Open Internet

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On October 19, 2023, the FCC opened a Notice of Proposed Rulemaking (NPRM) proceeding designed to restore open Internet protections for consumers and businesses. The enforcement of open Internet protections was the responsibility of the FCC from 2005 to 2018. At that time FCC oversight of the Internet ended and, per the NPRM, there is currently no expert agency ensuring that the Internet is fast, open, and fair. The NPRM seeks comment on the FCC’s proposal to reestablish the FCC’s authority over broadband Internet access service by classifying it as a telecommunications service under Title II of the Communications Act. The FCC believes its proposal would provide the Commission with the authority necessary to safeguard the open Internet, advance national security, and protect public safety. The NPRM also proposes to reestablish conduct rules for ISPs that would provide a uniform national approach for safeguarding Internet openness as compared to the current patchwork of state rules and requirements. The following are some of the key elements of the NPRM:

* The NPRM proposes to reestablish the framework adopted in 2015 to classify broadband Internet access service as a telecommunications service and to classify mobile broadband Internet access service as a commercial mobile service.

* The Commission’s proposal would forbear from 26 Title II provisions and clarifies that the Commission will not regulate rates or require network unbundling.

* By establishing a uniform national regulatory approach, the Commission aims to prevent Internet access service providers from engaging in practices harmful to consumers by:
* Reinstating rules that prohibit blocking, throttling or engaging in paid or affiliated prioritization arrangements.
* Reinstating a general conduct standard prohibiting unreasonable interference or disadvantage to consumers or edge providers.
* Retention of disclosure requirements under the current transparency rules as well as seeking comment on additional enhancements including the current broadband label requirements.

Comments on the NPRM are due December 14,2023 and Reply comments are due January 17, 2024. Undoubtedly the level of comments will be voluminous and will reflect disparate opinions by providers from different sectors of the industry. We will provide additional updates and information as the situation evolves.

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