains accurate

and relevant today. Have there been any developments or changes in how BIAS is provisioned that

would cause us to reconsider this analysis? How do ISPs transmit data information from one point on the

network to another? How does it differ from how PSTN calls are transmitted today?

73. Broadband Internet Access Service is a Telecommunications Service. Here, we propose

to build off our tentative conclusion that BIAS provides telecommunications and our belief that current

factual circumstances show that consumers perceive BIAS as a standalone offering used to access third-

party services and, as such, ISPs routinely market BIAS widely to the general public.

253

Viewed together,

ISPs would necessarily offer BIAS “for a fee directly to the public, or to such classes of users as to be

effectively available directly to the public, regardless of the facilities used,”

254

and therefore we

tentatively conclude that BIAS is a telecommunications service as defined in the Act. We seek comment

on our tentative conclusion and assessment. We further propose to find that the implied promise to make

arrangements for exchange of Internet traffic as part of the BIAS offering does not constitute a private

carriage arrangement, and that the rationale adopted in the 2015 Open Internet Order remains

persuasive.

255

We seek comment on this approach. How do Internet traffic arrangements with negotiated

terms differ from mass-market services offered to the public? Have there been any significant

developments in the Internet traffic exchange market since 2015 that would cause us to reconsider these

proposals? We observe that in 2015, the Commission concluded that “some individualization in pricing

or terms is not a barrier to finding that a service is a telecommunications service,”

256

and the RIF Order

does not appear to disturb this finding. We seek comment on this analysis.

74. Broadband Internet Access Service Is Not Best Classified an Information Service. We

tentatively conclude that, as offered today, BIAS is not an information service under the best reading of

the Act. The Act defines an information service as the offering “of a capability for generating, acquiring,

storing, transforming, processing, retrieving, utilizing, or making available information via

telecommunications.”

257

We believe that the Commission’s reasoning in the RIF Order—that because

BIAS has the “capability” to be used to engage in the activities within the information service definition,

it is best interpreted as an information service

258

—is flawed. Concluding that BIAS “is an information

service irrespective of whether it provides the entirety of any end user functionality or whether it provides

251

RIF Order, 33 FCC Rcd at 341-43, para. 52.

252

2015 Open Internet Order, 30 FCC Rcd at 5762-63, para. 362.

253

See supra section A.

254

47 U.S.C. § 153(53) (defining “telecommunications service”).

255

2015 Open Internet Order, 30 FCC Rcd at 5764-65, para. 364 (explaining that ISPs have “voluntarily undertaken

an obligation to arrange to transfer that traffic on and off its network,” thus holding themselves out to carry all edge

provider traffic to customers regardless of source and regardless of whether the edge provider has a specific

arrangement with the broadband provider, and that “[m]erely asserting that the traffic exchange component of the

service may have some individualized negotiation does not alter the nature of the underlying service”).

256

2015 Open Internet Order, 30 FCC Rcd at 5763-64, para. 363.

257

47 U.S.C. § 153(24).

258

RIF Order, 33 FCC Rcd at 322-25, paras. 30-32.

Federal Communications Commission FCC 23-83

end user functionality in tandem with edge providers,”

259

as the Commission did in the RIF Order, fails to

recognize the relationship of BIAS transmission services to other functions, which may be offered by

either the ISP or a third party of the end user’s choice.

260

Logically, under the framework set out in the

RIF Order, even traditional switched telephone service would be classified as an information service, as it

provides customers with the ability to make information available to others (e.g., public service

announcements), retrieve information from others, and process and utilize stored information from others

(e.g., by interacting with a call menu). We tentatively conclude that the best and more reasonable

interpretation of the statutory language is that BIAS is a telecommunications service, while the

applications that run over BIAS either constitute distinct information services or fall within the exception

to the information service definition for capabilities used “for the management, control, or operation of a

telecommunications system or the management of a telecommunications service.”

261

We seek comment

on this proposed analysis.

75. We tentatively conclude that companion services, such as DNS and caching, when

provided with BIAS, fit within the telecommunications systems management exception to the definition

of “information service,” and therefore when these services are provided with BIAS, they do not convert

BIAS into an information service. We seek comment on this tentative conclusion. The Act’s

telecommunications systems management exception excludes from the definition of “information service”

“any use of any such capability for the management, control, or operation of a telecommunications

system or the management of a telecommunications service.”

262

In the 2015 Open Internet Order, the

Commission concluded that when DNS and caching are offered with BIAS, they “either fall within the

telecommunications systems management exception or are separate offerings that are not inextricably

integrated with broadband Internet access service, or both.”

263

In the RIF Order, the Commission took a

contrary view, concluding that “DNS and caching functionalities . . . offered by ISPs[] are integrated

information processing capabilities offered as part of broadband Internet access service to consumers

today.”

264

On review of the RIF Order, Judge Millet explained in her concurrence that “the question is

whether the combination of transmission with DNS and caching alone can justify the information service

classification. If we were writing on a clean slate, that question would seem to have only one answer

given the current state of technology: No.”

265

She added that “new factual developments call[ed] for

serious technological reconsideration and engagement through expert judgment. Instead, the

Commission’s exclusive reliance on DNS and caching blinkered itself off from modern broadband reality,

and untethered the service ‘offer[ed]’ from both the real-world marketplace and the most ordinary of

linguistic conventions.”

266

We intend to guide our decisionmaking about the role of DNS and caching

based on today’s broadband reality, and we seek information on the present circumstances.

76. We tentatively conclude that the Commission’s 2015 analysis provides the more

reasonable application of the relevant statutory terms and Commission precedent to DNS functionality

259

Id. at 323-24, para. 31.

260

See id. at 339, para. 50.

261

47 U.S.C. § 153(24).

262

Id.

263

2015 Open Internet Order, 30 FCC Rcd at 5765, para. 365.

264

RIF Order, 33 FCC Rcd at 325, para. 33.

265

Mozilla, 940 F.3d at 90 (Millett, J., concurring); see also id. at 94-95 (Wilkins, J., concurring) (“As Judge

Millett’s concurring opinion persuasively explains, we are bound by the Supreme Court’s decision in [Brand X],

even though critical aspects of broadband Internet technology and marketing underpinning the Court’s decision have

drastically changed since 2005.”).

266

Mozilla, 940 F.3d at 91 (Millett, J., concurring).

Federal Communications Commission FCC 23-83

with respect to BIAS,

267

and we seek comment on this tentative conclusion. In the 2015 Open Internet

Order, the Commission analogized DNS to adjunct-to-basic services,

268

such as speed dialing, call

forwarding, and computer-provided directory assistance, and concluded that because it is effectively

equivalent to routing information and does not alter the fundamental character of the telecommunications

service, it falls within the telecommunications systems management exception to the definition of

“information service.”

269

The RIF Order rejected the adjunct-to-basic comparison largely based on its

contention that adjunct-to-basic services and the telecommunications systems management exception

must be viewed narrowly, effectively to only include functions that solely facilitate transmission.

270

Because it concluded that DNS, as then used, is a core function of BIAS that provides more than a

functionally integrated address-translation capability, it determined that DNS did not fall within the

exception.

271

We tentatively disagree with the RIF Order’s narrow characterization of adjunct-to-basic

services and the telecommunications systems management exception as not mandated by the statutory

language; however, even under that unnecessarily narrow characterization, we believe DNS would fall

under the telecommunications management exception, as its fundamental purpose is to route

information—i.e., to facilitate transmission.

77. We further believe that even if DNS did not fall within the telecommunications systems

management exception to the Act’s definition of “information services,” it is not so inextricably

intertwined so as to convert the entire BIAS offering into an information service, consistent with the

Commission’s finding in 2015.

272

In support of the 2015 Open Internet Order’s conclusion, the

Commission explained that IP packet transfer can work without DNS and that DNS lookup is available

through third parties.

273

In the RIF Order, the Commission argued that even though DNS can also be

provided by third parties, the focus should remain on the capabilities that ISPs offer, which it concluded is

a single, inextricably intertwined information service.

274

However, in her Mozilla concurrence, Judge

Millet noted that “DNS, much like email, is now free and widely available to consumers in the Internet

marketplace.”

275

We tentatively conclude that the 2015 Open Internet Order’s showing that DNS is not a

necessary component of BIAS, which the RIF Order did not dispute, provides the better rationale for

evaluating whether DNS transforms the entire BIAS offering into an information service, and tentatively

267

2015 Open Internet Order, 30 FCC Rcd at 5765-69, paras. 366-69.

268

“Adjunct-to-basic” functions were those features and services that met the literal definition of “enhanced service”

but did not alter the fundamental character of the associated basic transmission service and thus were treated as basic

(i.e., telecommunications) services even though they went beyond mere transmission. See Computer II Final

Decision, 77 FCC 2d at 421, para. 98; AT&T Corp. Petition for Declaratory Ruling Regarding Enhanced Prepaid

Calling Card Services, Regulation of Prepaid Calling Card Services, WC Docket Nos. 03-133 and 05-68, Order and

Notice of Proposed Rulemaking, 20 FCC Rcd 4826, 4831, para. 16 (2005), aff’d, AT&T Corp. v. FCC, 454 F.3d 329

(D.C. Cir. 2006); Non-Accounting Safeguards Order, Report and Order and Further Notice of Proposed

Rulemaking, 11 FCC Rcd 21905, 21958, para. 107 n.245 (1997); North American Telecommunications Association

Petition for Declaratory Ruling Under §64.702 of the Commission’s Rules Regarding the Integration of Centrex,

Enhanced Services, and Customer Premises Equipment, 101 FCC 2d 349, 360, para. 26 (1985). The Commission

has held that such functions: (1) must be “incidental” to an underlying telecommunications service—i.e., “‘basic’ in

purpose and use” in the sense that they facilitate use of the network; and (2) must “not alter the fundamental

character of [the telecommunications service].” See id. at 359-61, paras. 24, 27, 28.

269

2015 Open Internet Order, 30 FCC Rcd at 5765-69, paras. 366-69.

270

RIF Order, 33 FCC Rcd at 331, para. 39.

271

Id. at 326-27, para. 34.

272

See 2015 Open Internet Order, 30 FCC Rcd at 5769-70, para. 370.

273

See id.

274

RIF Order, 33 FCC Rcd at 338-39, paras. 49-50.

275

Mozilla, 940 F.3d at 90 (Millett, J., concurring).

Federal Communications Commission FCC 23-83

conclude that it does not. We seek comment on this tentative conclusion. Does the Commission’s 2015

analysis of DNS as it relates to BIAS remain relevant, accurate, and persuasive? Why or why not? Are

there any technical or commercial developments that should cause us to reconsider this analysis?

78. For the same reasons the Commission found in 2015, we believe that caching,

276

when

provided in connection with BIAS, is “used to facilitate the transmission of information so that users can

access other services, in this case by enabling the user to obtain ‘more rapid retrieval of information’

through the network,” and thus falls within the telecommunications systems management exception. We

seek comment on this analysis. The Commission concluded otherwise in the RIF Order, finding that

“ISP-provided caching does not merely ‘manage’ an ISP’s broadband Internet access service and

underlying network, it enables and enhances consumers’ access to and use of information online” and that

because it is “useful to the consumer,” caching does not fall within the telecommunications systems

management exception.

277

However, we do not believe consumers consider caching capabilities when

purchasing BIAS. We seek comment regarding the technical and commercial aspects of caching, how

caching functionality is both provisioned by ISPs and offered to customers, as well as the relevance (if

any) of Commission precedent as applied to caching today.

79. In particular, given that web pages today change constantly and are often customized on a

per-user basis, we question whether ISPs cache popular content requested by multiple users to supply the

same web page when requested later, rather than fetching the page anew. Further, as Judge Millett

observed in Mozilla, caching “does not work when users employ encryption,” which as of 2017

constituted a majority of Internet traffic, which suggests “that caching no longer enjoys the pride of place

ascribed to it” by the RIF Order.

278

We seek comment on whether ISPs use this practice and, to the

extent that commenters contend they do, why (given the ever-changing nature and high customization of

contemporary web pages). In addition, should the Commission distinguish between caching by ISPs and

the kind of caching that third-party content providers use to keep copies of content (such as videos and

images, but possibly also web pages) closer to users? We preliminarily conclude that caching of this kind

is not provided by ISPs and thus is not a part of BIAS, and as such does not transform BIAS into an

information service.

80. We also seek comment on whether there are other functionalities provided or offered

with BIAS, besides DNS and caching, that might fall into the telecommunications systems management

exception, as well as on other add-on information services offered in conjunction with BIAS and how

they might affect our analysis with respect to the classification of BIAS. The 2015 Open Internet Order

identified examples of processing-related capabilities that fall within the telecommunications systems

management functions, such as security virus protection and blocking denial of service attacks,

279

as well

as add-on information services such as cloud-based storage services, email, and spam protection that were

often offered in conjunction with BIAS but were not inextricably intertwined with it.

280

Consistent with

the Commission’s finding in 2015, we propose that “such services are not inextricably intertwined with

[BIAS], but rather are a product of the provider’s marketing decision not to offer the two separately,”

281

and seek comment on this proposal. We believe that, to the extent BIAS is offered along with other

capabilities that would otherwise fall into the “information service” definition, such an offering does not

turn BIAS into a functionally integrated information service. Are there examples of other information

276

Caching is the storing of copies of content at locations in the network closer to subscribers than their original

sources.

277

RIF Order, 33 FCC Rcd at 332-33, para. 42.

278

Mozilla, 940 F.3d at 91 (Millett, J., concurring).

279

2015 Open Internet Order, 30 FCC Rcd at 5771-72, para. 373.

280

Id. at 5773, paras. 376-77.

281

Id. at 5773, para. 376 (internal quotations omitted); see Brand X, 545 U.S. at 1009 & n.4 (Scalia, J., dissenting).

Federal Communications Commission FCC 23-83

services or capabilities that are often offered by ISPs in conjunction with BIAS? How do consumers view

and use these products in relation to their BIAS subscription? How has the market for third-party

information services offered in tandem with BIAS developed since the RIF Order was adopted? We also

seek comment on any devices or applications, such as Wi-Fi hotspots, wearables, appliances, and other

IoT devices that an ISP may include with its BIAS offering and how they may function both in

conjunction with and apart from the underlying BIAS. How does a secondary market for such devices

and applications impact our interpretation that they are separable information services?

81. Major Questions Doctrine Applicability. We seek comment on whether, and if so how,

the major questions doctrine—the notion that Congress is expected to speak clearly when delegating

authority in certain extraordinary cases

282

—should inform the conclusions we reach based on the text and

structure of the Act. In the USTA decision, the D.C. Circuit reasoned that Brand X conclusively held that

the Commission has the authority to determine the proper statutory classification of BIAS and that its

determinations are entitled to deference, and so there is no need to consult the major questions doctrine

here.

283

In opinions respecting the denial of rehearing en banc, several judges debated how (if at all) the

major questions doctrine would otherwise apply to the issue.

284

The RIF Order did not directly dispute

this conclusion, but stated that the doctrine supported its decision to classify BIAS as an information

service in order to steer clear of any major questions doctrine issues.

285

82. What factors are relevant to the Commission’s consideration of whether the major

questions doctrine applies to the classification of BIAS, taking account of evolving Supreme Court

precedent? Among other factors, we ask that commenters consider the extent to which this matter falls

within the Commission’s recognized expertise and authority as the federal regulator responsible for

“regulating interstate and foreign commerce in communications by wire and radio so as to make

available, so far as possible, . . . wire and radio communications service with adequate communications

facilities at reasonable charges.”

286

In light of relevant Commission precedent, both before and shortly

after Congress adopted the 1996 Act, classifying analogous transmission services—including the

transmission component of broadband Internet access service offered via digital subscriber line (DSL)—

as common carrier services,

287

what basis is there, if any, for concluding that the Commission’s proposed

classification action here is an exercise of “newfound power” not previously recognized?

288

Has

Congress acted or failed to act on proposals to clarify the proper classification of broadband in subsequent

years, and to what extent does such action or inaction inform the Commission’s exercise of its claimed

classification authority or the application of the major questions doctrine?

289

83. We also seek comment on how and to what extent each relevant factor should affect the

Commission’s analysis of whether the classification of BIAS implicates the major questions doctrine.

282

See, e.g., Biden v. Nebraska, 143 S. Ct. 2355, 2372-75 (2023); West Virginia v. EPA, 142 S. Ct. 2587, 2606-14

(2022); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000).

283

USTA, 825 F.3d at 704; see also U.S. Telecom Ass’n v. FCC, 855 F.3d at 383-88 (Srinivasan, J., and Tatel, J.,

concurring in the denial of rehearing en banc).

284

Compare U.S. Telecom Ass’n v. FCC, 855 F.3d at 383 (Srinivasan, J., and Tatel, J., concurring in the denial of

rehearing en banc) (“The question posed by the doctrine is whether the FCC has clear congressional authorization to

issue the rule. The answer is yes.”), with id. at 402-08 (Brown, J., dissenting from the denial of rehearing en banc)

and id. at 417-26 (Kavanaugh, J., dissenting from the denial of rehearing en banc).

285

RIF Order, 33 FCC Rcd at 407-408, para. 161

286

47 U.S.C. § 151; see West Virginia v. EPA, 142 S. Ct. at 2612-13 (considering whether an agency has

“‘comparative expertise’ in making [the] policy judgments” at issue).

287

See supra para. 69.

288

See West Virginia v. EPA, 142 S. Ct. at 2610-12.

289

See West Virginia v. EPA, 142 S. Ct. at 2614.

Federal Communications Commission FCC 23-83

Commenters should consider how the relevant factors apply to the specific proposals here. For example,

should the Commission evaluate the applicability of the major questions doctrine for BIAS as a whole, or

should it distinguish between or among particular categories of BIAS offerings? How would the major

questions doctrine apply in the case of particular rules we might adopt if we determine BIAS meets a

given statutory classification?

84. Separately, even assuming arguendo that the major questions doctrine were applied to

our classification of BIAS, we seek comment on whether Congress has spoken sufficiently clearly in the

Act—in definitional provisions or more generally—to satisfy that standard.

290

E. Classifying Mobile Broadband Internet Access Service as a Commercial Mobile

Service

85. In addition to our proposed return to the 2015 Open Internet Order’s classification of

BIAS as a telecommunications service, we propose to return to that Order’s classification of mobile

BIAS as a commercial mobile service.

291

In the alternative, even if mobile BIAS does not meet the

definition of “commercial mobile service,” we propose to find that it is the functional equivalent of a

commercial mobile service and, therefore, not private mobile service.

86. Section 332(d)(1) of the Act defines “commercial mobile service” as “any mobile service

. . . that is provided for profit and makes interconnected service available (A) to the public or (B) to such

classes of eligible users as to be effectively available to a substantial portion of the public, as specified by

regulation by the Commission.”

292

As an initial matter, we tentatively conclude that mobile BIAS is a

“mobile service” because subscribers access the service through their mobile devices. Next, we

tentatively conclude that mobile BIAS is provided “for profit” because ISPs offer it to subscribers with

the intent of receiving compensation. We also tentatively conclude that mobile BIAS is widely available

to the public, without restriction on who may receive it.

87. We also propose to return to the 2015 Open Internet Order’s determination that mobile

BIAS is an interconnected service.

293

Section 332(d)(2) states that the term “interconnected service”

means “service that is interconnected with the public switched network (as such terms are defined by

regulation by the Commission). . . .”

294

In the 2015 Open Internet Order, the Commission reached the

conclusion that mobile BIAS was an interconnected service through the application of an updated

definition of “public switched network” that included networks that use public IP addresses.

295

In doing

so, the Commission highlighted the Commission’s longstanding determination from the Second CMRS

Report and Order that the term “public switched network” “should not be defined in a static way” as “the

290

See U.S. Telecom Ass’n v. FCC, 855 F.3d at 383 (Srinivasan, J., and Tatel, J., concurring in the denial of

rehearing en banc) (“Assuming . . . that the rule in this case qualifies as a major one so as to bring the doctrine into

play, the question posed by the doctrine is whether the FCC has clear congressional authorization to issue the rule.

The answer is yes.”). The 1996 Act incorporated the relevant statutory definitions in the Act, which the

Commission has broad authority to implement. See, e.g., 47 U.S.C. §§ 154(i), 201(b), 303(r); see also City of

Arlington, 569 US at 293, 307 (2013). The 1996 Act also required the Commission to adopt rules or orders that

turned on the interpretation of those statutory definitions. See, e.g., 47 U.S.C. §§ 160, 224, 251, 253, 254.

291

2015 Open Internet Order, 30 FCC Rcd at 5778-90, paras. 388-408.

292

47 U.S.C. § 332(d)(1).

293

2015 Open Internet Order, 30 FCC Rcd at 5779-5788, paras. 390-402.

294

47 U.S.C. § 332(d)(2). By stating that the terms “interconnected service” and “public switched network” shall be

defined by regulation by the Commission, the statute expressly delegates to the Commission the authority to define

these terms.

295

2015 Open Internet Order, 30 FCC Rcd at 5779-86, paras. 391-99.

Federal Communications Commission FCC 23-83

network is continuously growing and changing because of new technology and increasing demand.”

296

The Commission reversed course in the RIF Order, reinstating the prior definition of “public switched

network.”

297

We believe the Commission’s decision in the RIF Order fails to align with the technological

reality and widespread use of mobile BIAS. The ubiquity of mobile BIAS that the Commission

recognized in 2015 is even more pronounced today, as mobile broadband networks have continued to

develop and grow in the intervening years, with more users and increased mobile data traffic. In 2022,

there was more than 73 trillion megabytes of mobile data traffic exchanged in the United States,

representing a 38 percent increase from the previous year.

298

Continued growth of mobile BIAS is

expected, with one forecast predicting that there will be 410 million 5G mobile subscriptions in North

America by 2028.

299

In light of these factors, we propose to return to the 2015 Open Internet Order’s

modernized definition of “public switched network” in section 20.3 of the Commission’s rules,

300

specifically defining the term to mean “the network that includes any common carrier switched network,

whether by wire or radio, including local exchange carriers, interexchange carriers, and mobile service

providers, that use[s] the North American Numbering Plan, or public IP addresses, in connection with the

provision of switched services.”

301

We believe this definition, which includes IP addresses, embodies the

current technological landscape and the widespread use of mobile broadband networks, and is therefore

more consistent with the Commission’s recognition that the public switched network will grow and

change over time. We seek comment on this analysis and our proposed approach.

88. We further propose to reach the same conclusion the Commission did in the 2015 Open

Internet Order that mobile BIAS is interconnected with the “public switched network,” as we propose to

define it today.

302

The 2015 Open Internet Order found that mobile BIAS should be considered

interconnected because it was a broadly available mobile service that provided users with the ability to

send and receive communications to all other users of the Internet.

303

Given the “universal access” and

expected future growth of mobile BIAS, the 2015 Open Internet Order determined that finding mobile

BIAS to be interconnected and a commercial mobile service was consistent with Congress’ objective in

section 332 of the Act in creating a symmetrical regulatory framework among similar mobile services that

were available to the public.

304

Mobile BIAS remains a broadly available mobile service that provides its

users with the ability to send and receive communications and is an essential component of today’s

technology landscape. As discussed above, there has been a marked increase in the amount of mobile

data traffic in recent years, and continued growth is predicted. Given the continued widespread use and

availability of mobile BIAS, we propose to find that mobile BIAS is an interconnected service, and

296

Id. at 5779, para. 391 (citing Second Report and Order Implementing Sections 3(n) and 332 of the

Communications Act, as Amended by Section 6002(b) of the Omnibus Reconciliation Act of 1993, GN Docket No.

93-252, Second Report and Order, 9 FCC Rcd 1411, 1436, para. 59 (1994) (Second CMRS Report and Order)). For

example, services that use 4G and 5G technology are now IP-based and leverage broadband architecture.

297

RIF Order, 33 FCC Rcd at 355, para. 75.

298

CTIA, 2023 Annual Survey Highlights (July 25, 2023), https://www.ctia.org/news/2023-annual-survey-

highlights.

299

Ericsson, Wireless Mobility Report (June 2023), https://www.ericsson.com/en/reports-and-papers/mobility-

report/reports/june-2023.

300

47 CFR § 20.3 (definition of “public switched network”).

301

2015 Open Internet Order, 30 FCC Rcd at 5779, para. 391.

302

Id. at 5785-86, para. 398.

303

Id. at 5785-86, paras. 398-99.

304

Id.

Federal Communications Commission FCC 23-83

propose to support this finding by applying the Commission’s analysis from the 2015 Open Internet

Order

305

to today’s marketplace. We seek comment on our proposed approach.

89. We also propose to rely on the Commission’s analysis from the 2015 Open Internet

Order that mobile BIAS is an interconnected service for the additional reason that it provides users with

the capability to communicate with other users of the Internet and with people using telephone numbers

through VoIP applications.

306

The 2015 Open Internet Order found that “users on mobile networks can

communicate with users on traditional copper based networks and IP based networks, making more and

more networks using different technologies interconnected.”

307

It further identified mobile VoIP, as well

as over-the-top mobile messaging, as “among the increasing number of ways in which users communicate

indiscriminately between [North American Numbering Plan (NANP)] and IP endpoints on the public

switched network.”

308

Since 2015, mobile BIAS users continue to communicate using these tools, with

85 percent of Americans owning a smartphone that offers access to VoIP and over-the-top

communications apps.

309

We seek comment on whether there have been any material changes in

technology, the marketplace, or other facts that would warrant refinement or revision of the analysis

regarding the interconnected nature of mobile BIAS from the 2015 Open Internet Order.

90. In connection with this approach, we seek comment on whether we should readopt the

2015 Open Internet Order’s revised definition of “interconnected service” in section 20.3 of the

Commission’s rules.

310

That Order defined “interconnected service” to mean a service that gives

subscribers the ability to “communicate to or receive communications from other users of the public

switched network,” removing the requirement that such service provide the ability to communicate with

all other users of the public switched network.

311

It did so to ensure that services that provide the

capability to access all other users, including through the use of OTT services, but limit that access in

certain limited ways, are not excluded from the definition of “interconnected service.”

312

The RIF Order

reverted to the prior definition, concluding that “the best reading of ‘interconnected service’ is one that

enables communication between its users and all other users of the public switched network” and that the

service “must itself provide interconnection to the public switched network using the NANP.”

313

We seek

comment on whether it is necessary to return to the definition of “interconnected service” in the 2015

Open Internet Order to ensure that all appropriate services are covered by the definition.

91. Because we also propose to reclassify mobile BIAS as a telecommunications service, we

believe that classifying it as a commercial mobile service would avoid the inconsistency that would result

if the service were both a telecommunications service and a private service. The Commission explained

this reasoning in the 2015 Open Internet Order, and we propose to adopt a consistent rationale here.

314

The Commission stated that, because it determined mobile BIAS to be a telecommunications service,

“designating it also as commercial mobile service subject to Title II is most consistent with Congressional

305

Id. at 5779-88, paras. 390-402.

306

Id. at 5786-87, paras. 400-401.

307

Id. at 5787, para. 401.

308

Id.

309

Pew Research Center, Mobile Fact Sheet (Apr. 7, 2021), https://www.pewresearch.org/internet/fact-

sheet/mobile/.

310

2015 Open Internet Order, 30 FCC Rcd at 5778-88, para. 402 n.1175; 47 CFR § 20.3.

311

2015 Open Internet Order, 30 FCC Rcd at 5778-88, para. 402 n.1175.

312

See id. at 5787-88, para. 402.

313

See RIF Order, 33 FCC Rcd at 356-57, 358, paras. 77, 80.

314

2015 Open Internet Order, 30 FCC Rcd at 5788, para. 403.

Federal Communications Commission FCC 23-83

intent to apply common carrier treatment to telecommunications services.”

315

The Commission found

that classifying mobile BIAS as a commercial mobile service was necessary “to avoid a statutory

contradiction that would result if the Commission were to conclude both that mobile broadband Internet

access was a telecommunications service and also that it was not a commercial mobile service. A

statutory contradiction would result from such a finding because, while the Act requires that providers of

telecommunications services be treated as common carriers, it prohibits common carrier treatment of

mobile services that do not meet the definition of commercial mobile service. Finding mobile broadband

Internet access service to be commercial mobile service avoids this statutory contradiction and is most

consistent with the Act’s intent to apply common carrier treatment to providers of telecommunication

services.”

316

We seek comment on this proposal.

92. In the alternative, to the extent that mobile BIAS falls outside the definition of

“commercial mobile service,” we propose to find that it is the functional equivalent of a commercial

mobile service and, thus, not private mobile service. The Commission found that mobile BIAS service

was functionally equivalent to commercial mobile service because, “like commercial mobile service, it is

a widely available, for profit mobile service that offers mobile subscribers the capability to send and

receive communications on their mobile device to and from the public. Although the services use

different addressing identifiers, from an end user’s perspective, both are commercial services that allow

users to communicate with the vast majority of the public.”

317

The RIF Order found that the 2015 Open

Internet Order’s focus on the public’s “ubiquitous access” to mobile BIAS alone was “insufficient” to

establish functional equivalency and that the test established in the Second CMRS Report and Order

provided a more thorough consideration of factors of whether a service is closely substitutable for a

commercial mobile service.

318

We seek comment on both of these analyses. As the RIF Order

acknowledged, however, the Commission has discretion to determine whether services are functionally

equivalent.

319

Congress expressly delegated authority to the Commission to determine whether a

particular mobile service may be the functional equivalent of a commercial mobile service, defining

“private mobile service” as “any mobile service . . . that is not a commercial mobile service or the

functional equivalent of a commercial mobile service, as specified by regulation by the Commission.”

320

For the reasons outlined in the 2015 Open Internet Order and in light of the continued increased use and

distribution of mobile broadband services and devices, we propose to find that mobile BIAS is the

functional equivalent of commercial mobile service.

321

We seek comment on this proposal and on any

other or different definition of “functional equivalent” that the Commission should adopt.

93. We anticipate that returning mobile BIAS to its classification as a commercial mobile

service and reinstating openness requirements on a larger set of mobile ISPs will allow mobile providers

that would become subject to such rules to continue to be able to compete successfully in the marketplace

and continue to have incentives to develop new products and services. For example, the Commission has

applied open access rules to upper 700 MHz C Block licensees, including Verizon Wireless, for more

than a decade, and the mobile operators subject to these requirements have continued to compete

315

Id.

316

Id.

317

Id. at 5789, para. 404.

318

RIF Order, 33 FCC Rcd at 361, para. 84 (citing Second CMRS Report and Order, 9 FCC Rcd at 1447, paras. 78,

79).

319

Id.

320

47 U.S.C. § 332(d)(3).

321

RIF Order, 33 FCC Rcd at 361, para. 84.

Federal Communications Commission FCC 23-83

successfully in the marketplace.

322

We seek comment on this view and on any policy consequences that

commenters believe may result from the proposed reclassification of mobile BIAS.

F. Preemption of State and Local Regulation of Broadband Service

94. We seek comment on how best to exercise our preemption authority to ensure that BIAS

is governed primarily by a national framework, including a uniform floor of ISP conduct rules. The RIF

Order adopted an expansive preemption decision, but the D.C. Circuit in Mozilla concluded that the RIF

Order “fail[ed] to ground its sweeping Preemption Directive . . . in a lawful source of statutory authority,”

and vacated that preemption action.

323

The D.C. Circuit concluded that “in any area where the

Commission lacks the authority to regulate, it equally lacks the power to preempt state law.”

324

A number

of states quickly stepped in to fill that void, adopting their own unique regulatory approaches for BIAS,

including their own versions of open Internet requirements, and even measures like regulation of retail

rates that the 2015 Open Internet Order found unnecessary.

325

We anticipate that our proposed regulatory

approach to BIAS will remedy the infirmities the D.C. Circuit identified in the RIF Order’s approach, and

we seek comment on the best way to use our preemption authority.

95. We seek comment on the best sources of preemption authority for us, if needed. For one,

we anticipate that the regulatory approach proposed here would give us authority to oversee BIAS under

Title II with forbearance, under Title III in the case of mobile ISPs, as well as under section 706 of the

1996 Act. These sources of authority could enable us to adopt regulations that preempt contrary state

requirements.

326

We also expect that our proposed regulatory approach could make it more

(Continued from previous page)

322

Service Rules for the 698-746, 747-762 and 777-792 MHz Bands; Revision of the Commission’s Rules to Ensure

Compatibility with Enhanced 911 Emergency Calling Systems; Section 68.4(a) of the Commission’s Rules

Governing Hearing Aid-Compatible Telephones; Biennial Regulatory Review-Amendment of Parts 1, 22, 24, 27,

and 90 to Streamline and Harmonize Various Rules Affecting Wireless Radio Services; Former Nextel

Communications, Inc. Upper 700 MHz Guard Band Licenses and Revisions to Part 27 of the Commission's Rules;

Implementing a Nationwide, Broadband, Interoperable Public Safety Network in the 700 MHz Band; Development

of Operational, Technical and Spectrum Requirements for Meeting Federal, State and Local Public Safety

Communications Requirements Through the Year 2010; Declaratory Ruling on Reporting Requirement under

Commission’s Part 1 Anti-Collusion Rule, WT Docket Nos. 07-166, 06-169, 06-150, 03-264, and 96-86, PS Docket

No. 06-229, CC Docket No. 94-102, Second Report and Order, 22 FCC Rcd at 15289, 15364, paras. 203-204; 47

CFR § 27.16.

323

Mozilla, 940 F.3d at 74. See also ACA Connects v. Bonta, 24 F.4th 1233,1241-48 (9th Cir. 2022). But see N.Y.

State Telecomms. Ass’n v. James, 544 F. Supp. 3d 269, 283 & n.10 (E.D.N.Y. 2021) (granting a preliminary

injunction of enforcement of a New York law restricting the price of BIAS for low income consumers, concluding

among other things that the petitioners were likely to succeed on the merits of their preemption claim, distinguishing

Mozilla on the theory that it only rejected the FCC’s attempted express preemption there but did not foreclose case-

by-case preemption decisions, and distinguishing the district court decision in ACA Connects based on the

understanding that the California law did not restrict BIAS prices), appeal pending, No. 21-1975 (2d Cir. argued

Jan. 12, 2023).

324

Mozilla, 940 F.3d at 75.

325

See supra note 45.

326

See, e.g., Updating the Commission’s Rules for Over-the-Air Reception Devices, WT Docket No. 19-71, Report

and Order, 36 FCC Rcd 537, 549-50, para. 25 (2021) (explaining that “[t]he Commission has used its Section 303

authority to limit State and local regulation of the placement of antennas”); Rates For Interstate Inmate Calling

Services, WC Docket No. 12-375, Third Report and Order, Order On Reconsideration, and Fifth Further Notice of

Proposed Rulemaking, 36 FCC Rcd 9519, 9617, para. 217 (2021) (discussing the Commission’s preemption

authority “where the Commission has jurisdiction under section 201(b) of the Act to regulate rates, charges, and

practices of interstate communications services”); Promoting Technological Solutions To Combat Contraband

Wireless Device Use In Correctional Facilities, GN Docket No. 13-111, Second Report and Order and Second

Further Notice of Proposed Rulemaking, 36 FCC Rcd 11813 (2021) (adopting rules requiring disabling of

contraband wireless phones and “[i]n light of this mandate that wireless providers must act upon, and pursuant to the

(continued….)

Federal Communications Commission FCC 23-83

straightforward to rely on various express preemption provisions in the Act, such as the preemption that

accompanies forbearance under section 10(e),

327

the preemption that arises when state requirements

hinder provision of services covered under sections 253 or 332(c)(7) of the Act,

328

the preemption of state

requirements contrary to federal universal service policies under section 254(f),

329

and other possible

preemption provisions. We expect that Commission decisions finding BIAS to be interstate for

regulatory purposes largely resolve possible arguments premised on the limitation on FCC authority over

state communications services under section 2(b) of the Act that otherwise could arise here.

330

We seek

comment on these views and on any additional sources of statutory authority for preemption, if needed.

96. We seek comment on how far to go in this proceeding in exercising our preemption

authority to ensure that BIAS principally is governed by a federal framework. Should we adopt a broad

preemption decision like the Commission attempted to do in the RIF Order? Or should the Commission

proceed more incrementally, such as by only addressing in this proceeding those state or local legal

requirements squarely raised in the record, and otherwise deferring to future case-by-case adjudications of

preemption?

331

Under an incremental approach, should we identify in this proceeding issues where the

Commission will decline to preempt state requirements and thereby share regulatory responsibility with

the states, such as state privacy and consumer protection laws? For what issues, if any, is the

Commission required to share regulatory responsibility with the states? What are the benefits and

drawbacks of permitting state regulation in specific issue areas? What issues may benefit most from

shared regulatory responsibility with states?

97. We also seek comment on how best to define the scope of preemption to ensure that

BIAS is principally governed by a federal framework. For example, should open Internet conduct rules

of the sort proposed below

332

be seen not only as an appropriate nationwide floor providing those

protections to everyone, but also as an appropriate ceiling to reflect the balancing of relevant policy

considerations? The 2015 Open Internet Order stated that “should a state elect to restrict entry into the

broadband market through certification requirements or regulate the rates of BIAS through tariffs or

Commission’s well-established authority, we preempt any state liability for wireless provider disabling actions that

comply with our rules”); Implementation of the Telecommunications Act of 1996, et al., CC Docket Nos. 96-115 and

96-149, Second Report and Order and Further Notice of Proposed Rulemaking, 13 FCC Rcd 8061, para. 18 (1999)

(providing guidance that “[s]tate rules that likely would be vulnerable to preemption would include those permitting

greater carrier use of CPNI than section 222 and our implementing regulations announced herein, as well as those

state regulations that sought to impose more limitations on carriers’ use”); see also Louisiana PSC v. FCC, 476 U.S.

355, 369 (1986) (“Pre-emption may result not only from action taken by Congress itself; a federal agency acting

within the scope of its congressionally delegated authority may pre-empt state regulation.”).

327

47 U.S.C. § 160(e).

328

47 U.S.C. §§ 253, 332(c)(7).

329

47 U.S.C. § 254(f).

330

47 U.S.C. § 152(b) (stating in pertinent part that “[e]xcept as provided in sections 223 through 227 of this title,

inclusive, section 276 of this title, and section 332 of this title, and subject to the provisions of section 301 of this

title and subchapter V–A, nothing in this chapter shall be construed to apply or to give the Commission jurisdiction

with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with

intrastate communication service by wire or radio of any carrier, . . .”); see also Pub. Serv. Comm’n of Maryland v.

FCC, 909 F.2d 1510, 1515 (D.C. Cir. 1990) (the Commission can preempt even in the area of matters left to the

states under section 2(b) of the Act “when (1) the matter to be regulated has both interstate and intrastate aspects, (2)

FCC preemption is necessary to protect a valid federal regulatory objective, and (3) state regulation would ‘negate[]

the exercise by the FCC of its own lawful authority’ because regulation of the interstate aspects of the matter cannot

be ‘unbundled’ from regulation of the intrastate aspects” (citations omitted)).

331

See, e.g., 2010 Open Internet Order, 25 FCC Rcd at 17970, para. 121 n.374 (adopting an incremental approach);

2015 Open Internet Order, 30 FCC Rcd at 5804, para. 433 (similar).

332

See infra section V.

Federal Communications Commission FCC 23-83

otherwise, we expect that we would preempt such state regulations as in conflict with our regulations.”

333

Should the Commission affirmatively preempt in those scenarios here rather than leaving those scenarios

for future case-by-case evaluation as it did in 2015? In addition, how should the Commission define what

state or local actions are within the scope of any affirmative preemption it might adopt here? To what

extent should these decisions be informed by traditional preemption frameworks, such as express

preemption,

334

field preemption,

335

or conflict preemption?

336

IV. PROPOSED FORBEARANCE

98. We propose to forbear from applying some Title II provisions to BIAS in the event that

we reclassify the service, and we seek comment on what the parameters of such forbearance should be,

taking into account as a primary matter that we believe we must enable the Commission to fulfill its

responsibility under the Act to protect national security and public safety when executing its other

statutory obligations. In the 2015 Open Internet Order, the Commission accompanied Title II

classification with “substantial” forbearance for BIAS in a way that was designed to “strike the right

balance at this time of minimizing the burdens on ISPs while still adequately protecting the public,

particularly given the objectives of section 706 of the 1996 Act.”

337

We propose to return to largely the

same forbearance that was adopted in the 2015 Open Internet Order, tailored as appropriate in light of

any updated conclusions the Commission reaches in this proceeding regarding the need for particular

rules, requirements, or sources of authority covering BIAS. Notably, we propose to forbear from Title II

provisions insofar as they would support the adoption of ex ante rate regulations for broadband Internet

access service.

338

99. However, subsequent developments have highlighted the importance of retaining

statutory authority to enable the Commission to address national security and public safety concerns that

could arise with respect to BIAS. Those considerations provide a leading basis for revisiting the statutory

classification of BIAS, and therefore we propose to depart from the forbearance approach reflected in the

333

2015 Open Internet Order, 30 FCC Rcd at 5804, para. 433.

334

See, e.g., Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 376 (2015) (Congress may preempt state law “through

express language in a statute.”).

335

Arizona v. United States, 567 U.S. 384, 401 (2012) (field preemption “foreclose[s] any state regulation in the

area, even if it is parallel to federal standards” or “complementary” to federal regulation). We note, however, that

the Commission has recognized in the past certain roles that states might have with respect to BIAS. See, e.g., RIF

Order, 33 FCC Rcd at 395-97, para. 142 & n.517 (citing state consumer protection laws); id. at 428-29, para. 196

(acknowledging “the states’ traditional role in generally policing such matters as fraud, taxation, and general

commercial dealings”); 2015 Open Internet Order, 30 FCC Rcd at 5803, para. 431 n.1276 (observing that

“[n]otwithstanding the interstate nature of BIAS, states of course have a role with respect to broadband”); 2010

Open Internet Order, 25 FCC Rcd at 17970, para. 121 n.374 (recognizing, “for example, that states play a vital role

in protecting end users from fraud, enforcing fair business practices, and responding to consumer inquiries and

complaints”).

336

See, e.g., California v. FCC, 39 F.3d 919 (9th Cir. 1994) (upholding the Commission’s preemption of state

structural-separation requirements that “would negate the FCC’s goal of allowing [carriers] to develop efficiently a

mass market for enhanced services for small customers” and “defeat the FCC’s more permissive policy of

integration,” reasoning that as a matter of conflict preemption, that any state requirement that conflicts with a validly

enacted federal substantive policy are preempted under the Supremacy Clause); Minn. Pub. Utils. Comm’n v. FCC,

483 F.3d 570 (8th Cir. 2007) (upholding the Commission’s broad preemption of state efforts to regulate a form of

VoIP service because state regulation would interfere with federal policies, including the FCC’s “market-oriented

policy allowing providers of information services to burgeon and flourish . . . without the need for and possible

burden of rules, regulations and licensing requirements”).

337

2015 Open Internet Order, 30 FCC Rcd at 5804, para. 433; see generally id. at 5616-18, 5804-67, paras. 51-59,

434-542 (discussing the forbearance in the 2015 Open Internet Order).

338

See id. at 5814, paras. 451-52.

Federal Communications Commission FCC 23-83

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,

339

given that those statutory provisions could provide important additional tools to advance

the Act’s national security and public safety objectives. We seek comment on that proposal and on any

issues related to forbearance with respect to BIAS if classified as a Title II service, including the best

understanding of the current status of the forbearance granted in the 2015 Open Internet Order, the

appropriate analytical approach to evaluating forbearance, and the substantive scope of forbearance that

should be granted. We also seek comment on the impact of our proposed forbearance approach on ISPs,

particularly small ISPs.

A. Forbearance Framework

100. As a threshold matter, we seek comment on the best way to interpret the effect of the RIF

Order on the forbearance previously granted in the 2015 Open Internet Order. The RIF Order stated that,

due to the reclassification decision there, “the forbearance granted in the [2015 Open Internet Order] is

now moot,” and that “carriers are no longer permitted to use the [2015 Open Internet Order] forbearance

framework (i.e., no carrier will be permitted to maintain, or newly elect, the [2015 Open Internet Order]

forbearance framework).”

340

We seek comment on how to interpret those statements in the RIF Order.

101. Next, we seek comment on the appropriate analytical approach to use when evaluating

the statutory forbearance criteria. In the 2015 Open Internet Order, the Commission stated that

“[b]ecause the Commission is not responding to a petition under section 10(c), we conduct our

forbearance analysis under the general reasoned decision making requirements of the Administrative

Procedure Act [(APA)], without the burden of proof requirements that section 10(c) petitioners face.”

341

The Commission explained how its approach to forbearance in the 2015 Open Internet Order satisfied the

statutory forbearance criteria, other relevant statutory objectives such as section 706 of the 1996 Act, and

applicable procedural requirements under the Act and the APA,

342

and the D.C. Circuit rejected

challenges to that forbearance approach in its USTA decision.

343

We propose to follow the same

analytical approach here and seek comment on that proposal. We also seek comment on alternative

analytical approaches or other ways to effectuate the forbearance analysis.

344

102. We seek comment on the interplay between our approach to forbearance and the

argument in the RIF Order that the scope of forbearance granted in the 2015 Open Internet Order

suggests that classification of BIAS as a Title II service is contrary to the statutory scheme.

345

339

As discussed infra. at para. 112, we propose to forbear from applying common carrier roaming requirements,

conditioned on compliance with our data roaming rules.

340

RIF Order, 33 FCC Rcd at 416-17, para. 174.

341

2015 Open Internet Order, 30 FCC Rcd at 5806-5807, para. 438.

342

See, e.g., 2015 Open Internet Order, 30 FCC Rcd at 5805-5808, 5838-41, 5864-67, paras. 435-39, 493-96, 537-

42.

343

USTA, 825 F.3d at 726-33.

344

For example, Judge Williams’s partial dissent in USTA questioned aspects of the Commission’s forbearance

approach, particularly what he viewed as a disconnect between the granting of forbearance and the nature and scope

of competitive assessments and other economic analysis in the 2015 Open Internet Order as a whole. USTA, 825

F.3d at 773-78 (Williams, S.J., concurring in part and dissenting in part). In addition, in a dissent from the D.C.

Circuit’s denial of requests to rehear the USTA case en banc, Judge Brown expressed nondelegation concerns about

forbearance, premised particularly on the view that the forbearance decision did not adequately address the required

statutory criteria. U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 407-408 (D.C. Cir. 2017) (Brown, J., dissenting from

the denial of rehearing en banc).

345

RIF Order, 33 FCC Rcd at 351-52, para. 64; see also U.S. Telecom Ass’n v. FCC, 855 F.3d at 408-409 (D.C. Cir.

2017) (Brown, J., dissenting from the denial of rehearing en banc) (making a similar argument).

Federal Communications Commission FCC 23-83

particular, does such an argument fail to account for important aspects of the approach to forbearance in

the 2015 Open Internet Order? For example, we note that in many cases the 2015 Open Internet Order

evaluated forbearance assuming arguendo that particular provisions of the Act or Commission rules apply

to BIAS, rather than “first exhaustively determining provision-by-provision and regulation-by-regulation

whether and how particular provisions and rules apply to this service.”

346

Do objections to Title II

classification premised on the scope of forbearance adequately account for that fact, or do they draw

unduly broad conclusions based on simple counts of rules or statutory provisions subject to the

forbearance decision?

103. Separately, we propose to leave ISPs’ broadband transmission services—as distinguished

from BIAS that relies on that transmission as an input—subject by default to the framework of the

Wireline Broadband Classification Order as the Commission has done previously. The RIF Order

observed that such services “have never been subject to the [2015 Open Internet Order] forbearance

framework,” and stated that “carriers that choose to offer transmission service on a common carriage

basis are, as under the Wireline Broadband Classification Order, subject to the full set of Title II

obligations, to the extent they applied before the” 2015 Open Internet Order.

347

The 2015 Open Internet

Order did, however, allow a provider previously offering broadband transmission on a common carrier

basis “to change to offer Internet access services pursuant to the construct adopted in” that Order subject

to filing with and review by the Wireline Competition Bureau of the provider’s proposal for the steps it

would take to convert to such an approach.

348

We propose to follow the same approach here, and seek

comment on that proposal.

B. Proposed Forbearance

104. We seek comment on the particular statutory provisions and rules that should or should

not be subject to forbearance. In this regard, we propose to use the forbearance granted in the 2015 Open

Internet Order as the starting point for our consideration of the appropriate scope of forbearance.

349

There, although the Commission granted broad forbearance, the Commission did not forbear from a

number of specific protections or authorities:

• The open Internet rules and section 706 of the 1996 Act;

350

• “[S]ections 201, 202, and 208, along with key enforcement authority under the Act, both as a

basis of authority for adopting open Internet rules as well as for the additional protections

those provisions directly provide”;

351

• Section 222 of the Act, “which establishes core customer privacy protections”;

352

• Section 224 of the Act and the Commission’s implementing rules, “which grant certain

346

See, e.g., 2015 Open Internet Order, 30 FCC Rcd at 5867, para. 542 (discussing the general approach).

347

RIF Order, 33 FCC Rcd at 418-19, paras. 177, 179.

348

2015 Open Internet Order, 30 FCC Rcd at 5819, para. 460 n.1378.

349

Id. at 5616-18, 5804-64, paras. 51-59, 434-536.

350

Id. at 5818, para. 457.

351

Id. at 5817-18, para. 456.

352

Id.; see also id. at 5820-24, paras. 462-67. While initially proceeding under the statutory privacy protections

alone, id. at 5823-24, para. 467, in 2016 the Commission adopted rules implementing section 222 with respect to

ISPs’ provision of BIAS. Protecting the Privacy of Customers of Broadband and Other Telecommunications

Services, WC Docket No. 16-106, Report and Order, 31 FCC Rcd 13911 (2016). The 2016 rules were subject to a

resolution of disapproval under the Congressional Review Act in 2017, leaving the statutory protections themselves

in place at that time. Joint Resolution, Pub. L. No. 155-22 (2017); Protecting the Privacy of Customers of

Broadband and Other Telecommunications Services, et al., Order, 32 FCC Rcd 5442, 5442-43, para. 2 & n.6 (2017).

Federal Communications Commission FCC 23-83

benefits that will foster network deployment by providing telecommunications carriers with

regulated access to poles, ducts, conduits, and rights-of-way”;

353

• Sections 225, 255, and 251(a)(2) of the Act and the Commission’s implementing rules,

“which collectively advance access for persons with disabilities; except that the Commission

forbears from the requirement that providers of broadband Internet access service contribute

to the Telecommunications Relay Service (TRS) Fund at this time”;

354

• Section 254 of the Act and “the interrelated requirements of section 214(e), and the

Commission’s implementing regulations to strengthen the Commission’s ability to support

broadband, supporting the Commission’s ongoing efforts to support broadband deployment

and adoption”;

355

and

• Requirements governing the wireless licensing process in section 309(b) and (d)(1) of the Act

and sections 1.931, 1.933, 1.939, 22.1110, and 27.10 of the Commission’s rules.

356

105. We propose to forbear from all provisions of Title II that would permit Commission

regulation of BIAS rates. We believe that Commission rate regulation is unnecessary because the tailored

approach we adopt here will enable the Commission to promote broadband deployment and competition,

and because we will be able to rely on sections 201 and 202 to address non-rate related issues.

357

Therefore, while we do not propose to forbear from sections 201 and 202 of the Act as a general matter,

we “do not and cannot envision adopting new ex ante rate regulation” or ex post rate regulation of

BIAS,

358

and we therefore propose to forbear from applying sections 201 and 202 to BIAS insofar as they

would support adoption of rate regulations for BIAS. We seek comment on this proposal. With respect

to section 254, we propose to forbear in part from the first sentence in section 254(d) and our associated

rules “insofar as they would immediately require new universal service contributions associated with”

BIAS, as the Commission did in 2015, and seek comment on this proposal.

359

106. In addition to declining to forbear from applying those specifically enumerated

provisions of the Act and Commission rules, the Commission also more generally limited its forbearance

to the scope of its section 10 forbearance authority, and thus did not forbear from applying statutory

provisions or rules that “are not applied to telecommunications carriers or telecommunications

services.”

360

The Commission also did not forbear from applying provisions of the Act or Commission

rules that already applied to BIAS irrespective of the Title II classification of that service.

361

The

Commission cited illustrative examples falling within one or both of those categories, including

provisions imposing obligations on the Commission, like section 257 of the Act,

362

provisions that simply

(Continued from previous page)

353

2015 Open Internet Order, 30 FCC Rcd at 5817-17, para. 456; see also id. at 5831-33, paras. 478-85.

354

Id. at 5817-18, para. 456; see also id. at 5824-30, paras. 468-77.

355

Id. at 5817-18, para. 456; see also id. at 5834-38, paras. 486-92.

356

Id. at 5863-64, paras. 534-36.

357

Id.

358

Id. at 5814, para. 451.

359

Id. at 5835, para. 488.

360

Id. at 5860-61, para. 529; see also id. at 5861-63, paras. 531-33.

361

Id. at 5861, para. 530; see also id. at 5861-63, paras. 531-33.

362

Id. at 5861-63, para. 531. The Act subsequently was amended and the requirements previously in section 257

were, in pertinent part, incorporated in section 13 of the Act, 47 U.S.C. § 163.

Federal Communications Commission FCC 23-83

reserve state authority,

363

and the CALEA requirements in section 229.

364

In addition, the Commission

did not forbear from provisions that would benefit ISPs.

365

This would include, for example, preemption

provisions such as those in sections 253 and 332(c) of the Act,

366

as well as liability limitation provisions

in sections 223, 230, and 231 of the Act.

367

To the extent that forbearance was considered and rejected in

the 2015 Open Internet Order for particular statutory provisions, we propose to once again decline to

grant forbearance here, and we seek comment on that proposal. As part of that analysis, we seek updated

information and analyses regarding the application of the statutory forbearance criteria regarding these

provisions and rules that were not subject to forbearance in the 2015 Open Internet Order. We also seek

comment on any relevant analyses or conclusions in the RIF Order.

368

107. Other than in the specific areas described above, the 2015 Open Internet Order broadly

granted forbearance from applying provisions of the Act and Commission rules that newly applied by

virtue of the Title II classification of BIAS.

369

We generally propose to again adopt broad forbearance

consistent with that outcome, with the exception of statutory authorities that could enable the

Commission to advance the Act’s goals of national security and public safety. For example, section 1 of

the Act makes clear that the Commission was established, among other reasons, “for the purpose of the

national defense, [and] for the purpose of promoting safety of life and property through the use of wire

and radio communications.”

370

Section 4(n) of the Act directs the Commission to takes steps to promote

the “maximum effectiveness from the use of radio and wire communications in connection with safety of

life and property.”

371

In addition, the D.C. Circuit in Mozilla emphasized the need to consider the

potential benefits of Title II classification of BIAS for the Commission’s authority to protect public

safety.

372

Although public safety considerations were an important element of the Commission’s overall

decision in the 2015 Open Internet Order, preserving the Commission’s public safety authority above and

beyond that granted in sections 201 and 202 of the Act was not as explicit a focus in much of the

Commission’s tailoring of forbearance there. We thus seek comment on what specific provisions should

be excluded from the scope of forbearance here in light of those national security and public safety

interests, as discussed in greater detail above.

373

108. Given the role section 214 of the Act has played in the Commission’s efforts to address

national security and law enforcement concerns related to U.S. telecommunications networks, we

363

2015 Open Internet Order, 30 FCC Rcd at 5861-63, para. 531 (citing comments that reference sections 214(e)(2),

224(c), 253, and 261 of the Act).

364

2015 Open Internet Order, 30 FCC Rcd at 5861-63, para. 533.

365

Id. at 5862, para. 532.

366

47 U.S.C. §§ 253, 332(c).

367

2015 Open Internet Order, 30 FCC Rcd at 5862, para. 532.

368

See, e.g., RIF Order, 33 FCC Rcd at 419-23, paras. 181-84 (discussing reliance on the FTC to address privacy);

id. at 423-25, paras. 185-91 (discussing the potential continued availability of statutory protections under the Act to

support the deployment of wireline and wireless infrastructure for commingled services, and under state regulation

of pole attachments); id. at 425-26, paras. 192-93 (discussing the extent to which the Commission would remain

able to provide universal service support for broadband-capable networks and services); id. at 432-33, para. 205

(discussing the protections for persons with disabilities that would continue to apply); id. at 434, para. 206

(discussing the continued application of Title III licensing provisions).

369

See, e.g., 2015 Open Internet Order, 30 FCC Rcd at 5838-60, paras. 493-528.

370

47 U.S.C. § 151.

371

47 U.S.C. § 154(n).

372

Mozilla, 940 F.3d at 59-63.

373

See supra sections III.B.3.

Federal Communications Commission FCC 23-83

tentatively conclude that we should exclude that provision from any forbearance granted here.

374

How

should the Commission apply its existing procedures for international section 214 authorizations, which

include coordination of applications that have reportable foreign ownership with the relevant Executive

Branch agencies, to BIAS providers?

375

We seek comment on any implementation issues arising from

our tentative conclusion and how we could best address them. For example, would implementation

challenges arise if the Commission immediately applied to BIAS providers its existing procedures for

international section 214 authorizations, which include coordination of applications that have reportable

foreign ownership with the relevant Executive Branch agencies?

376

We note that the 2015 Open Internet

Order recognized that certain implementation issues could arise from the application of section 222 and

the Commission’s implementing rules to BIAS, and sought to mitigate those effects pending a rulemaking

specifically focused on implementing section 222 for BIAS.

377

Should we proceed in a similar manner

with respect to some or all aspects of international section 214 authorizations, whether by adopting

temporary forbearance, temporary grants of blanket international section 214 authority,

378

or in some

other manner? We also seek comment on any implementation issues concerning our domestic section

214 requirements.

109. We also make clear that our proposed forbearance would not encompass Title III

licensing authorities, including sections 301-303, 307-309, 312, and 316 of the Act, which we believe

likewise grant us important authority that can be used to advance national security and public safety with

respect to the services and equipment subject to licensing.

379

We also seek comment on whether we

should exclude from the scope of our forbearance provisions sections 218 and 220 of the Act, which

authorize the Commission to obtain information from common carriers, which could provide important

tools to investigate public safety and security-related issues that arise. We seek comment on those

proposals and on any other provisions of the Act or Commission rules that likewise should be expressly

excluded from the scope of forbearance based on national security and/or public safety considerations,

including, for example, sections 305, 310, and 332 of the Act.

380

110. The D.C. Circuit’s Mozilla decision also highlighted the potential benefits of Title II

classification of BIAS for the Commission’s authority to encourage deployment through regulation of

374

See supra para. 27.

375

See generally Executive Branch Process Reform Order; Review of International Section 214 Authorizations to

Assess Evolving National Security, Law Enforcement, Foreign Policy, and Trade Policy Risks; Amendment of the

Schedule of Application Fees Set Forth in Sections 1.1102 through 1.1109 of the Commission’s Rules, IB Docket

No. 23-119 and MD Docket No. 23-134, Order and Notice of Proposed Rulemaking, FCC 23-28 (Apr. 25, 2023).

376

See generally id.

377

2015 Open Internet Order, 30 FCC Rcd at 5822-24, paras. 466-67.

378

The Commission previously has granted blanket domestic section 214 entry authority. 47 CFR § 63.01.

379

47 U.S.C. §§ 301-303, 307-309, 312, 316. As the RIF Order explained, the application of those provisions do

not depend on the classification of BIAS. RIF Order, 33 FCC Rcd at 434, para. 206. Consequently, although not all

of those statutory provisions were expressly enumerated as excluded from forbearance in the 2015 Open Internet

Order, they were not subject to forbearance there because they did not newly apply by virtue of the classification of

BIAS as a telecommunications service, or the classification of mobile BIAS as CMRS, and we clarify that they

likewise would not be encompassed by our proposed forbearance here. See 2015 Open Internet Order, 30 FCC Rcd

at 5861, para. 530 (declining to forbear from provisions if they do not newly apply by virtue of the classification

decisions in that Order).

380

47 U.S.C. § 305 (requiring Government radio stations using frequencies assigned by the President to conform to

FCC rules and regulations designed to prevent interference with other radio stations and the rights of others as the

Commission may prescribe); 47 U.S.C. § 310 (establishing limitations on foreign ownership requirement for

common carriers); 47 U.S.C. § 332 (addressing regulatory treatment of mobile services and preemption of state and

local requirements pertaining to wireless siting).

Federal Communications Commission FCC 23-83

pole attachments and to provide universal service support for low income households.

381

In consideration

of those interests, the Commission previously excluded sections 224 and 254 of the Act from the scope of

its forbearance in the 2015 Open Internet Order.

382

We seek comment on whether there are additional or

different ways those interests should be reflected in the tailoring of forbearance here.

111. We believe that the RIF Remand Order was too quick to dismiss concerns regarding

public safety, pole attachments, and low income universal service support as speculative or unproven, and

we seek comment on that view. Do commenters agree that the RIF Remand Order gave insufficient

weight to the potential additional benefits that could be achieved through additional authority retained by

virtue of Title II classification of BIAS?

112. We also seek comment on any additional or different ways that forbearance could be

tailored here. For example, the 2015 Open Internet Order adopted conditional forbearance from common

carrier roaming regulations, subject to mobile ISPs complying with the data roaming requirements.

383

Conditioned in that manner, the Commission was able to find the statutory forbearance criteria

satisfied.

384

We propose to follow the same approach with respect to our roaming rules here, and also

seek comment on whether there are other provisions of the Act or Commission rules where conditional

forbearance would satisfy the statutory forbearance criteria, even if unconditional forbearance would not.

More generally, we also seek comment on alternative frameworks we might draw upon in deciding on

how to tailor forbearance here. For example, in the 2015 Open Internet Order, the Commission elected to

grant broader forbearance despite some calls to limit forbearance just to the scope of relief previously

granted to CMRS providers.

385

We seek renewed comment on that approach, as well as any alternative

options for tailoring forbearance here based on the regulatory experience in other contexts.

113. We also seek comment on whether forbearance should be differently tailored in the

specific context of the Internet traffic exchange portion of BIAS. In the 2015 Open Internet Order, the

Commission’s “definition for broadband Internet access service include[d] the exchange of Internet traffic

by an edge provider or an intermediary with the broadband provider’s network.”

386

Consequently, under

the 2015 Open Internet Order, Internet traffic exchange was subject to the same forbearance as BIAS

more generally.

387

We propose to continue that uniform approach here, but also seek comment on

whether and to what extent the Internet traffic exchange component of BIAS should be subject to

different tailoring of forbearance.

114. Finally, we also seek comment on any relevant new rules or statutory requirements

enacted subsequent to the forbearance analysis in the 2015 Open Internet Order.

V. PROPOSED OPEN INTERNET RULES

115. Today we propose to return to the basic framework the Commission adopted in 2015 to

protect the openness of the Internet. In 2015, consistent with its longstanding policy approach to protect

Internet openness through basic conduct “rules of the road,” the Commission adopted a set of carefully

tailored conduct rules to prevent specific practices harmful to an open Internet—blocking, throttling, and

paid prioritization—as well as a strong standard of conduct designed to prevent deployment of new

381

Mozilla, 940 F.3d at 1, 65-70.

382

2015 Open Internet Order, 30 FCC Rcd at 5817-18, 5831-33, 5834-38, paras. 456, 478-85, 486-92.

383

Id. at 5857-58, paras. 523-26.

384

Id..

385

See, e.g., id. at 5848, 5864, paras. 510 n.1559, 537.

386

Id. at 5686-87, para. 195.

387

See, e.g., id. at 5686-87, para. 195 & n.485 (discussing the legal authority available for oversight of Internet

traffic exchange, and cross-referencing the 2015 Open Internet Order’s forbearance discussion).

Federal Communications Commission FCC 23-83

practices that would harm Internet openness, and enhancements to the existing transparency rule.

388

the RIF Order, the Commission broke with this longstanding approach by altogether eliminating the open

Internet conduct rules,

389

which we believe left consumers exposed to behavior that can hinder their

ability to access the open Internet. Below, we propose to reinstate straightforward, clear rules that are

designed to prevent ISPs from engaging in practices harmful to consumers, competition, and public

safety, and that would provide the basis for a national regulatory approach toward BIAS.

116. We first propose to reinstate the rules adopted in the 2015 Open Internet Order that

prohibit ISPs from blocking, throttling, or engaging in paid or affiliated prioritization arrangements. We

similarly propose to reinstate the general conduct standard adopted in the 2015 Open Internet Order,

which would prohibit practices that cause unreasonable interference or unreasonable disadvantage to

consumers or edge providers. Finally, with regard to transparency, we propose to retain the current

disclosures, and we seek comment on the means of disclosure, the interplay between the transparency rule

and the broadband label requirements, and any additional enhancements or changes we should consider.

The rules we propose today are consistent with numerous other steps the Commission has taken to ensure

that this country has access to affordable, competitive, secure, and reliable broadband.

390

The proposed

rules would establish clear standards for ISPs to maintain Internet openness and would give the

Commission a solid basis on which to take enforcement action against conduct that prevents people from

fully accessing all of the critical services available through the Internet.

A. Need for Rules

117. We believe that the rules we propose today will establish a baseline that the Commission

can use to prevent and address conduct that harms consumers and competition when it occurs. Above, we

express our belief that consumers perceive and use BIAS as an essential service, critical to accessing

healthcare, education, work, commerce, and civic engagement.

391

Because of its importance, we further

believe it is paramount that consumers be able to use their BIAS connections without degradation due to

blocking, throttling, paid prioritization, or other harmful conduct. The rules we propose today are

designed to ensure these protections. Below, we seek comment on particular issues that inspire the need

for these rules, including protecting public safety, ISPs’ incentives and abilities to harm Internet

openness, the effects of harmful conduct on consumer demand and edge innovation, reliance on the

Commission’s communications sector expertise to address harmful conduct, and how the RIF Order’s

oversight framework addresses harmful conduct. We invite commenters to submit economic analyses

that weigh the costs and benefits of the Commission potentially adopting open Internet rules.

1. Promoting Innovation and Free Expression

118. In the 2015 Open Internet Order, the Commission found that Internet openness helps

promote innovation, investment, and free expression, among other goals.

392

Among other things, the

Commission found that the record there “overwhelmingly support[ed] the proposition that the Internet’s

openness is critical to its ability to serve as a platform for speech and civic engagement,” facilitate “the

development of diverse content, applications, and services,” and enable “a virtuous cycle of

innovation.”

393

We continue to place high importance on innovation, investment, and free expression,

and we believe that conduct rules designed to ensure Internet openness will better advance those goals,

consistent with the reasoning in the 2015 Open Internet Order. We seek comment on that view.

388

Id. at 5603, para. 4.

389

See RIF Order, 33 FCC Rcd at 450, para. 239.

390

See supra notes 1 and 105.

391

See supra section III.A.

392

2015 Open Internet Order, 30 FCC Rcd at 5625-26, para. 76.

393

Id. at 5627, para. 77.

Federal Communications Commission FCC 23-83

119. We are skeptical of the RIF Order’s rejection of free expression as a likely benefit of

Internet conduct rules designed to advance Internet openness. The RIF Order theorized that competition

“will protect values such as free expression, to the extent that consumers value free expression as a

service attribute and are aware of how their ISPs’ actions affect free expression.”

394

We question,

however, whether the RIF Order was correct to place such confidence in the marketplace as sufficient to

advance free expression on the Internet. Do consumers and the public have information about how ISP

actions affect free expression on a sufficiently granular and detailed basis to act on that information?

Separately, the RIF Order acknowledged that “[t]he competitive process and antitrust would not protect

free expression in cases where consumers have decided that they are willing to tolerate some blocking or

throttling in order to obtain other things of value.”

395

We doubt that consumers are likely to act uniformly

as a single, undifferentiated group, particularly where issues like free expression are concerned. We thus

question how well the RIF Order’s analysis accounts for the interests of consumers who place different

values on free expression. More generally, we seek updated information and analysis about the

anticipated effects of Internet conduct rules on free expression.

2. Protecting Public Safety

120. We believe that blocking, throttling, paid prioritization, and other potential conduct have

the potential to impair public safety communications in a variety of circumstances and therefore harm the

public. As discussed above, one of the Commission’s fundamental obligations under the Act is to

advance public safety.

396

The Mozilla court highlighted this charge and recognized the significance of it,

emphasizing that “whenever public safety is involved, lives are at stake.”

397

It went on to note that “[a]ny

blocking or throttling of [safety officials’] Internet communications during a public safety crisis could

have dire, irreversible results.”

398

Similarly, in the 2015 Open Internet Order, the Commission

recognized that paid prioritization and peering disagreements can negatively affect public safety

communications traveling over the same networks.

399

Above, we detail and seek comment on the wide

range of public safety communications and applications that rely on broadband networks and on the

related national security concerns implicating broadband service providers.

400

We now seek comment on

our belief that maintaining the RIF Order’s ex post enforcement framework will provide insufficient

protection against conduct harms, which includes harms to public safety or national security.

401

believe that the conduct rules we propose are necessary to prevent and mitigate harms to those public

safety uses that would result from blocking, throttling, and other conduct, and we seek comment on our

394

RIF Order, 33 FCC Rcd at 402-403, para. 153.

395

Id. at 402-03, para. 153 n.558.

396

See supra para. 33; 47 U.S.C. § 151.

397

Mozilla, 940 F.3d at 59-60, 62.

398

Id. at 61; see also id. at 60 (pointing out that “public safety officials explained at some length how allowing ISPs

to prioritize Internet traffic as they see fit, or to demand payment for top-rate speed, could imperil the ability of first

responders, providers of critical infrastructure, and members of the public to communicate during a crisis”).

399

2015 Open Internet Order, 30 FCC Rcd at 5654-55, 5689-90, paras. 126, 199.

400

See supra section III.B.2.

401

See infra section 6. We note that the Mozilla court expressed specific skepticism about the Commission’s

contention in the RIF Order that post-activity enforcement is a suitable method to address harmful conduct in the

public safety context, emphasizing that “even if discriminatory practices might later be addressed on a post-hoc

basis by entities like the Federal Trade Commission, the harm to the public cannot be undone.” Mozilla, 940 F.3d at

61 (internal quotation omitted).

Federal Communications Commission FCC 23-83

tentative conclusion.

402

We seek comment on consumer experiences where they have been harmed.

121. We further believe our proposed conduct rules would have particular benefits for the

safety of individuals with disabilities. Above, we highlighted that these individuals increasingly rely on

Internet-based communications,

403

and that “[t]hese applications often require significant bandwidth,

making their use particularly sensitive to data caps and network management practices.”

404

We believe

the use of broadband to facilitate Internet-based communications by persons with disabilities for public

safety purposes, such as to contact emergency service providers, has a higher likelihood of being

degraded by prioritization of latency-sensitive applications on the same facilities than less data-intensive

uses, such as email, software updates, or cached video. We accordingly believe that our proposed rules

would prevent such degradation and seek comment on this proposed analysis.

122. We seek comment on any other public safety harms or unaddressed concerns that the

proposed rules would help to alleviate. For example, would the proposed rules help to improve public

safety officials’ ability to communicate via alerting systems to help improve emergency preparedness?

Would they help to provide additional necessary bandwidth for IP-based communications to Public Safety

Answering Points via 9-1-1? Would such rules help the authorities responding to such calls to have better

or more complete information about an emergency to ensure a more comprehensive or timely response?

Would such rules help public safety and law enforcement authorities to better communicate with one

another during their responses to emergencies? What public safety issues have arisen since the

Commission’s prior 2015 and 2018 orders that the proposed rules would help to address?

3. ISPs’ Incentive and Ability to Harm Internet Openness

123. In both the 2010 Open Internet Order and 2015 Open Internet Order, the Commission

concluded that open Internet rules were needed because ISPs have the incentive and ability to engage in

practices that pose a threat to Internet openness.

405

In particular, the Commission found that because ISP

networks serve as platforms for Internet ecosystem participants to communicate, ISPs “are in a position to

act as a ‘gatekeeper’ between end users’ access to edge providers’ applications, services, and devices and

reciprocally for edge providers’ access to end users.”

406

The 2015 Open Internet Order highlighted

several economic incentives ISPs have to exploit this gatekeeper role, “such as preferring their own or

affiliated content, demanding fees from edge providers, or placing technical barriers to reaching end

users.”

407

This behavior, the Commission found, “has the potential to cause a variety of other negative

externalities that hurt the open nature of the Internet,” which ISPs do not internalize.

408

The Commission

also concluded that ISPs “have the technical ability to act on incentives to harm the open Internet.”

409

402

Our proposed conduct rules may also support consumer use of telehealth service and remote healthcare

monitoring, such as through connected devices, by ensuring consumers can continue to access these services without

the threat of blocking, throttling, or other degradation.

403

See supra section III.B.5.

404

California Public Utilities Commission Comments, WC Docket Nos. 17-108, 17-287, and 11-42, at 10 (Apr. 20,

2020).

405

2010 Open Internet Order, 25 FCC Rcd at 17915, para. 21; 2015 Open Internet Order, 30 FCC Rcd at 5625,

para. 75.

406

2015 Open Internet Order, 30 FCC Rcd at 5629, para. 80.

407

Id.; see also id. at 5632-33, para. 82 (explaining how ISPs may seek to gain economic advantages by favoring

their own or affiliated content over other third-party sources).

408

See id. at 5633, para. 83 (describing how ISPs have incentives to engage in practices that will provide short term

gains but will not adequately take into account the effects on the virtuous cycle).

409

See id. 5634, para. 85 (describing the tools ISPs have at their disposal to monitor and regulate the flow of traffic

over their networks).

Federal Communications Commission FCC 23-83

124. The RIF Order offered several reasons for rejecting the prior rationales, including ISPs’

economic incentives and supposed material competitive restraints.

410

We believe these conclusions

presumed that there were other ISPs to which consumers can switch if they were suffering open Internet

harms, and that the switching costs would not deter such switching. In addition, we tentatively agree with

the Mozilla court, which found that, “[t]aken together, the Commission fail[ed] to provide a fully

satisfying analysis of the competitive constraints faced by broadband providers.”

411

The Commission also

claimed that “from the perspective of many edge providers, end users do not single home, but subscribe to

more than one platform (e.g., one fixed and one mobile) capable of granting the end user effective access

to the edge provider’s content (i.e., they multi-home),” and “to the extent multihoming occurs in the use

of an application, there is no terminating monopoly.”

412

However, consumers may lack access to both

fixed and mobile connections,

413

and even when they do have access to both, the Commission did not

show that these connections allow consumers to access all edge provider services unhindered, and

therefore are truly competitive alternatives. Indeed, the Commission has since concluded that “fixed

broadband and mobile wireless broadband are not substitutes in all cases,” finding that each type of

service “enables different situational uses.”

414

We seek comment on this analysis.

125. The RIF Order also found the Commission’s action in the 2015 Open Internet Order was

unjustified because it lacked evidence of harms to Internet openness.

415

Setting aside the several

examples of harmful conduct discussed in the 2015 Open Internet Order and detailed in the record for the

RIF Order, we believe the RIF Order’s conclusion gave inadequate consideration to the effects of the

Commission’s consistent efforts to apply and enforce the open Internet standards since early 2005, which

we believe deterred harmful ISP conduct. Thus, to the extent there is limited evidence of harmful conduct

prior to the 2015 Open Internet Order, we believe that demonstrates the Commission’s consistent efforts

to apply and enforce open Internet standards since 2005 were effective and are needed, not that the 2015

Open Internet Order and the protections it adopted were unjustified. We seek comment on this analysis.

126. We tentatively conclude that ISPs continue to have the incentive and ability to engage in

practices that pose a threat to Internet openness, and seek comment on this tentative conclusion and the

above analysis. We also seek to update the record underlying the conclusions in the 2010 Open Internet

Order and 2015 Open Internet Order.

416

How have changes in the marketplace or technology since 2015

affected ISPs’, including smaller ISPs, incentives and ability to engage in such practices? To what extent

do ISPs have economic incentives and mechanisms to block or disadvantage a particular edge provider or

class of edge providers? To what extent do vertically integrated providers have particularized incentives

to discriminate—on price, quality, or other bases—in favor of affiliated products? For instance, we

believe that many major ISPs are affiliated with OTT services or continue to offer competitive vertically

integrated OTT services, and frequently provide consumers with promotional offers that bundle OTT

410

RIF Order, 33 FCC Rcd at 379, 382, paras. 117, 123.

411

Mozilla, 940 F.3d at 57.

412

RIF Order, 33 FCC Rcd at 391, para. 136.

413

See 2022 Communications Marketplace Report at Fig. II.A.3a, para. 345 (determining that in rural areas,

approximately 75 percent of Americans are covered by both fixed terrestrial 100/20 Mbps services and 5/1 Mbps

mobile 4G LTE and that on Tribal lands, approximately 74 percent of Americans have coverage from both services).

414

Inquiry Concerning Deployment of Advanced Telecommunications Capability to All Americans in a Reasonable

and Timely Fashion, GN Docket No. 20-269, Fourteenth Broadband Deployment Report, 36 FCC Rcd 836, 841,

para. 11 (2021) (Fourteenth Broadband Deployment Report).

415

RIF Order, 33 FCC Rcd at 378, para. 116.

416

2010 Open Internet Order, 25 FCC Rcd at 17915, at para. 21; 2015 Open Internet Order, 30 FCC Rcd at 5625,

para. 75.

Federal Communications Commission FCC 23-83

services with BIAS.

417

Do these affiliate relationships and vertically integrated offerings create additional

incentive for ISPs to favor those services over others? To what extent should the Commission evaluate

the ability and incentives of other intermediaries involved in the exchange of Internet traffic, such as

middle mile and backbone providers, to engage in conduct harmful to Internet openness, particularly with

respect to their relationships with ISPs? We seek comment on this analysis.

127. We also seek comment on whether ISPs are incentivized to increase revenues by

charging edge providers for access or prioritized access to the ISPs’ end users. Are there justifications for

charging fees to edge providers that were not present in 2015? We seek comment on these and other

economic incentives and abilities that ISPs may have to limit openness.

128. We seek comment on the state of competition in the BIAS market. We note that the

Commission’s 2022 Communications Marketplace Report found that, as of 2021, approximately 36

percent of households lack a competitive option for fixed broadband at speeds of 100/20 Mbps and that

70 percent of households in rural areas lack such an option.

418

While competition in the mobile BIAS

market is somewhat more significant, fixed and mobile services have not proven to be substitutable.

419

To what extent does the state of competition affect ISPs’ incentives to limit openness? Are there different

incentives for small ISPs? Similarly, to what extent does the state of competition affect ISPs’ incentives

to innovate and invest in their networks? We seek insight into whether consumers in all areas of the

country have adequate choices in the fixed and mobile broadband service market. Also, to what extent do

broadband services with substantially different technical characteristics serve as competitive substitutes?

How, if at all, do commercial practices differ in places where consumers have only one or two choices,

particularly when those choices use different technologies? Although the Commission previously found

that its authority is not predicated on a finding of market power, and this finding has twice been upheld, is

there a reason we should engage in a market power analysis now with respect to ISPs and, if so, how?

We further seek comment on whether there are other economic theories that we should consider to better

understand and assess ISP incentives to engage in practices that affect the Internet’s openness. We also

seek comment on the extent to which the state of competition in the BIAS market should play a role in

our decision as to whether or not to reclassify BIAS as a Title II service.

420

129. We further seek information on ISP conduct since the RIF Order was adopted. Are there

examples of conduct that has harmed Internet openness? We note that one 2019 study suggested that

ISPs regularly throttle video content.

421

Aside from specific examples of harm, could other factors have

deterred ISPs from engaging in any behavior that might have violated open Internet principles? For

(Continued from previous page)

417

See Peter Hoslin, 5 Streaming Deals You Can Get When You Sign Up for a New Internet Plan,

HighSpeedInternet.com (Apr. 13, 2022), https://www.highspeedinternet.com/resources/best-internet-perks

(highlighting several Internet plan bundles: AT&T with HBO Max, Verizon with Disney+, Hulu, and ESPN+, T-

Mobile with Paramount+, and Xfinity with Peacock Premium). See also supra note 78.

418

See 2022 Communications Marketplace Report at Figs. II.A.28 & II.A.29, paras. 56-58. Preliminary FCC staff

calculations using December 2022 Broadband Deployment Collection data yield similar results.

419

See 2022 Communications Marketplace Report at para. 157 (“Many households continue to subscribe to both

fixed and mobile broadband service, suggesting that these separate services offer benefits that are either

complementary or independent of each other.”) (footnote omitted). See also Fourteenth Broadband Deployment

Report at 841, para. 11 (finding that “fixed broadband and mobile wireless broadband are not substitutes in all

cases” because each type of service “enables different situational uses”).

420

See supra section III.

421

See Fangfan Li et al., A Large-Scale Analysis of Deployed Traffic Differentiation Practices, SIGCOMM ’19

(2019); see also Khalida Sarwari, Northeastern University researcher finds that wireless networks are throttling

video streaming 24/7, Northeastern Global News (Aug. 27, 2019),

https://news.northeastern.edu/2019/08/27/northeastern-university-researcher-finds-that-wireless-networks-are-

throttling-video-streaming-24-7.

Federal Communications Commission FCC 23-83

instance, while the RIF Order was published in the Federal Register in February of 2018, it was not until

the Mozilla case concluded in October of 2019 that it was clear open Internet rules would no longer be in

effect. To what degree might long-term contracts, and the general difficulty of implementing new

business models, also have played a role in making it difficult for ISPs to exploit opportunities the RIF

Order created? Could the threat of regulation have led ISPs to make voluntary commitments to maintain

service consistent with certain conduct rules established in the 2015 Open Internet Order, as they did,

422

and if so, would this threat have dimmed with time? Because broadband connections were so essential

during the pandemic, we believe ISPs have been under increased scrutiny by the Commission, the media,

and the public since March 2020, and therefore have had a strong incentive to follow their voluntary

commitments. Further, following the RIF Order, ISPs have been subject to state laws and executive

orders addressing Internet conduct.

423

How have state regulations addressing ISP conduct affected ISP

conduct nationwide? We also observe that unprecedented consumer demand for BIAS and edge

innovation that occurred during the pandemic also led to unprecedented growth for ISPs. How did this

growth impact providers’ incentives either to comply with open Internet principles or to engage in

behavior that might increase their revenues at the expense of Internet openness? Are smaller ISPs’

incentives or ability to engage in conduct that might harm Internet openness different from those facing

larger ISPs? What are the costs and advantages of waiting to act only after ISPs begin to take actions that

might harm Internet openness? Would such conduct be immediately identifiable? How quickly could

ISPs comply with new rules and what harms would occur in the meantime? Going forward, is there

reason to believe that ISPs will engage in conduct that harms the open Internet, particularly if the

Commission chooses not to adopt open Internet rules?

4. Consumer Demand and Edge Innovation

130. We believe that an important byproduct of an open Internet is the edge innovation and

consumer demand that promotes ISP investment, and seek comment on this position. In the 2015 Open

Internet Order, the Commission recognized that “innovations at the edges of the network enhance

consumer demand, leading to expanded investments in broadband infrastructure that, in turn, spark new

innovations at the edge.”

424

The Commission referred to this as the “virtuous cycle,” and it was the

foundation for the action the Commission took in both the 2010 Open Internet Order and 2015 Open

Internet Order.

425

The validity of the virtuous cycle was upheld by both the Verizon court and the USTA

422

See, e.g., Xfinity Internet Broadband Disclosures, Xfinity, https://www.xfinity.com/policies/internet-broadband-

disclosures [https://perma.cc/Y7L5-KMXD] (last visited Sept. 20, 2023) (pledging that Comcast does not block or

throttle traffic, subject to reasonable network management practices, or engage in paid prioritization arrangements);

Network Practices, AT&T, https://about.att.com/sites/broadband/network [https://perma.cc/S9HK-A6WA] (last

visited Sept. 20, 2023); Verizon Broadband Commitment, Verizon, https://www.verizon.com/about/our-

company/verizon-broadband-commitment [https://perma.cc/K29R-W95Q] (last visited Sept. 20, 2023).