FCC begins Title II roll back

As anticipated, the Federal Communications Commission has taken the first step toward restoring what it describes as Internet freedom and promoting infrastructure investment, innovation, and choice, by proposing to end utility-style regulation of broadband Internet access service.

In a Notice of Proposed Rulemaking, the FCC proposes to return to the bipartisan framework that it claims preserved a flourishing free and open Internet for almost 20 years. First, the Notice proposes to reverse the FCC’s 2015 decision to impose ‘heavy-handed’ Title II utility-style government regulation on Internet service providers (ISPs) and return to what it says is the longstanding, successful light-touch framework under Title I of the Communications Act.

Second, the Notice proposes to return to the Commission’s original classification of mobile broadband Internet access service as a private mobile service. Given the historical innovation and success of the wireless marketplace prior to the Title II Order, this proposal is expected to substantially benefit consumers and the marketplace, says the FCC.

Third, the Notice proposes to eliminate the catch-all Internet conduct standard created by the Title II Order. Because the Internet conduct standard is extremely vague and expansive, ISPs must guess at what they are permitted to do. Eliminating the Internet conduct standard is therefore expected to promote innovation and network investment by eliminating regulatory uncertainty.

The Notice also seeks comment on whether the Commission should keep, modify, or eliminate the bright-line rules established by the Title II Order.

In a detailed Statement, FCC Chairman Ajit Pai, a known critic of the Obama administration’s ‘Open Internet’ network neutrality proposals, said “the Internet wasn’t broken in 2015. We were not living in a digital dystopia. Nonetheless, the FCC that year succumbed to pressure from the White House and changed course. Even though the FCC couldn’t find any evidence of market failure, it turned its back on almost two decades of success. It imposed upon all Internet service providers (ISPs), big and small, the heavy-handed regulatory framework designed during the Roosevelt Administration to micromanage the AT&T telephone monopoly. These utility-style regulations, known as ‘Title II’, were and are like the proverbial sledgehammer being wielded against the flea—except that here, there was no flea,” he said.

“Today, we propose to repeal utility-style regulation of the Internet. We propose to return to the Clinton-era light-touch framework that has proven to be successful. And we propose to put technologists and engineers, rather than lawyers and accountants, at the centre of the online world. The evidence so far strongly suggests that this is the right way to go,” he claimed.

He said the Notice was the start of a new chapter in the public discussion about how the FCC could best maintain a free and open Internet while making sure that ISPs have strong incentives to bring next-generation networks and services to all Americans.

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