FCC's Net Neutrality Redux: Safeguarding and Securing the Open Internet

Update as of August 8, 2024: Net Neutrality Open Internet Order Stayed - The U.S. Court of Appeals for the 6th Circuit is hearing the consolidated petitions for review of the FCC's Open Internet Order. In a per curiam opinion issued August 1, the court granted petitioners' motion to stay pending review finding that the petitioners were likely to succeed on the merits of their challenge to the Order based on the FCC's failure "to show that Congress clearly delegated [the FCC] authority to resolve [the] major question" of the classification of broadband service. The court ordered expedited briefing and set the matter for argument the last week of October. The original version of our advisory is below.

On May 7, 2024, the Federal Communications Commission (FCC) issued its latest network neutrality order, Safeguarding and Securing the Open Internet (the "Order"), which was published in the Federal Register on May 22, 2024, making it mostly effective July 22, 2024. This massive document (more than 500 single-spaced pages in all) reinstates, with a few significant modifications, the network neutrality rules that the agency had previously imposed in 2015 (in the Open Internet Order), but which were set aside in 2017 (in the Restoring Internet Freedom, or RIF Order, and the Order on Remand, when the agency shifted from Democratic to Republican control following the 2016 election). Parties have asked the FCC to stay the Order and filed Petitions for Review challenging the Order in court.

Summary of Key Elements of the Order

The Order takes the following key steps (discussed in more detail below):

• Reclassifies broadband as a telecommunications service. The Order reclassifies broadband Internet access service ("BIAS") as a "telecommunications service" as defined in the Communications Act. The Order retains the now-standard definition of BIAS as a "mass-market retail service … that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints."
• Exempts broadband from a range of otherwise-applicable telecommunications regulations. The Order exempts BIAS from a wide swath of statutory and regulatory provisions to which other telecommunications services are subject, including forbearance from rate regulation.
• Imposes "net neutrality" rules. The Order imposes several rules on BIAS providers:
  • Transparency. The Order expands the interpretation of the existing disclosure rule to include more detailed information about network performance, network management practices, and commercial terms. Providers with fewer than 100,000 subscribers are exempt from the more detailed network performance disclosures.
  • No blocking. Providers may not block end user access to lawful content, applications, or services, and may not forbid the use of non-harmful devices by end users, subject to reasonable network management practices. The order calls out copyright infringements and child sexual abuse materials as examples of illegal content that providers may block.
  • No throttling. Providers may not throttle (rate-limit) or otherwise impair or degrade service based on end user access to lawful content, applications or services, or use of non-harmful devices, subject to reasonable network management practices.
  • No paid prioritization. Providers may not charge edge providers (websites, applications, etc.) for faster/better transport across the BIAS provider's network, including by traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, and may not provide similar benefits for traffic from affiliated edge providers.
  • General duty of reasonableness. Providers may not unreasonably interfere with or disadvantage: (a) end users' ability to access lawful content, applications, or services, or use non-harmful devices of their choice; or (b) edge providers' ability to make lawful content, applications, or services available to end users, subject to reasonable network management practices.
  • Oversight of Internet traffic exchange arrangements. The FCC does not claim direct regulatory authority over arrangements between BIAS providers (who serve end users) and other "upstream" Internet networks but will assert jurisdiction over such arrangements if they interfere with end user access to lawful content, applications, or services.
  • Definition of "reasonable network management" practices. A network management practice must have "a primarily technical network management justification," but "network management" does not include "other business practices." A practice is "reasonable" if "it is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service."
• Limited action on other key issues. The Order notes but does not resolve several issues arising from reclassifying BIAS as a telecommunications service.
  • Universal service. Revenues from telecommunications services are generally subject to a substantial assessment – more than 30% – to support universal service (service in high-cost areas, service for low-income consumers, and service for schools, libraries, and rural healthcare providers). Even though recipients of universal service funding must provide broadband along with voice services, BIAS providers do not have to pay to support universal service – for now.
  • Privacy. Providers of telecommunications services – now including BIAS providers – are subject to a general obligation to protect the confidentiality of proprietary information of other telecommunication carriers (including resellers), equipment manufacturers, and customers. Providers of traditional telecommunications services are also subject to specific rules limiting disclosure of "customer proprietary network information" and requiring reporting of data breaches. BIAS providers, however, are not subject to the more specific rules unless those rules already apply because the provider also provides traditional telecommunications services.
  • Access to poles, conduits, and rights-of-way. The order notes that because BIAS is now a telecommunications service, entities that seek to provide BIAS without also providing cable or traditional telephone service have pole attachments rights under Section 224 of the Communications Act and protections against state and local barriers to entry under Section 253.
  • Disability access requirements. Providers of BIAS are now subject to Section 255(c) of the Communications Act, which requires providers to "ensure" that their service "is accessible to and usable by individuals with disabilities, if readily achievable," as well as to Part 6 of the FCC rules. The Order stresses that network management practices should not interfere with connectively for video conferencing services, which the FCC notes have become increasingly important for persons with disabilities.

A Deeper Dive

In broad strokes, the FCC's decisions in the Order – from the legal logic of the classification of BIAS as a telecommunications service, to the content of the new rules, to the exceptions from generally applicable telecommunications regulations – are the same as in the agency's 2015 Open Internet Order. We discuss the most important of those re-created rulings below. In addition, there are some interesting and potentially significant differences between this order and the 2015 Open Internet Order, which we also discuss below.

As noted above, the Order is extremely lengthy and detailed. We strongly recommend that BIAS providers and other interested parties carefully review the Order and consult with counsel about how the rulings in the Order may affect their decisions and operations going forward. With that caveat, however, set out below is a more in-depth discussion of the Order's key holdings.

A more demanding transparency rule for large BIAS providers

The FCC first adopted a transparency rule in 2010, requiring BIAS providers to disclose accurate information about network management practices, network performance, and commercial terms (pricing, etc.). The FCC reaffirmed that rule in the 2015 Open Internet Order. In the 2017 RIF Order, the FCC modified the rule somewhat. The Order reinstates the 2015 rule.

The transparency rule requires BIAS providers to disclose information "sufficient for consumers to make informed choices regarding use of such services." The 2017 version, from the RIF Order, states that the information must be sufficient for "entrepreneurs and other small businesses to develop, market, and maintain internet offerings." The rule in the Order specifies that disclosures must be sufficient for "content, application, service, and device providers to develop, market, and maintain Internet offerings."

The 2017 RIF Order eliminated the requirement that BIAS providers disclose information about packet loss on their networks, but the Order reinstates that obligation.

The 2017 RIF Order permitted providers to disclose network performance (such as actually achieved data rates) on a reasonably aggregated basis. The Order requires that reported performance must be geographically disaggregated so that a consumer in a given area can learn what to reasonably expect from a BIAS offering. Moreover, the Order requires disclosure of performance over a reasonable period of time and during times of peak usage so that consumers will know how the provider's network performs under conditions of maximum congestion. The Order does not, however, require disclosure of the source, location, timing, or duration of network congestion.

The obligations to report packet loss and geographically granular performance will not apply to BIAS providers with 100,000 or fewer customers.

The Order also requires that BIAS providers make their disclosures on the BIAS provider's website and not simply report them to the Commission (which was an option under the 2017 RIF Order). Moreover, the disclosures must be in machine-readable format, such as a .csv file, to facilitate consumers comparing the reported performance of different BIAS providers.

Finally, the Order reinstates the requirement from the 2015 Open Internet Order that BIAS providers give consumers direct notice that their usage is about to trigger a change in performance level (e.g., a rate limitation after the consumer has used up their data allowance). As with packet loss and granular geographic reporting, this requirement does not apply to BIAS providers with 100,000 or fewer customers.

Reinstating the "reasonable network management" exception

The 2017 RIF Order did not forbid blocking or throttling and so did not need to impose a carve-out for "reasonable network management." The Order reinstates the no-blocking and no-throttling rules and so also reinstates the carve-out from those rules for "reasonable network management." This exception will only apply to practices that have a "primarily technical network management justification," rather than a justification based on "other business practices." The no-blocking rule also prohibits BIAS providers from charging edge providers a fee to avoid having edge providers' content, services, or applications blocked from reaching BIAS providers' end-user customers.

If a technical justification exists, the FCC will assess whether a network management practice is reasonable based on the specific technology of a BIAS provider's network. Landline, mobile, and satellite BIAS providers will be able to adopt practices that make sense considering the constraints of their individual network technologies. The FCC specifically states that providers may implement practices needed for network security and that block traffic unwanted by end users (such as spam or malware) and does not prevent or restrict a BIAS provider from refusing to transmit unlawful material, such as child sexual abuse material or copyright-infringing materials. The FCC will consider (that is, view more leniently) practices for managing congestion that only apply during times of actual congestion. Congestion management practices should be "as application-agnostic as possible."

A potentially problematic approach to preemption

The 2017 RIF Order purported to broadly preempt state-level regulation of broadband. However, the D.C. Circuit ruled that the FCC could not preempt state regulation when the theory of the RIF Order was that the FCC lacked regulatory authority over broadband in the first place.

The Order takes a different approach, stating that it will preempt "any state or local measures that interfere or are incompatible with the federal regulatory framework we establish today." However, the FCC will undertake preemption on a case-by-case basis. Moreover, the FCC notes that different states may legitimately impose different requirements regarding (for example) "customer relationships and billing practices." In this regard, the FCC expressly declined to preempt California's "Internet Consumer Protection and Network Neutrality Act of 2018" on the ground that the law tracked the rules and requirements of the 2015 Open Internet Order that were set aside by the 2017 RIF Order and thus largely "mirror or parallel" the new Order's rules.

The Order's case-by-case approach to preemption could be problematic in that it may encourage states to impose potentially onerous regulations on BIAS providers under the rubric of consumer protection, in the hope that the regulations will either not be challenged or will survive a preemption attack at the FCC. It remains to be seen how this concern will play out in practice.

Broad forbearance from Title II obligations

Even while imposing net neutrality rules on BIAS providers – which, at a high level, boil down to fulfilling the basic common carrier obligations of nondiscrimination and reasonable conduct – the FCC did not want to impose most of the other, detailed obligations the Communications Act and the agency's own rules impose on telecommunications carriers. So, just as it did in the 2015 Open Internet Order, in the Order the FCC used its authority under Section 10 of the Act to "forbear" from applying a wide swath of those obligations.

Here are the key regulatory obligations to which BIAS providers will not be subject under the Order (at least for now):

• Rate regulation. The Commission will not engage in any ex ante or ex post rate regulation.
• Tariffing. BIAS providers will not have to file a schedule of rates and charges (i.e., tariffs) for their BIAS offerings.
• Rate investigations. The Commission will not investigate BIAS provider rates and practices, nor will it concern itself about interlocking directorates.
• Information collection. Other than in the national security and public safety context, the FCC will not apply a range of statutory provisions that authorize collection of information from carriers. However, in connection with universal service programs designed to direct funding to unserved or underserved areas, the FCC is continuing to collect data to create the National Broadband Map showing what level of Internet service is available at individual locations.
• Interconnection and market-opening provisions. The FCC will not apply Sections 251, 252, and 256 of the Act to BIAS providers. These provisions give the Commission broad authority to direct carriers to interconnect with each other, to unbundle their networks, and to offer certain resold services to other carriers. The Section 251/252 framework in particular was enacted to foster competition in the landline voice telephony business and has little application to BIAS. Note, however, that the FCC retains authority to require carriers – now including BIAS providers – to interconnect with other carriers under Section 201(a) of the Act, and specifically calls out the terms of BIAS providers' upstream connections to other networks as falling within the scope of its regulation of BIAS.
• Miscellaneous. The FCC also forbears from other miscellaneous Title II requirements, including truth-in-billing, roaming, slamming (unauthorized carrier changes) and terminal equipment rules. These provisions are generally inapplicable to or unnecessary for the broadband market.

While the FCC exempted BIAS providers from the provisions noted above, it determined that it would not forbear from applying certain other obligations of telecommunications carriers. The key obligations that will apply to BIAS providers are:

• General regulatory powers under Sections 201 and 202 of the Act. These provisions require regulated entities to offer their services on just, reasonable, and nondiscriminatory terms. The Order concludes that the FCC cannot forbear from these provisions because they are the bedrock statutory basis for the net neutrality rules that the agency is imposing. The FCC will enforce these provisions in case-by-case adjudications, which necessarily creates a certain degree of legal and regulatory uncertainty for BIAS providers. The agency has signaled that it will use this authority "to preserve Internet openness" and believes that this approach will foster innovation and competition at the "edge."
• Enforcement provisions. Sections 206, 207, and 208 of the Communications Act establish that carriers are liable for violations of the Act and the Commission's rules and provide the Commission with the power to enforce those requirements. Again, the Commission could not forbear from these provisions without sacrificing its ability to enforce its newly-enacted rules.
• Data privacy protection obligations under Section 222. The general provisions of Section 222 that require carriers to protect the confidentiality of customer proprietary information will apply to BIAS providers. However, the FCC waived its rules implementing Section 222, both because those rules were designed to address privacy issues in the traditional voice telephony context and to avoid raising concerns arising from the fact that in 2017, Congress voided the agency's earlier, BIAS-specific privacy rules under the Congressional Review Act. While the specific rules governing the protection of "customer proprietary network information" will not apply to BIAS providers per se, those rules will continue to apply to any provider offering voice telephone service.
• Authorization to construct and operate network facilities under Section 214. The FCC retains its authority to grant or deny entities authority to construct and operate network facilities. However, it grants blanket authority to all existing BIAS providers to continue to operate and new providers to enter the market. In addition, the FCC waives current rules implementing sections 214(a)-(d) but retains its authority to examine whether any 214 rules should apply in the future. The agency emphasized, however, that it will retain its authority to deny permission to particular entities, including the specific Chinese entities that it recently excluded from operating telecommunications networks in the United States.
• Pole, conduit, and right-of-way access. Section 224 of the Act, which protects carrier (and cable operator) access to utility poles, remains in effect for BIAS providers, meaning that BIAS-only providers, which did not have any federal pole attachment rights before, now have such rights. In addition, Section 253 of the Act, which prevents state or local governments from impeding carriers from offering their services – including in the context of access to rights-of-way – remains in effect and applicable to BIAS providers.
• Universal service obligations. The Order temporarily exempts BIAS providers from paying into the universal service funding system, but they remain generally subject to universal service obligations to the extent that they become "eligible telecommunications carriers" that take on such obligations.
• Accessibility for disabled consumers. BIAS providers are subject to carrier obligations to ensure that their services are available to people with disabilities.

No BIAS-specific privacy rules

In addition to the specific statutory privacy obligations established by Section 222 of the Act governing the confidentiality of voice service-related "customer proprietary network information" ("CPNI"), the FCC has interpreted Section 222(a) and the general "reasonableness" requirement of Section 201(b) as establishing a general requirement for carriers to protect the confidentiality of customer information that does not fall under the definition of CPNI. Relying on these two statutory provisions, the agency recently promulgated detailed and potentially onerous data security and data breach reporting obligations on all traditional telecommunications carriers. The Order waives those specific rules, at least for now, for BIAS providers. In the meantime, providers have challenged the data security and data breach rules in the Sixth Circuit, arguing that Section 222 does not provide the FCC with authority to regulate customer privacy other than with respect to CPNI.

One reason for exempting BIAS providers from the new rules is that the agency did not have BIAS providers in mind when it formulated those rules. Beyond that, however, the agency seems to be pursuing some other goals as well.

First, as noted above, for some time the agency has contended that Section 222(a) imposes a general obligation to protect customer information, separate and apart from the specific obligation on carriers to protect CPNI. The Order reasserts that view, which many industry participants dispute.

Second, the agency also contends that it has authority to impose privacy and data security obligations under the general "just and reasonable" standard in Section 201, which, again, many industry participants dispute.

Third, in the wake of the 2015 Open Internet Order, in 2016 the agency separately issued an order (the "2016 Privacy Order") along with a set of detailed and onerous privacy rules specifically applicable to BIAS providers, relying on Sections 222(a) and 201(b) as authority. This action proved so controversial that Congress invoked the seldom-used Congressional Review Act (CRA) to invalidate those BIAS-specific privacy rules in 2017. Under the CRA, the invalidation of the old rules means that the agency may not adopt new rules that are "substantially the same" as the old ones without further authorization from Congress. By exempting BIAS providers from the agency's recently-adopted data security rules and leaving BIAS privacy issues to case-by-case adjudication under Section 201(b) and Section 222(a), and giving BIAS providers "leeway in the details of how they go about complying with those obligations to a materially greater extent than the much more prescriptive 2016 rules," the Order attempts to protect this aspect of its holdings from CRA-based attacks. It remains to be seen whether this protection will prove sufficient on appeal.

Pole attachment rights

The Order restores Section 224 pole attachment protections to BIAS-only providers, including both wireline and wireless providers, giving them the same rights as cable system operators and telecommunications service providers to non-discriminatory access to investor owned utility poles guaranteed by Section 224(f). In addition, ISPs attaching to such poles in 26 states where pole attachment rates, terms and conditions are regulated by the FCC may now avail themselves of FCC rules which, among other things, establish pole access timelines, limit pole attachment rates and allocation of pole-related costs, and establish procedures for resolving pole attachment disputes.

Moreover, the classification will automatically apply in two "reverse preemption" states that have adopted FCC pole attachment rules outright (Pennsylvania and West Virginia) and in states that have limited preemption of the FCC's regulation to cable television system access. Notably, some of the remaining states that have reverse preempted the FCC already have extended their rules to cover broadband service providers. Other reverse preemption states may choose to amend their laws to ensure that their pole attachment rules cover BIAS providers.

In response to comments filed by the California Public Utility Commission, the FCC also declared that reclassification provides states with the requisite legal authority to protect public safety concerns associated with broadband-only infrastructure. While this may bolster a state's ability to extend existing regulations to broadband, a state's ability to do so will also depend on the specific state laws governing this area.

Protection of market entry and competitive fairness

Section 253 of the Act (for any telecommunications carrier) and Section 332 of the Act (for wireless carriers) protect against state or local governments taking actions that unduly interfere with the ability of a carrier to enter a market and offer its services, including, specifically, unreasonable or discriminatory restrictions on access to public rights-of-way for placing communications facilities. With reclassification, BIAS providers may now seek FCC or court intervention under those provisions when state or local regulations effectively prohibit the provision of BIAS services including by restricting competitive deployment.

Rules to enhance competition in multi-tenant environments (MTEs)

The FCC concluded that reclassification of BIAS means that the agency's rules regarding the provision of telecommunications or cable services in MTEs (such as apartment and office buildings) now apply to BIAS-only providers. According to the FCC, it may now require BIAS-only providers to comply with the same requirements that apply to telecommunications and cable providers in MTEs, including rules that prohibit exclusive access and service contracts, as well as "graduated revenue sharing" where the landlord/owner receives greater compensation as the percentage of residents taking the service rises.

Accessibility for consumers with disabilities

Because BIAS is now classified as a telecommunications service, BIAS services and equipment must be made accessible to and usable by persons with disabilities in accordance with Part 6 of the FCC rules. As noted by the FCC, people who are deaf, hard of hearing, deafblind, or have speech disabilities increasingly rely on IP-based video conferencing services to communicate. These services, like IP-based video relay service, require multiparty synchronous high definition video to accommodate sign language communication. Practically speaking, this means that BIAS providers may not adopt network management practices that have the effect of degrading the connections carrying video communications of persons with hearing and disabilities, such as blocking or throttling, bandwidth limits, data caps, or requirements to pay additional fees to obtain sufficient capacity. It also means that the means for accessing BIAS and any customer support for BIAS, including bills and technical support, must also be accessible to persons with disabilities.

In the 2015 Open Internet Order, the FCC described the extension of its accessibility rules to BIAS as essentially already covered by its accessibility rules governing Advanced Communications Services ("ACS"). The current Order, however, acknowledges a distinction, stating clearly for first time that BIAS is not ACS. Notably, BIAS, like traditional telecom and interconnected VoIP services, is subject to a lower standard of achievement ("readily achievable," i.e., accomplishable without much difficulty or expense) than applies to ACS ("achievable," i.e., with reasonable effort or expense). However, video conferencing services that rely upon BIAS are a form of ACS, so this may be a distinction without a purpose.

National security, public safety, and network reliability: new policy justifications for reclassifying broadband as a telecommunications service

The main policy justification for reclassifying broadband as a telecommunications service in the 2015 Open Internet Order was that broadband providers had the incentive and ability to interfere with people's ability to access the online content they wanted. Expressly barring BIAS providers from such interference would protect the "virtuous cycle" of innovation by edge providers driving demand for broadband, leading to increased investment in broadband infrastructure.

The Order certainly mentions the importance of the "virtuous cycle" but does not emphasize it. Instead, the policy focus of the Order is that treating BIAS as a telecommunications service will allow the FCC to protect national security, promote cybersecurity, enhance public safety, monitor and enhance network resiliency and reliability, and protect consumer privacy and data security.

This shift in policy emphasis does not directly affect the agency's legal analysis underlying the Order's reclassification of broadband. At the same time, this shift is not merely cosmetic. Whatever may have been true a decade ago, today the Internet is so deeply embedded in the country's cultural, political, and economic life – and the international environment is so much more tense – that the risks of leaving this critical infrastructure unmonitored and unregulated are, from the agency's perspective, too great. The time since the Open Internet Order has seen a vast increase in remote work, remote learning, and remote healthcare – driven by the COVID-19 pandemic – all of which depend on a robust, resilient, reliable Internet. During that same time, the FCC has banned the use of certain Chinese equipment in United States telecommunications networks and barred certain Chinese entities from owning those networks. Classifying broadband as a telecommunications service is the most straightforward and direct way under existing law to bring broadband networks under federal supervision.

This shift in policy emphasis also constitutes a form of "political insurance" for reclassification if Republicans retake control of the agency following the 2024 election. The 2015 Open Internet Order was framed as an exercise of economic and consumer protection regulation, which made it an easy target for a deregulation-minded Republican-controlled FCC. But even if a new Republican majority in 2025 is skeptical of the need to regulate BIAS to protect consumers and encourage investment, promoting national security and protecting critical infrastructure against foreign adversaries – the focus of the Order – are likely to retain bipartisan appeal. The shift in policy emphasis in the Order may make it less likely that a future Commission would reverse the reclassification of broadband as a telecommunications service.

New legal vulnerabilities: a potentially weakened Chevron doctrine and the major question doctrine

Chevron

Every major court decision addressing an FCC ruling classifying broadband either as a telecommunications service or as an information service has expressly and heavily relied on the Chevron doctrine, under which courts defer to an agency's interpretation of its own statute if that interpretation is, broadly speaking, reasonable. The Supreme Court in Brand X relied on Chevron to uphold the FCC's then-current classification of cable broadband as an information service. The D.C. Circuit in USTA relied on Chevron to uphold the FCC's 2015 reclassification of broadband, in the Open Internet Order, as a telecommunications service. And the D.C. Circuit in Mozilla relied on Chevron to uphold (for the most part) the FCC's 2017 second reclassification of broadband, in the RIF Order, as (again) an information service.

If Chevron remains good law, courts may view the Order as reflecting a reasonable reading of the definitions in the Communications Act as applied to broadband – just as occurred with the 2015 Open Internet Order – and defer to the Commission's reclassification. But it is widely anticipated that the current Supreme Court, perhaps even this term, will cut back on the scope of Chevron. If that happens, reviewing courts may be less likely to defer and instead would have more leeway to determine not just whether the FCC's current interpretation of the Act is broadly reasonable, but also whether that interpretation represents the "best" or "correct" reading of the law. Anticipating this possibility, the Order takes great pains to explain why, in the agency's view, its reading of the law is not only reasonable but is, in fact, correct – an apparent effort to protect its reclassification decision against the possible demise of Chevron.

In this regard, while opponents of excessive regulation generally favor cutting back on Chevron, here a victory on that issue could be a double-edged sword. If Chevron is no longer good law, and if it turns out that the courts agree with the FCC that the Communications Act requires treating broadband as a telecommunications service, this would limit the ability of even a future conservative, deregulation-minded FCC to reclassify and deregulate broadband service.

The major question doctrine

Since the time of the FCC's 2015 Open Internet Order, the Supreme Court has, on several occasions, clarified and expanded the major question doctrine, which says that agencies are not permitted to interpret a broad, general grant of authority as including the power to decide "major questions" – that is, questions with "vast economic and political significance." Under this doctrine, for an agency to address such questions requires express authorization from Congress. Some opponents of classifying broadband as a telecommunications service argued before the FCC that this would constitute action on a "major question," which, they argue, is a step the agency may not take because Congress has not expressly authorized it.

The Order rejects that claim, for several reasons. It argues that the major question doctrine does not apply to this decision at all, since regulating communications networks is the agency's core function. It notes that Congress has not provided any guidance on the question of classification of Internet access (both broadband and dial-up) even though the agency has addressed the issue in a range of contexts since at least 1998; according to the Order, this indicates that Congress is content to leave the issue to the agency's discretion. And the agency argues that treating broadband as a telecommunications service simply does not have the "vast economic and political significance" required to bring the major question doctrine into play.

Given the Supreme Court's expansion of the major question doctrine in recent years, it is highly likely that parties opposing the Order will raise this issue as part of their challenges in court.

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DWT's communications and privacy and security groups are familiar with all aspects of the new net neutrality regime. Readers should feel free to reach out to us with any questions about how the new rules will apply to or affect BIAS provider operations going forward.