September 28, 2023 FCC FACT SHEET* Safeguarding and

September 28, 2023

FCC FACT SHEET

Safeguarding and Securing the Open Internet

Notice of Proposed Rulemaking – WC Docket No. 23-320

Background: This Notice of Proposed Rulemaking, if adopted, would 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. 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. But even as our society has reconfigured itself to

do so much online, 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 Federal Communications Commission had played

that role, but the Commission abdicated that responsibility in 2018, just as the Internet was becoming

more vital than ever. This Notice proposes to classify broadband Internet access service as a

telecommunications service and provide the Commission with authority necessary to safeguard the open

Internet, advance national security, and protect public safety. The Notice also proposes to reestablish

conduct rules for Internet service providers that would provide a uniform, national approach for

safeguarding Internet openness, replacing the current patchwork of state requirements.

What the Notice of Proposed Rulemaking Would Do:

 Propose to reestablish the framework the Commission 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.

 Propose that reclassification would provide the Commission with additional authority to

safeguard national security, advance public safety, protect consumers, and facilitate broadband

deployment.

 Propose to forbear from 26 Title II provisions, and clarify that the Commission will not regulate

rates or require network unbundling.

 Propose to reestablish a uniform, national regulatory approach to protect the open Internet by

preventing broadband Internet access service providers from engaging in practices harmful to

consumers, including:

o Proposing to reinstate straightforward, clear rules that prohibit blocking, throttling, or

engaging in paid or affiliated prioritization arrangements;

o Proposing to reinstate a general conduct standard that would prohibit unreasonable

interference or unreasonable disadvantage to consumers or edge providers; and

o Proposing to retain the disclosure requirements under the current transparency rule and

seeking comment on the means of disclosure, the interplay between the transparency rule

and the broadband label requirements, and any additional enhancements or changes.

This document is being released as part of a “permit-but-disclose” proceeding. Any presentations or views on the

subject expressed to the Commission or its staff, including by email, must be filed in WC Docket No. 23-320, which

may be accessed via the Electronic Comment Filing System (https://www.fcc.gov/ecfs/). Before filing, participants

should familiarize themselves with the Commission’s ex parte rules, including the general prohibition on

presentations (written and oral) on matters listed on the Sunshine Agenda, which is typically released a week prior to

the Commission’s meeting. See 47 CFR § 1.1200 et seq.

Federal Communications Commission FCC-CIRC2310-01

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: [] Released: []

By the Commission:

Comment Date: December 14, 2023

Reply Date: January 17, 2024

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 ....................................................................................... 54

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

Broadband Service .................................................................................................................. 55

C. Scope of Reclassification ............................................................................................................... 58

D. Classifying Broadband Internet Access Service as a Telecommunications Service ...................... 67

E. Classifying Mobile Broadband Internet Access Service as a Commercial Mobile Service .......... 84

F. Preemption of State and Local Regulation of Broadband Service ................................................. 93

IV. PROPOSED FORBEARANCE ........................................................................................................... 97

A. Forbearance Framework ................................................................................................................ 99

B. Proposed Forbearance .................................................................................................................. 103

This document has been circulated for tentative consideration by the Commission at its October open meeting.

The issues referenced in this document and the Commission’s ultimate resolution of those issues remain under

consideration and subject to change. This document does not constitute any official action by the Commission.

However, the Chairwoman has determined that, in the interest of promoting the public’s ability to understand the

nature and scope of issues under consideration, the public interest would be served by making this document

publicly available. The FCC’s ex parte rules apply and presentations are subject to “permit-but-disclose” ex parte

rules. See, e.g., 47 C.F.R. §§ 1.1206, 1.1200(a). Participants in this proceeding should familiarize themselves with

the Commission’s ex parte rules, including the general prohibition on presentations (written and oral) on matters

listed on the Sunshine Agenda, which is typically released a week prior to the Commission’s meeting. See 47 CFR

§§ 1.1200(a), 1.1203.

Federal Communications Commission FCC-CIRC2310-01

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

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 services (or Internet interconnection services), 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

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) and

47 U.S.C. § 332(c)(2)).

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.

Federal Communications Commission FCC-CIRC2310-01

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 uniform, 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 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.

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) (COVID-19 Telehealth Program

Order) (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) (Digital Discrimination NPRM) (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, 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

(continued….)

Federal Communications Commission FCC-CIRC2310-01

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

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,

105

the Commission has undertaken significant efforts to improve supply chain

security. 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

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.4th 421 (5th 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 and

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-CIRC2310-01

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

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

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

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).

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) (2014 Open Internet NPRM).

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

Id.

Id. at 17946, paras. 74-75. The 2010 Open Internet Order also address 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.

Federal Communications Commission FCC-CIRC2310-01

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

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 services (or Internet interconnection services), 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

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) and

47 U.S.C. § 332(c)(2)).

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.

Federal Communications Commission FCC-CIRC2310-01

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

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

USTA, 825 F.3d 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.

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).

Federal Communications Commission FCC-CIRC2310-01

Order and the RIF Order recognized this authority.

231

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.

232

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.”

233

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.

68. 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.”

234

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.”

235

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.”

236

When Congress enacted the definitions of

“telecommunications service” and “information service” in the 1996 Act,

237

it substantially incorporated

the “basic” and “enhanced” service classifications from the Computer Inquiries line of decisions.

238

(Continued from previous page)

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’”); Brand X, 545 U.S. 967, 980-82 (2005) (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) (NARUC I) (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”).

231

See, e.g., 2015 Open Internet Order, 30 FCC Rcd at 5742, 5743-44, paras. 328, 331-32, 333-35; RIF Order, 33

FCC Rcd at 403-405, paras. 155-56.

232

See, e.g., Mozilla, 940 F.3d at 23-24, 43, 50, 53-54, 55-56, 63-64; USTA, 825 F.3d at 701-702, 704, 708-10, 723-

24.

233

Brand X, 545 U.S. at 981 (quoting Chevron, 467 U.S. at 863-64) (emphasis added; internal quotation marks

omitted).

234

47 U.S.C. § 153(50).

235

47 U.S.C. § 153(53).

236

47 U.S.C. § 153(24).

237

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).

238

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.

(continued….)

Federal Communications Commission FCC-CIRC2310-01

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

244

—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.

70. 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.”

245

As discussed above,

246

we believe that users rely on

BIAS to transmit “information of the user’s choosing,” “between or among points specified by the

user.”

247

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.’”

248

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.”

249

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.

250

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.”

251

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

2015 Open Internet Order.

252

We seek comment on the analysis that BIAS provides

“telecommunications,” including whether there is any reason to depart from it.

71. We further tentatively conclude that there is no change or modification to the form or

244

Id.; see also Brand X, 545 U.S. at 1008 (Scalia, J., dissenting) (quoting Cable Modem Declaratory Ruling, 17

FCC Rcd at 4799, para. 1).

245

47 U.S.C. § 153(50).

246

See supra section III.A; see also 2015 Open Internet Order, 30 FCC Rcd at 5761, para. 361.

247

47 U.S.C. § 153(50).

248

2015 Open Internet Order, 30 FCC Rcd at 5761-62, para. 361.

249

Id.

250

Id.

251

Id.

252

RIF Order, 33 FCC Rcd at 341-43, para. 52.

Federal Communications Commission FCC-CIRC2310-01

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

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-

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 additional 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 Act, § 60102 (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-CIRC2310-01

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

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

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”).

Federal Communications Commission FCC-CIRC2310-01

service.

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

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

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

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).

Federal Communications Commission FCC-CIRC2310-01

hotspots,

or mobile security apps.

We seek comment generally on how BIAS offerings are advertised

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 uniform,

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.

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-

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-CIRC2310-01

113. 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

114. 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 strong standard of conduct designed to prevent deployment of new

practices that would harm Internet openness, and enhancements to the existing transparency rule.

392

In the

RIF Order, the Commission broke with this longstanding approach by altogether eliminating the open

Internet conduct rules,

393

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 uniform, national regulatory approach toward BIAS.

115. 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.

394

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

116. 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.

395

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, reliance on the Commission’s communications sector

expertise to address harmful conduct, ISPs’ incentives and abilities to harm Internet openness, the effects

of harmful conduct on consumer demand and edge innovation, 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

117. In the 2015 Open Internet Order, the Commission found that Internet openness helps

392

Id. at 5603, para. 4.

393

RIF Order, 33 FCC Rcd 311.

394

See supra notes 1 and 59.

395

See supra section III.A.

Federal Communications Commission FCC-CIRC2310-01

the RIF Order’s hands-off approach to BIAS has led to the very patchwork of state-by-state open Internet

requirements it sought to avoid.

We remain concerned that a patchwork of 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 uniform 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, a responsibility that underlies its other statutory

obligations.

We seek comment generally on how reclassification would advance the Commission’s

(Continued from previous page)

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.

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, 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). 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 III.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 also The White House, Presidential Policy Directive 21: Critical Infrastructure Security and

(continued….)

Federal Communications Commission FCC-CIRC2310-01

fulfillment of its national security responsibilities and how it specifically would affect the Commission’s

efforts, in coordination with other agencies, 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

(Continued from previous page)

Resilience (PPD-21) (Feb. 12, 2013) (directing the FCC to exercise its authority and expertise to identify and

address vulnerabilities in the communications sector).

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.4th 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 9th 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, FCC 22-22, 2022 WL 905270 (Mar. 23, 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, aff’d, China Telecom (Americas) Corp. v. FCC (“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

(continued….)

Federal Communications Commission FCC-CIRC2310-01

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. 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.

(Continued from previous page)

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.”).

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.”

China Telecom Americas Order on Revocation and Termination, 36 FCC Rcd at 16027, para. 93.

102

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

Telecom (Americas) Corp. v. FCC.

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-CIRC2310-01

weighing the costs and benefits, the Commission did not identify specific compliance costs, but rather

identified the costs in the form of forgone benefits.

507

While we do not dispute that some potential

benefits may result from paid prioritization arrangements, we tentatively conclude that the potential harms

to consumers and the open Internet outweigh any speculative benefits.

508

Do commenters agree? Why or

why not? What compliance costs might ISPs incur as a result of such a ban, including small providers?

The Commission also found in 2018 that paid prioritization could be a tool in helping to close the digital

divide by reducing BIAS subscription prices for consumers.

509

Do commenters agree with this

assessment? We tentatively conclude that the Commission’s 2018 finding that existing antitrust and

consumer protection laws, in conjunction with some form of a transparency rule, offer enough protection

against the potential harms caused by paid prioritization arrangements was erroneous. We seek comment

on this tentative conclusion.

161. As part of a rule prohibiting paid prioritization arrangements, we also propose to adopt a

rule concerning waiver of such a ban that establishes a balancing test. Under our waiver rules, the

Commission may waive any rule in whole or in part, “for good cause shown.”

510

A general waiver of the

Commission’s rules is only appropriate if special circumstances warrant a deviation from the general rule

and such a deviation will service the public interest.

511

In 2015, the Commission found that it was

appropriate to adopt specific rules concerning the factors that it will use to examine a waiver request of

the paid prioritization ban.

512

We tentatively conclude that it remains appropriate to accompany a rule

prohibiting paid prioritization arrangements with specific guidance on how the Commission would

evaluate subsequent waiver requests. We seek comment on this conclusion. Tracking the language of the

2015 Open Internet Order, we propose to adopt the following rule, and seek comment on this proposal:

The Commission may waive the ban on paid prioritization only if the petitioner

demonstrates that the practice would provide some significant public interest benefit and

would not harm the open nature of the Internet.

162. Following the framework the Commission established in 2015, we propose to require an

applicant seeking a waiver of our proposed rule to prohibit paid prioritization arrangements to make two

related showings. First, the applicant would need to demonstrate that the practice will have some

significant public interest benefit.

513

The applicant could make such a showing by providing evidence that

the practice furthers competition, innovation, consumer demand, or investment.

514

Second, the applicant

would need to demonstrate that the practice does not harm the nature of the open Internet.

515

This second

showing would include, but is not limited to, providing evidence that the practice: (i) does not materially

degrade or threaten to materially degrade the BIAS of the general public; (ii) does not hinder consumer

choice; (iii) does not impair competition, innovation, consumer demand, or investment; and (iv) does not

impede any forms of expression, types of service, or points of view.

516

We seek comment on the

continued relevance of these four examples. Should the Commission consider other factors when

507

Id. at 456-57, para. 253.

508

See 2015 Open Internet Order, 30 FCC Rcd at 5654-55, para. 126.

509

RIF Order, 33 FCC Rcd at 464, para. 260.

510

47 CFR § 1.3.

511

See WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969); Northeast Cellular Telephone Co. v. FCC, 897

F.2d 1164, 1166 (D.C. Cir. 1990).

512

2015 Open Internet Order, 30 FCC Rcd at 5658, para. 130.

513

Id. at 5658, para. 131.

514

Id.

515

Id.

516

Id.

Federal Communications Commission FCC-CIRC2310-01

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

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. 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?

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

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-CIRC2310-01

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?

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

“‘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

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

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”).

Federal Communications Commission FCC-CIRC2310-01

requirements adopted in the Broadband Label Order, the possible amendments raised in the Broadband

Label Further Notice,

549

and any modifications to the transparency rule that we might adopt here. For

example, to the extent that the content of the required disclosures under the two requirements diverge,

how can we avoid any undue duplication of effort in making each required disclosure, particularly for

small providers? Should the broadband label requirements and the transparency rule as it might be

modified here be legally distinct, or legally interrelated, requirements?

2. Content of Required Disclosures

171. We seek comment on what, if any, additional disclosures should be required under the

transparency rule. As a starting point, we believe that the disclosures required under the current

transparency rule are an appropriate baseline, and we propose to retain them in the transparency rule

going forward. We seek comment on this proposal. As the Commission recently explained when

adopting broadband label requirements, “the transparency rule seeks to enable a deeper dive into details

of broadband Internet service offerings, which could be relevant not only for consumers as a whole, but

also for consumers with particularized interests or needs, as well as a broader range of participants in the

Internet community—notably including the Commission itself.”

550

Are the current requirements of the

transparency rule sufficient to enable that deeper dive into details of broadband Internet service offerings?

172. We seek comment on whether enhancements to the content of disclosures required by the

transparency rule under the 2015 Open Internet Order should be incorporated in a revised transparency

rule here.

551

With respect to required disclosure of commercial terms, the 2015 Open Internet Order

provided additional specifications regarding ISPs’ disclosures about price and related terms and their

relationship with disclosures regarding privacy and redress options.

552

Regarding the disclosure of

performance characteristics, the 2015 Open Internet Order provided additional specifications regarding

the disclosure of network performance

553

and network practices.

554

The RIF Order eliminated those

enhancements under the theory that their burdens to ISPs exceeded their benefits.

555

The Broadband

Label Order, on the other hand, required ISPs to disclose in the broadband labels their typical upload and

download speeds and typical latency metrics associated with their broadband services, noting that speed

in particular “remains the network performance metric of greatest interest to the consumer.”

556

The

Commission similarly found that low delay or latency is important to any application involving users

interacting with each other, a device, or an application.

557

We seek comment on these assessments,

549

See generally Broadband Label Further Notice, FCC 22-86, paras. 131-53 (seeking comment on possible

additions or modifications to the broadband label rules).

550

Broadband Label Order, FCC 22-86, para. 107.

551

See, e.g., 2015 Open Internet Order, 30 FCC Rcd at 5672-77, paras. 162-70 (discussing enhancements to the

content of disclosures required by the transparency rule).

552

2015 Open Internet Order, 30 FCC Rcd at 5672-73, para. 164.

553

Id. at 5673-75, paras. 166-67.

554

Id. at 5676-77, para. 169.

555

RIF Order, 33 FCC Rcd at 437-38, para. 215.

556

Broadband Label Order, FCC 22-86, paras. 37-38 (citing the Eleventh MBA Report in which the Commission

stated that “[s]peed (both download and upload) performance continues to be one of the key metrics reported by the

MBA.” See Eleventh Measuring Broadband America, Fixed Broadband Report, Federal Communications

Commission, Office of Engineering and Technology at 8, 10 (Dec. 31, 2021)).

557

Broadband Label Order, FCC 22-86, para. 41. The Commission declined, however, to require providers to

include information on packet loss in the label, noting that packet loss is less important than upload and download

speeds and latency, and may actually lead to more confusion for most consumers. It also sought additional comment

in the Broadband Label Further Notice about whether there are other service characteristics, beyond speed and

latency, that ISPs should display on the label. See Broadband Label Order, FCC 22-86, para. 46.

Federal Communications Commission FCC-CIRC2310-01

including updated evidence regarding the relative costs and benefits of the transparency enhancements

based on experience following the RIF Order. To the extent that the transparency requirements were

intended to provide needed information not only to consumers but also edge providers, the broader

Internet community, and the Commission, how should that affect our assessment of the overall benefits of

the enhanced transparency requirements? Would the enhancements to the transparency rule adopted in

the 2015 Open Internet Order, or other modifications to the current transparency rule, assist the

Commission in monitoring and enforcing compliance with the conduct rules proposed here? Are there

any metrics that are particularly important to some subset of consumers that we should consider including

despite those metrics not being of significant value to the average consumer?

173. In addition, we seek comment on other considerations relevant to possible changes to the

content ISPs may be required to disclose under the transparency rule. For one, we seek comment on

whether a revised transparency rule should incorporate the Commission’s clarifications and guidance

regarding prior versions of the transparency rule. For example, a 2011 Public Notice (2011 Advisory

Guidance) provided “examples of approaches to disclosure that would satisfy the transparency rule,”

558

discussing point-of-sale disclosures, service descriptions, the extent of required disclosures, disclosures

for the benefit of edge providers, and disclosures regarding security measures.

559

A 2014 Public Notice

(2014 Advisory Guidance) summarized the applicability and requirements of the transparency rule and the

potential enforcement consequences if it were violated, and emphasized the importance of consistency

between ISPs’ disclosures under the transparency rule and their advertising claims or other public

statements.

560

And a 2016 Public Notice (2016 Advisory Guidance) provided guidance regarding

acceptable methodologies for disclosure of network performance information and point-of-sale

disclosures consistent with the 2015 Open Internet Order.

561

The RIF Order subsequently eliminated the

enhancements adopted in 2015, and the clarifications in the 2016 Advisory Guidance along with it.

562

The

RIF Order endorsed the clarifications in the 2011 Advisory Guidance,

563

but neither endorsed nor

disclaimed the clarifications in the 2014 Advisory Guidance. We seek comment on whether and to what

extent the Commission should reaffirm, reject, or elaborate on any of that prior guidance in connection

with any modification of the transparency rule here. Are there other areas where additional clarification

or guidance would be beneficial either under the existing transparency rule or a revised transparency rule?

174. We also seek comment on the availability of information that ISPs can or should use to

comply with the content of disclosures required under the current or modified transparency rule. For

example, the RIF Order allowed fixed ISPs participating “in the Measuring Broadband America (MBA)

program [to] disclose their results as a sufficient representation of the actual performance their customers

can expect to experience.”

564

Should we continue that approach here, or make use of the MBA program

558

FCC Enforcement Bureau and Office of General Counsel Issue Advisory Guidance for Compliance with Open

Internet Transparency Rule, Public Notice, 26 FCC Rcd 9411 (EB/OGC 2011) (2011 Advisory Guidance).

559

2011 Advisory Guidance, 26 FCC Rcd at 9413-18.

560

FCC Enforcement Advisory, Open Internet Transparency Rule: Broadband Providers Must Disclose Accurate

Information to Protect Consumers, Public Notice, 29 FCC Rcd 8606, 8606-8607 (EB 2014) (2014 Advisory

Guidance).

561

Guidance on Open Internet Transparency Requirements, Public Notice, 31 FCC Rcd 5330 (CTO/OGC/EB 2016)

(2016 Advisory Guidance).

562

See, e.g., RIF Order, 33 FCC Rcd at 442, para. 225.

563

See, e.g., id. at 440-41, 444-45, paras. 220 n.814, 222 n.818, 229-30.

564

RIF Order, 33 FCC Rcd at 441-42, para. 222 n.818. The Broadband Label Order similarly concluded that fixed

broadband service providers that choose to participate in the MBA program may disclose their results as a sufficient

representation of the actual performance their customers can expect to experience for the relevant speed tier. The

Commission also determined that providers that do not participate may use the methodology from the MBA

program to measure actual performance, or may disclose actual performance based on internal testing, consumer

(continued….)

Federal Communications Commission FCC-CIRC2310-01

in some other way? To what extent can or should we allow ISPs to use other specific information sources

or measurement approaches to provide transparency disclosures?

565

Should we clarify that certain sources

of information are permissible to rely on in making the required disclosures? Or should we go further in

particular cases and require the use of certain data sources for reasons of uniformity, reliability, or

otherwise? Should the Commission require ISPs to include additional information in transparency

disclosures regarding their measurement methodologies and practices?

175. Finally, we seek comment on any other considerations relevant to our evaluation of the

appropriate content of required disclosures under the transparency rule. Is there additional content that

we should require? For example, the 2015 Open Internet Order considered, but ultimately did not adopt,

additional disclosure requirements regarding “the source, location, timing, or duration of network

congestion,”

566

packet corruption and jitter,

567

and “disclosures that permit end users to identify

application-specific usage or to distinguish which user or device contributed to which part of the total data

usage.”

568

In light of subsequent experience, should we revisit the decisions not to require such

disclosures? Should the Commission consider requiring more detailed disclosures regarding the

requirements, restrictions, or standards for enforcement of data caps, and if so, how? We also seek

comment on whether different content disclosures should be required for mobile ISPs than for fixed ISPs.

3. Means of Disclosure

176. We seek comment on how best to ensure that the content of the required disclosures is

made available in a timely and effective manner without undue burdens on ISPs, both as a general matter

and in the specific respects discussed below. In the RIF Order, the Commission allowed providers to

make the required disclosures either “on a publicly available, easily accessible website,” or by

“transmit[ting] their disclosures to the Commission,” which would then make them “available on a

publicly available, easily accessible website.”

569

We seek comment on practical experiences with that

approach, and whether that approach should be retained in its current form, modified, or eliminated in

favor of disclosures required specifically on provider websites—as had been the case under prior versions

of the transparency rule. When the Commission recently adopted broadband label rules, it required ISPs

to display labels on their websites, as well as at other points of sale.

570

While it “aim[ed] to give providers

flexibility in how they display labels,” the Commission also sought “to ensure that the labels are

prominently displayed on any device on which the consumer accesses and views the labels, including

mobile devices”

571

and in a uniform format that will best assist consumers in comparing pricing, fees,

performance characteristics, and data allowances across different providers.

572

Are there lessons from the

Commission’s recent experience crafting broadband label requirements that should inform our approach

to the manner of making disclosures under the transparency rule?

(Continued from previous page)

speed test data, or other data regarding network performance, including reliable, relevant data from third-party

sources. Broadband Label Order, FCC 22-86, para. 39.

565

See Broadband Label Further Notice, FCC 22-86, para. 138 (seeking comment on whether there are more

appropriate ways to measure speed and latency other than “typical” for purposes of the label disclosure such as

average or peak speed and latency, and whether it is appropriate to require providers to add another speed metric to

the label in addition to typical speed).

566

2015 Open Internet Order, 30 FCC Rcd at 5675-76, para. 168.

567

Id.

568

Id. at 5677, para. 170.

569

RIF Order, 33 FCC Rcd at 444, para. 229.

570

Broadband Label Order, FCC 22-86, paras. 90-92.

571

Id. at para. 93.

572

Id. at para. 65.

Federal Communications Commission FCC-CIRC2310-01

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

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

(continued….)

Federal Communications Commission FCC-CIRC2310-01

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 Commisssion’s efforts to protect consumers’ privacy and data security and

relieve them from unlawful robocalls and robotexts. We seek comment on this view.

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

(Continued from previous page)

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-CIRC2310-01

102

affiliated entity. The Commission may waive the ban on paid prioritization only if the petitioner

demonstrates that the practice would provide some significant public interest benefit and would

not harm the open nature of the Internet.

(e) General conduct standard. Any person engaged in the provision of broadband Internet access

service, insofar as such person is so engaged, shall not unreasonably interfere with or

unreasonably disadvantage (1) end users’ ability to select, access, and use broadband Internet

access service or the lawful Internet content, applications, services, or devices of their choice, or

(2) edge providers’ ability to make lawful content, applications, services, or devices available to

end users. Reasonable network management shall not be considered a violation of this rule.

(f) Nothing in this part supersedes any obligation or authorization a provider of broadband Internet

access service may have to address the needs of emergency communications or law enforcement,

public safety, or national security authorities, consistent with or as permitted by applicable law, or

limits the provider’s ability to do so.

(g) Nothing in this part prohibits reasonable efforts by a provider of broadband Internet access

service to address copyright infringement or other unlawful activity.

PART 20 – COMMERCIAL MOBILE SERVICES

4. Revise section 20.3 to read as follows:

§ 20.3 Definitions.

* * * * *

Commercial mobile radio service. * * *

* * * * *

(b) The functional equivalent of such a mobile service described in paragraph (a) of this section, including

a mobile broadband Internet access service as defined in Section 8.2.

* * * * *

Public Switched Network. 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

uses the North American Numbering Plan, or public IP addresses, in connection with the provision of

switched services.

* * * * *

Federal Communications Commission FCC-CIRC2310-01

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.

162

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?

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

162

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-CIRC2310-01

television system or provider of telecommunications service.

163

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.

164

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.

165

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,

166

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.

167

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.

168

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.

169

Although section 332(e)(7) of the Act, and Commission interpretation thereof,

163

47 U.S.C. § 224(b).

164

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).

165

See RIF Remand Order, 35 FCC Rcd at 12370-71, paras. 71-72.

166

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.

167

RIF Order on Remand, 33 FCC Rcd at 12370-77, paras. 71-81.

168

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).

169

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-CIRC2310-01

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?

170

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.

171

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.

172

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.

173

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.

174

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)).

170

See 2018 Wireless Infrastructure Order, 33 FCC Rcd at 9093, para. 18 (quoting 47 U.S.C. § 337(c)(7)(B)(v)).

171

2018 Wireline Infrastructure Order, 33 FCC Rcd at 7806, para. 167; 2018 Wireless Infrastructure Order, 33

FCC Rcd at 9108, para. 36.

172

47 U.S.C. § 254(c)(1).

173

Mozilla, 940 F.3d at 68-70.

174

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) (USF/ICC Transformation Order).

Federal Communications Commission FCC-CIRC2310-01

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,

175

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.

176

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.

177

We 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.

178

In 2019, the Commission

175

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).

176

See 47 CFR §§ 54.413 and 54.414 (establishing Link Up support and the reimbursement process for Link Up).

177

See supra note 59.

178

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, 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-CIRC2310-01

121

Commission does not generally track subsequent business size unless, in the context of assignments or

transfers, unjust enrichment issues are implicated. Additionally, since the Commission does not collect

data on the number of employees for licensees providing these services, at this time we are not able to

estimate the number of licensees with active licenses that would qualify as small under the SBA’s small

business size standard.

49. 3650–3700 MHz band. Wireless broadband service licensing in the 3650-3700 MHz

band provides for nationwide, non-exclusive licensing of terrestrial operations, utilizing contention-based

technologies, in the 3650 MHz band (i.e., 3650–3700 MHz).

167

Licensees are permitted to provide

services on a non-common carrier and/or on a common carrier basis.

168

Wireless broadband services in

the 3650-3700 MHz band fall in the Wireless Telecommunications Carriers (except Satellite)

169

industry

with an SBA small business size standard that classifies a business as small if it has 1,500 or fewer

employees.

170

U.S. Census Bureau data for 2017 show that there were 2,893 firms that operated in this

industry for the entire year.

171

Of this number, 2,837 firms employed fewer than 250 employees.

172

Thus

under the SBA size standard, the Commission estimates that a majority of licensees in this industry can be

considered small.

50. The Commission has not developed a small business size standard applicable to

3650–3700 MHz band licensees. Based on the licenses that have been granted, however, we estimate that

the majority of licensees in this service are small Internet Access Service Providers (ISPs). As of

November 2021, Commission data shows that there were 902 active licenses in the 3650–3700 MHz

band.

173

However, since the Commission does not collect data on the number of employees for licensees

providing these services, at this time we are not able to estimate the number of licensees with active

licenses that would qualify as small under the SBA’s small business size standard.

51. Fixed Microwave Services. Fixed microwave services include common carrier,

174

private-operational fixed,

175

and broadcast auxiliary radio services.

176

They also include the Upper

167

See 47 CFR §§ 90.1305, 90.1307.

168

See id. § 90.1309.

169

See U.S. Census Bureau, 2017 NAICS Definition, “517312 Wireless Telecommunications Carriers (except

Satellite),” https://www.census.gov/naics/?input=517312&year=2017&details=517312.

170

See 13 CFR § 121.201, NAICS Code 517312 (as of 10/1/22, NAICS Code 517112).

171

See U.S. Census Bureau, 2017 Economic Census of the United States, Employment Size of Firms for the U.S.:

2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 517312,

https://data.census.gov/cedsci/table?y=2017&n=517312&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePrevie

w=false.

172

Id. The available U.S. Census Bureau data does not provide a more precise estimate of the number of firms that

meet the SBA size standard.

173

Based on a FCC Universal Licensing System search on November 19, 2021,

https://wireless2.fcc.gov/UlsApp/UlsSearch/searchAdvanced.jsp. Search parameters: Service Group = All, “Match

only the following radio service(s)”, Radio Service = NN; Authorization Type =All; Status = Active. We note that

the number of active licenses does not equate to the number of licensees. A licensee can have one or more licenses.

174

See 47 CFR Part 101, Subparts C and I.

175

See id. Subparts C and H.

176

Auxiliary Microwave Service is governed by Part 74 of Title 47 of the Commission’s Rules. See 47 CFR Part

74. Available to licensees of broadcast stations and to broadcast and cable network entities, broadcast auxiliary

microwave stations are used for relaying broadcast television signals from the studio to the transmitter, or between

two points such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which relay

signals from a remote location back to the studio.

Federal Communications Commission FCC-CIRC2310-01

127

Accordingly, the Commission estimates that the majority of cable system operators are small under this

size standard. We note however, that the Commission neither requests nor collects information on

whether cable system operators are affiliated with entities whose gross annual revenues exceed $250

million.

229

Therefore, we are unable at this time to estimate with greater precision the number of cable

system operators that would qualify as small cable operators under the definition in the Communications

Act.

7. Other Telecommunications

63. Electric Power Generators, Transmitters, and Distributors. The U.S. Census Bureau

defines the utilities sector industry as comprised of “establishments, primarily engaged in generating,

transmitting, and/or distributing electric power.

230

Establishments in this industry group may perform one

or more of the following activities: (1) operate generation facilities that produce electric energy; (2)

operate transmission systems that convey the electricity from the generation facility to the distribution

system; and (3) operate distribution systems that convey electric power received from the generation

facility or the transmission system to the final consumer.”

231

This industry group is categorized based on

fuel source and includes Hydroelectric Power Generation, Fossil Fuel Electric Power Generation, Nuclear

Electric Power Generation, Solar Electric Power Generation, Wind Electric Power Generation,

Geothermal Electric Power Generation, Biomass Electric Power Generation, Other Electric Power

Generation, Electric Bulk Power Transmission and Control and Electric Power Distribution.

232

64. The SBA has established a small business size standard for each of these groups based on

the number of employees which ranges from having fewer than 250 employees to having fewer than

1,000 employees.

233

U.S. Census Bureau data for 2017 indicate that for the Electric Power Generation,

Transmission and Distribution industry there were 1,693 firms that operated in this industry for the entire

year.

234

Of this number, 1,552 firms had less than 250 employees.

235

Based on this data and the

associated SBA size standards, the majority of firms in this industry can be considered small entities.

(Continued from previous page)

a public notice subsequent to the 2001 Subscriber Count PN, the Commission still relies on the subscriber count

threshold established by the 2001 Subscriber Count PN for purposes of this rule. See 47 CFR § 76.901(e)(1).

228

S&P Global Market Intelligence, S&P Capital IQ Pro, Top Cable MSOs 12/21Q (last visited May 26, 2022); S&P

Global Market Intelligence, Multichannel Video Subscriptions, Top 10 (April 2022).

229

The Commission does receive such information on a case-by-case basis if a cable operator appeals a local

franchise authority’s finding that the operator does not qualify as a small cable operator pursuant to § 76.901(e) of

the Commission’s rules. See 47 CFR § 76.910(b).

230

See U.S. Census Bureau, 2017 NAICS Definition, “Sector 22- Utilities, 2211 Electric Power Generation,

Transmission and Distribution,” https://www.census.gov/naics/?input=2211&year=2017&details=2211.

231

See id.

232

Id.

233

See 13 CFR § 121.201, NAICS Codes 221111, 221112, 221113, 221114, 221115, 221116, 221117, 221118,

221121, 221122.

234

See U.S. Census Bureau, 2017 Economic Census of the United States, Selected Sectors: Employment Size of

Firms for the U.S.: 2017, Table ID: EC1700SIZEEMPFIRM, NAICS Code 2211,

https://data.census.gov/cedsci/table?y=2017&n=2211&tid=ECNSIZE2017.EC1700SIZEEMPFIRM&hidePreview=f

alse.

235

Id. The available U.S. Census Bureau data does not provide a more precise estimate of the number of firms that

meet the SBA size standard.

Federal Communications Commission FCC-CIRC2310-01

128

D. Description of Projected Reporting, Recordkeeping, and Other Compliance

Requirements for Small Entities

65. As indicated above, the Notice proposes to return BIAS to its classification as a

telecommunications service under Title II of the Act, and further proposes to reclassify mobile BIAS as a

commercial mobile service. The Notice also proposes to reinstate straightforward, clear rules of the road

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 uniform, national regulatory approach toward BIAS.

Specifically, the Notice proposes to adopt rules to prohibit ISPs from blocking, throttling, or engaging in

paid or affiliated prioritization arrangements. The Notice also proposes 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, the Notice proposes to retain the current disclosures, and seeks comment on the

means of disclosure, the interplay between the transparency rule and the broadband label requirements,

and any additional enhancements or changes the Commission should consider.

E. Steps Taken to Minimize the Significant Economic Impact on Small Entities,

and Significant Alternatives Considered

66. The RFA requires an agency to describe any significant alternatives that it has considered

in reaching its proposed approach, which may include (among others) the following four alternatives:

(1) the establishment of differing compliance or reporting requirements or timetables that take into

account the resources available to small entities; (2) the clarification, consolidation, or simplification of

compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather

than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small

entities.

236

The Commission expects to consider all of these factors when we have received substantive

comment from the public and potentially affected entities.

67. The Commission also expects to consider the economic impact on small entities, as

identified in comments filed in response to the Notice and this IRFA, in reaching its final conclusions and

taking action in this proceeding. We seek comment here on the effect the various proposals described in

the Notice, and summarized above, will have on small entities, and on what effect alternative rules would

have on those entities. How can the Commission achieve its goal of safeguarding the open Internet while

also imposing minimal burdens on small entities? What specific steps could the Commission take in this

regard? As discussed in the Notice, the proposed approach would provide the basis for a uniform,

national regulatory approach rather than disparate requirements that vary state-by-state, which could help

streamline and minimize regulatory requirements for small entities. The Notice also proposes broad

forbearance from statutory requirements and Commission regulations for broadband Internet access

service providers, and we note that the proposed forbearance could substantially lessen the economic

impact of the proposed actions on small entities. The Notice specifically seeks comment on the impact of

reclassification on small businesses and entities, including small ISPs.

F. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules

68. None.

236

5 U.S.C. § 603(c).

Federal Communications Commission FCC-CIRC2310-01

57. 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. 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?

203

C. Scope of Reclassification

58. 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.

204

The Commission has chiefly retained this

definition since it first defined broadband Internet access service in the 2010 Open Internet Order.

205

seek comment on whether there is any reason to depart from this definition of broadband Internet access

service.

59. 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.”

206

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.

207

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.

208

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?

209

60. 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

platform, including but not limited to wire, terrestrial wireless (including fixed and mobile wireless

203

See NTIA, BroadbandUSA, Federal Funding, https://broadbandusa.ntia.doc.gov/resources/federal/federal-

funding (last visited Sept. 20, 2023).

204

47 CFR § 8.1(b); see also id. Part 8.

205

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 and Appx. A, Final Rules; RIF Order, 33 FCC Rcd at 318-20, paras. 21-25.

206

See 2015 Open Internet Order, 30 FCC Rcd at 5683-84, para. 189; RIF Order, 33 FCC Rcd at 318, para. 21,

n.58.

207

These programs statutorily support BIAS regardless of its classification status.

208

See 2015 Open Internet Order, 30 FCC Rcd at 5683-84, para. 189; RIF Order, 33 FCC Rcd at 318, para. 21,

n.58.

209

See Empowering Broadband Consumers Through Transparency, CG Docket No. 22-2, Order on

Reconsideration, FCC 23-68, at 6-8, paras. 24-26 and Appendix A (rel. Aug. 29, 2023) (Broadband Label

Reconsideration Order).

Federal Communications Commission FCC-CIRC2310-01

services using licensed or unlicensed spectrum), and satellite.

210

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.”

211

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.

212

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.

213

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.

214

We seek

comment on our proposals.

61. 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.

215

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.

216

Such proposed findings are consistent with the manner in which the

Commission has historically defined broadband Internet access service,

217

and we seek comment on any

changed circumstances that would justify a different outcome.

62. 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).

218

We seek comment on how we

should view these services for purposes of defining broadband Internet access service—are these types of

210

See 2015 Open Internet Order, 30 FCC Rcd at 5746-47, para. 337; RIF Order, 33 FCC Rcd at 319, para. 22.

211

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).

212

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).

213

RIF Order, 33 FCC Rcd at 319, para. 22; see also 2015 Open Internet Order, 30 FCC Rcd at 5746-47, para. 337.

214

2015 Open Internet Order, 30 FCC Rcd at 5746-47, para. 337; RIF Order, 33 FCC Rcd at 319, para. 22.

215

2015 Open Internet Order, 30 FCC Rcd at 5749, para. 340; RIF Order, 33 FCC Rcd at 320, para. 24.

216

2015 Open Internet Order, 30 FCC Rcd at 5749, para. 340; RIF Order, 33 FCC Rcd at 320, para. 25.

217

See 2015 Open Internet Order, 30 FCC Rcd at 5749, para. 340; RIF Order, 33 FCC Rcd at 320, para. 25.

218

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-CIRC2310-01

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?

63. 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.

219

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.

220

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?

64. 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.

221

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.”

222

We seek comment on our proposed approach.

65. 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.”

223

seek comment on this position. As the Commission explained in 2015, “[t]he representation to retail

customers that they will be able to reach ‘all or substantially all Internet endpoints’ necessarily includes

219

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.

220

2015 Open Internet Order, 30 FCC Rcd at 5697, para. 209.

221

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.

222

Id.

223

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-CIRC2310-01

the promise to make the interconnection arrangements necessary to allow that access”

224

and “the promise

to transmit traffic to and from those Internet end points back to the user.”

225

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,

226

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.’”

227

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?

66. 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

228

from the scope of

broadband Internet access service?

229

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

67. 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

authority to interpret and implement the Communications Act of 1934.

230

Both the 2015 Open Internet

224

See 2015 Open Internet Order, 30 FCC Rcd at 5610, 5693-94, paras. 28, 204.

225

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).

226

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”).

227

Verizon, 740 F.3d at 653.

228

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.

229

See 2015 Open Internet Order, 30 FCC Rcd at 5749, para. 340; RIF Order, 33 FCC Rcd at 320, paras. 24-25.

230

See, e.g., Nat’l Broad. Co. v. United States, 319 U.S. 190, 219 (1943) (“[i]n the context of the developing

problems to which it was directed, the Act gave the Commission . . . expansive powers”); United States v. Storer

(continued….)