Following detailed legal and economic analysis, as well as extensive examination of comments
from consumers and stakeholders, the Commission reversed the FCC’s 2015 heavy-handed utility-style regulation of broadband Internet access service, which imposed substantial costs
on the entire Internet ecosystem. In place of that heavy-handed framework, the FCC is returning to the traditional light-touch framework that was in place until 2015.
The FCC also announced transparency requirements to facilitate oversight of broadband provider conduct and restored the jurisdiction of the Federal Trade Commission to act when broadband providers engage in anticompetitive, unfair, or deceptive acts or practices.
The decision is an unpopular one among tech companies and Democrats in particular. In a written dissent, FCC Commissioner Jessica Rosenworcel said that the decision grants Internet providers 'extraordinary new power'.
“They have the technical ability and business incentive to discriminate and manipulate your internet traffic. And now this agency gives them the legal green light to go ahead,” she said.
The Declaratory Ruling, Report and Order, and Order adopted by the Commission takes the following steps:
● Restores the classification of broadband Internet access service as an “information service” under Title I of the Communications Act—the classification affirmed by the Supreme Court in the 2005 Brand X case.
● Reinstates the classification of mobile broadband Internet access service as a private mobile service.
● Finds that the regulatory uncertainty created by utility-style Title II regulation has reduced Internet service provider (ISP) investment in networks, as well as hampered innovation, particularly among small ISPs serving rural consumers.
● Finds that public policy, in addition to legal analysis, supports the information service classification, because it is more likely to encourage broadband investment and
innovation, thereby furthering the goal of closing the digital divide and benefitting the entire Internet ecosystem.
● Restores broadband consumer protection authority to the Federal Trade Commission (FTC), enabling it to apply its extensive expertise to provide uniform online protections against unfair, deceptive, and anticompetitive practices.
Report and Order
● Requires that ISPs disclose information about their practices to consumers, entrepreneurs, and the Commission, including any blocking, throttling, paid prioritization, or affiliated prioritization.
● Finds that transparency, combined with market forces as well as antitrust and consumer protection laws, achieve benefits comparable to those of the 2015 “bright line” rules at lower cost.
● Eliminates the vague and expansive Internet Conduct Standard, under which the FCC could micromanage innovative business models.
● Finds that the public interest is not served by adding to the already-voluminous record in this proceeding additional materials, including confidential materials submitted in other proceedings.
New York Attorney General Eric Schneiderman says that he will lead a multi-state lawsuit to challenge the reversal.
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