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Proposed Rule2023-23630

Safeguarding and Securing the Open Internet

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Published

November 3, 2023

Issuing agencies

Federal Communications Commission

Abstract

In this document, the Federal Communications Commission's (Commission) adopted a Notice of Proposed Rulemaking (NPRM) that proposes to reestablish the Commission's authority over broadband internet access service by classifying it as a telecommunications service under Title II of the Communications Act. This NPRM 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 NPRM also proposes to reestablish conduct rules for internet service providers that would provide a national approach for safeguarding internet openness.

Full Text

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[Federal Register Volume 88, Number 212 (Friday, November 3, 2023)]
[Proposed Rules]
[Pages 76048-76096]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23630]

[[Page 76047]]

Vol. 88

Friday,

No. 212

November 3, 2023

Part V

Federal Communications Commission

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47 CFR Parts 8 and 20

Safeguarding and Securing the Open Internet; Proposed Rule

Federal Register / Vol. 88 , No. 212 / Friday, November 3, 2023 /
Proposed Rules

[[Page 76048]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 8 and 20

[WC Docket No. 23-320; FCC 23-83; FR ID 179272]

Safeguarding and Securing the Open Internet

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission's
(Commission) adopted a Notice of Proposed Rulemaking (NPRM) that
proposes to reestablish the Commission's authority over broadband
internet access service by classifying it as a telecommunications
service under Title II of the Communications Act. This NPRM 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 NPRM also proposes to reestablish conduct rules for
internet service providers that would provide a national approach for
safeguarding internet openness.

DATES: Comments are due on or before December 14, 2023, and reply
comments are due on or before January 17, 2024. Written comments on the
Paperwork Reduction Act proposed information collection requirements
must be submitted by the public and other interested parties on or
before January 2, 2024.

ADDRESSES: You may submit comments, identified by WC Docket No. 23-320
by any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing ECFS: <a href="https://www.fcc.gov/ecfs/">https://www.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, 35 FCC Rcd 2788 (2020). <a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#9bfdf8f8aeabafdbfdf8f8b5fcf4ed">[email&#160;protected]</a> or call the
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice).

FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau,
Competition Policy Division, <a href="/cdn-cgi/l/email-protection#226d52474c4b4c5647504c475610121011624441410c454d54">[email&#160;protected]</a>. For additional
information concerning the Paperwork Reduction Act information
collection requirements contained in this document, send an email to
<a href="/cdn-cgi/l/email-protection#12424053527471713c757d64">[email&#160;protected]</a> or contact Nicole Ongele, <a href="/cdn-cgi/l/email-protection#37795e54585b5219785950525b527751545419505841">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM) in WC Docket No. 23-320, FCC 23-83,
adopted on October 19, 2023 and released on October 20, 2023. The full
text of the document is available on the Commission's website at
<a href="https://docs.fcc.gov/public/attachments/FCC-23-83A1.pdf">https://docs.fcc.gov/public/attachments/FCC-23-83A1.pdf</a>. To request
materials in accessible formats for people with disabilities (e.g.,
braille, large print, electronic files, audio format, etc.), send an
email to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="34727777010400745257571a535b42">[email&#160;protected]</a> or call the Consumer & Governmental Affairs
Bureau at (202) 418-0530 (voice).

Initial Paperwork Reduction Act of 1995 Analysis

This document contains proposed information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public to comment on the
information collection requirements contained in this document, as
required by the Paperwork Reduction Act of 1995, Public Law 104-13.
Public and agency comments are due January 2, 2024.
Comments should address: (a) whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology; and (e)
way to further reduce the information collection burden on small
business concerns with fewer than 25 employees. In addition, pursuant
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might
further reduce the information collection burden for small business
concerns with fewer than 25 employees.

Providing Accountability Through Transparency Act

The Providing Accountability Through Transparency Act, Public Law
118-9, requires each agency, in providing notice of a rulemaking, to
post online a brief plain-language summary of the proposed rule. The
required summary of this Notice of Proposed Rulemaking/Further Notice
of Proposed Rulemaking is available at <a href="https://www.fcc.gov/proposed-rulemakings">https://www.fcc.gov/proposed-rulemakings</a>.

Synopsis

I. Proposed Classification of Broadband Internet Access Service

1. Today, we propose to return BIAS to its classification as a
telecommunications service under Title II of the Act. We further
propose to reclassify mobile BIAS as a commercial mobile service. In
the time since the RIF Order (83 FR 7852 (Feb. 22, 2018)), propelled by
the COVID-19 pandemic, BIAS has become even more essential to consumers
for work, health, education, community, and everyday life. In light of
this reality, we believe that looking anew at the classification of
BIAS is necessary and timely given the critical importance of ensuring
the Commission's authority to fulfill policy objectives and
responsibilities to protect this vital service. Notable among these is
enabling the Commission to safeguard the fair and open internet though
a national regulatory approach. The Commission also has an important
statutory mandate to protect ``life and property'' by supporting
national security and public safety. We anticipate that the proper
classification of BIAS as a telecommunications service will enhance the
Commission's ability to advance these and other important interests,
including protection of consumers' privacy and data security

[[Page 76049]]

interests and consumers' ability to access BIAS. Beyond these areas, we
believe that classification of BIAS as a telecommunications service
represents the best reading of the text of the Act in light of the
marketplace reality of how the service is offered and perceived today.
Below, we seek comment on our proposed classification framework, and
particularly seek comment on its benefits and burdens. Additionally, we
seek comment on the impact of reclassification on small businesses and
entities, including small ISPs.

A. Broadband Internet Access Service Is Essential

2. 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 Sec. 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-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 computer 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.
3. 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 (80 FR 19737 (April 13, 2015)), 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.
4. 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 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 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?
5. 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

[[Page 76050]]

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

6. 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
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.
7. 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.
1. Ensuring Internet Openness
8. In light of how essential BIAS connectivity is to consumers
following the COVID-19 pandemic, we believe that the open internet must
be protected to ensure consumers can use their BIAS connections in all
the lawful ways they see fit. We tentatively conclude that
reclassification of BIAS as a telecommunications service will allow the
Commission to safeguard the open internet and seek comment on this
tentative conclusion. As an initial manner, following Title II
classification, the Commission could rely on its authority in sections
201 and 202 of the Act to address practices that are unjust,
unreasonable, or unreasonably discriminatory. Below, we also propose to
reinstate rules that prohibit ISPs from blocking or throttling the
information transmitted over their networks or engaging in paid or
affiliated prioritization arrangements. Additionally, we propose to
reinstate a general conduct standard that would prohibit practices that
cause unreasonable interference or unreasonable disadvantage to
consumers or edge providers. Our proposal would leave the existing
transparency requirements undisturbed. 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 consumers from fully accessing all
of the critical services available through the internet. We seek
comment on this analysis. In particular, how would these rules ensure
that consumers can continue to use their internet connections for
healthcare, education, work, commerce, and civic engagement? What would
be the potential impact on these uses if the open internet is not
secured?
9. We further believe reclassification would enable the Commission
to establish a nationwide framework of open internet rules for ISPs. In
both the 2015 Open Internet Order and the RIF Order, the Commission
expressed concern that potentially inconsistent state laws could
increase burdens for ISPs and hinder the broadband market. With the
goal of avoiding this, the Commission, in each instance, attempted to
establish a framework that would preempt any inconsistent state laws.
However, by reclassifying broadband as a Title I service and
eliminating the conduct rules established in the 2015 Open Internet
Order, the RIF Order failed to achieve this goal, because the Mozilla
court vacated the RIF Order's blanket preemption of inconsistent state
laws, concluding that the Commission ``fail[ed] to ground its sweeping
Preemption Directive . . . in a lawful source of statutory authority.''
Thus, instead of creating ``a uniform set of federal regulations,'' the
RIF Order's hands-off approach to BIAS has led to the existence of
state-by-state open internet requirements it sought to avoid. We remain
concerned that differing 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 set of open internet
standards that will apply nationwide. We seek comment on this analysis.
2. Safeguarding National Security and Preserving Public Safety
10. 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 (86 FR 994 (Jan. 7, 2021)), 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.
11. National Security and Law Enforcement. We tentatively conclude
that authority under applicable Title II provisions, reinforced by the
Commission's existing authority, would

[[Page 76051]]

enhance the Commission's efforts to protect the national defense. The
Commission's attention to national security is a responsibility that
underlies its other statutory obligations, as evidenced by Congress's
statement in the Communications Act that among the reasons it created
the Commission was ``for the purpose of the national defense.'' This
responsibility was affirmed by Presidential Policy Directive 21, which
described how the FCC could, to the extent permitted by law, exercise
its authority and expertise to identify and address vulnerabilities in
the communications sector. We seek comment generally on how
reclassification would advance the Commission's fulfillment of its
national security responsibilities and how it specifically would affect
the Commission's efforts, in coordination with other agencies, and with
ISPs themselves, to protect the nation's communications networks from
entities and equipment and services that pose threats to national
security and law enforcement.
12. 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) and other harms in
relation to the services provided by those entities pursuant to section
214 authorization. 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,'' and it reached similar conclusions in the
other proceedings. 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 and other threats to our
communications networks. We seek comment on this analysis.
13. 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? 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.
14. 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, 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;
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; created and maintained a list of communications equipment and
services that pose an unacceptable risk to the national security
(``covered equipment and services''); 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; and prohibited the authorization of equipment that poses a

[[Page 76052]]

threat and the marketing and importation of such equipment in the
United States. We seek comment on how reclassification may allow the
Commission to further these efforts. For instance, would
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? 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?
15. 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. . . .'' 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. While the Commission will
continue to work closely with ISPs to secure their networks,
reclassification of BIAS as telecommunications service would provide
the Commission with the authority to act in the absence of voluntary
action by ISPs or in cases of emergency or significant risk. 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.
16. 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.'' 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.'' Would reclassification provide the
Commission with additional authority to address BGP vulnerabilities,
including, for example, by requiring providers to deploy solutions to
address BGP vulnerabilities in the absence of voluntary action?
17. In what other ways could reclassification bolster the
Commission's authority to address 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?
For example, could the Commission determine that only broadband
services that meet certain cybersecurity standards constitute
``advanced telecommunications capability''? 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? 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, the Office of National Cyber Director, and
other government agencies or intergovernmental agencies, such as the
Federal Acquisition Security Council (FASC)? 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? 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?
18. 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.'' Indeed, the Commission is ``required to consider public
safety by . . . its enabling act.'' 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 `must take into account its duty to protect the public.' ''
We believe that the Commission's responsibility to address public
safety is becoming increasingly important as the severity and frequency
of natural

[[Page 76053]]

disasters are on the rise. We tentatively conclude that
reclassification would enhance the Commission's jurisdiction over ISPs,
which it could use in combination with other statutory authority to
ensure BIAS meets the needs of public safety entities and individuals
when they use those services for public safety purposes. We seek
comment on this tentative conclusion and analysis below. We note that
the RIF Order concluded that Title I classification advances, and does
not harm, public safety, primarily based on its overarching policy
rationales for reversing Title II classification. We seek comment on
the RIF Order's policy rationales and framework for protecting against
harms elsewhere in this Notice, and we invite commenters to address
whether those rationales sufficiently advance public safety. In
particular, we invite comment on whether the Commission's ability to
adopt ex ante regulations would provide better public safety
protections than an ex post enforcement framework.
19. We seek comment on how our proposed reclassification would
enable the Commission to support public safety officials' use of BIAS
for public safety purposes. As a general matter, broadband services
play an important role in how public safety officials communicate with
each other and how they deliver and receive information from the
public. Although much of the communications between public safety
entities and first responders take advantage of enterprise-level
dedicated public safety broadband services, they often rely on
commercial broadband services to communicate during emergency
situations. Increasingly, public safety entities rely on retail BIAS to
access various databases, share data with emergency responders, and
stream video into 911 and emergency operations centers. We also are
aware that public safety officials often use services accessible over-
the-top (OTT) of broadband connections, such as social media, to
communicate important and timely information to the public and to gain
valuable information from the public and build on-the-ground
situational awareness. We seek comment on the extent to which public
safety officials rely on BIAS for public safety purposes and on our
tentative conclusion that reclassification would give us additional
jurisdiction to advance the existing uses of BIAS by these officials.
20. We also seek comment on how reclassification could further
other public safety initiatives. For instance, while the Commission has
taken important steps to improve the effectiveness of Wireless
Emergency Alerts (WEAs), would classification of BIAS as a
telecommunications service enable the Commission to make the nation's
alert and warning capabilities more effective and resilient by, for
instance, requiring ISPs to transmit emergency alerts to their
subscribers? More recently, the Commission modernized its priority
services rules to authorize service providers to offer, on a voluntary
basis, priority treatment of data, video, and IP-based voice services
for public safety personnel and first responders, including by removing
outdated requirements that may impede the use of IP-based technologies.
Would reclassification allow the Commission to go a step further by
requiring service providers to offer prioritized routing for all IP-
based services and prioritized restoration for all network
infrastructure? Could the Commission require ISPs to participate in
Telecommunications Service Priority (TSP), Government Emergency
Telecommunications Service (GETS), and Wireless Priority Service (WPS)?
How, if at all, would reclassification allow the Commission to expand
the applicability, and therefore the public safety benefits, of the
Communications Assistance for Law Enforcement Act (CALEA) requirements?
21. We tentatively conclude that BIAS also plays an increasingly
important role in allowing the public to communicate with first
responders during emergency situations and seek comment on this
tentative conclusion. In the RIF Remand Order, the Commission noted
that retail broadband services are used to translate communications
with 911 callers and patients in the field and to deliver critical
information about 911 callers that is not delivered through the
traditional 911 network. Are there other ways in which BIAS can or does
supplement traditional 911 communications? The Commission has
undertaken various efforts in recent years to improve how the public
reaches and shares information with emergency service providers. What
effect, if any, would Title II classification of BIAS have on these and
future efforts? Would reclassification enhance the Commission's
jurisdiction to improve the flow of voice communications, photos,
videos, text messages, real-time text (RTT), or any other type of
communication from the public to emergency service providers through
Next Generation 911 or over the use of Wi-Fi calling to reach emergency
service providers? If so, how? We also believe BIAS is critical when
used by individuals with disabilities to communicate with public safety
services, and the Commission has taken several steps to improve access
to IP-enabled 911 communications for people with disabilities. How will
reclassification fortify our existing jurisdiction to ensure these
communications are not interrupted or degraded? To what extent does or
will BIAS support alternatives to 911 communications, and will
reclassification help to ensure that BIAS-based emergency
communications meet certain reliability and security standards? Would
reclassification of BIAS enhance the access to, availability of, and
service quality for IP-based communication services used by people with
disabilities in emergencies, including the IP-based forms of
telecommunications relay services (TRS)?
22. BIAS is also critical for allowing the public to easily and
efficiently access public safety resources and information. In
particular, members of the public often rely on BIAS during emergencies
to enable them to find and receive potentially life-saving information.
As the Commission stated in the RIF Remand Order, ``consumers regularly
use their mobile devices and broadband connections `to access broadly
available information regarding threatening weather, shelter-in-place
mandates, ongoing active-shooter scenarios, and other matters essential
to public safety.' '' The COVID-19 pandemic, severe natural disasters,
and other incidents have demonstrated the importance of the public
being able to access public safety information using their BIAS
connections. We seek comment on how reclassification would allow the
Commission to ensure that the public can access life-saving public
safety resources and information using BIAS.
23. Furthermore, BIAS is important for public safety communications
that occur outside of emergencies. The Commission observed in the RIF
Remand Order that the COVID-19 pandemic demonstrated that many
Americans rely on telemedicine over mass-market broadband services for
routine health care, triage, and basic health advice, and that the
ability of 5G networks to transmit massive amounts of data in real time
will also help enable new applications for advanced communications
between the public and health care officials, such as through the use
of wireless sensors to for remote patient monitoring and data
transmission so doctors can identify problems before they become
emergencies, and through the

[[Page 76054]]

development of connected ambulance services for faster patient
transport. 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
and BIAS connections are increasingly important for in-home monitoring
of individuals who are elderly or disabled. We seek comment on the
impact that reclassification may have on these and other public safety
applications that rely on BIAS.
24. 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, 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, 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 or
misconfigurations? Under rules implemented 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.
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? How, if at all, would reclassification allow us to
further our goal to improve the reliability of wireless networks? Would
broadband reclassification give the Commission additional authority to
facilitate the use of Wi-Fi calling during emergencies or network
outages, 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
25. 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 Commission's efforts to
protect consumers' privacy and data security and relieve them from
unlawful robocalls and robotexts. We seek comment on this view.
26. 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 privacy infringements and data breaches
by communications providers. The Commission's efforts will rely on,
among other things, its authority under section 222 of the Act. That
provision governs telecommunications carriers' protection and use of
information obtained from their customers or other carriers, and
calibrates the protection of such information based on its sensitivity.
Congress imposed a duty on every telecommunications carrier to protect
the confidentiality of its customers' proprietary information,
according the category of customer proprietary network information
(CPNI) the greatest level of protection.
27. When the Commission classified BIAS as a telecommunications
service in the 2015 Open Internet Order, it declined to forbear from
applying section 222 of the Act, citing the need to protect consumers'
privacy regardless of whether they communicate via broadband or
telephone services. The RIF Order eliminated these statutory
protections for broadband customers and surrendered the Commission's
authority over ISPs' privacy and data protection practices. We believe
that ISPs are situated to collect vast swaths of information about
their customers, including personal information, financial information,
and information regarding subscriber online activity. We further
believe that consumers currently may not fully comprehend--and
therefore may not be able to meaningfully consent to--ISPs' collection,
processing, and disclosure of customer information, including
potentially through the use of artificial intelligence models. We are
also concerned that, absent statutory and regulatory requirements to do
so, ISPs may not adopt adequate administrative, technical, physical,
and procedural safeguards to protect their customers' data. Indeed,
ISPs appear to continue to be attractive targets to hackers and other
bad actors, putting BIAS customer data at significant risk of
compromise. We seek comment on these views.
28. Based on the foregoing, we once again propose herein not to
forbear from section 222. Returning BIAS to its telecommunications
service classification would bring ISPs back under the section 222
privacy and data security framework, and therefore restore those
protections for consumers. Additionally, classifying BIAS as a
telecommunications service could support a consistent privacy and data
security framework for voice and data services, which we believe
consumers often subscribe to from one provider in a bundle and perceive
to be part of the same service, particularly for mobile services. We
seek comment on this proposed analysis.
29. We further believe that, in addition to protecting consumers,
reclassifying BIAS as a telecommunications service and declining to
forbear from section 222 would protect information concerning entities
that interact with ISPs. Section

[[Page 76055]]

222 places an obligation on telecommunications carriers to protect the
confidentiality of the proprietary information of and relating to other
telecommunication carriers (including resellers), equipment
manufacturers, and business customers. 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?
30. 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. 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? How would this affect ISPs, especially small ISPs?
4. Supporting Access to Broadband Internet Access Service
31. 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.
32. 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 television system or provider
of telecommunications service. 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. 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. 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, 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. 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. 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.
33. 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. Although section 332(e)(7) of the Act, and Commission
interpretation thereof, 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? 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.
34. Universal Service. We tentatively conclude that classifying
BIAS as a telecommunications service will strengthen our policy
initiatives to

[[Page 76056]]

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. 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. 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.
35. 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 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, 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.
We seek comment on these views, including how this may impact ISPs,
especially smaller ISPs and ISPs serving rural areas.
36. 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. 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.
37. 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. In 2019, the
Commission released a Notice of Proposed Rulemaking that sought comment
about these practices and others that could have the effect of
dampening competition or deployment, and on the Commission's authority
to target different kinds of entities, including telecommunications
providers, MVPDs, and broadband-only providers. In 2022, relying on
sections 201 and 628 of the Act, the Commission adopted rules to
prohibit telecommunications carriers and MVPDs from entering into
exclusive and graduated revenue sharing agreements, and to require that
telecommunications carriers and MVPDs include disclaimers on marketing
materials distributed to MTE tenants that inform tenants of the
existence of an exclusive marketing arrangement, among other things.
The Commission determined that it was appropriate to ``proceed
incrementally,'' but cautioned that it would ``continue to monitor
competition in MTEs to determine whether we should alter the scope of
our rules to cover other providers,'' including broadband-only
providers. We seek comment whether reclassification of BIAS would
provide additional authority for the Commission to further promote
competition and consumer choice in communications services in MTEs.
38. Free Expression. We believe BIAS connections promote diversity
of viewpoints by allowing traditionally disadvantaged communities to
express themselves outside of traditional media. Social media websites
and other platforms particularly have become important platforms for
free expression, political engagement, and social activism. Indeed,
Congress has recognized that ``the internet offer[s] a forum for a true
diversity of political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual activity.''
Accordingly, we invite comment on any free expression-related
considerations associated with classifying BIAS as a telecommunications
service and any benefits or drawbacks of such classification for
relevant communications.
39. Digital Equity. The Commission, as part of its continuing
effort to advance digital equity for all, including people of color,
persons with disabilities, persons who live in rural or Tribal areas,
and others who have been historically underserved, marginalized, and
adversely affected by persistent poverty and inequality, invites
comments on any equity-related considerations and benefits (if any)
that may be associated with the proposals and issues discussed herein.
Specifically, we seek comment on how our proposals may promote or
inhibit advances in diversity, equity, inclusion, and accessibility, as
well as the scope of the Commission's relevant legal authority.
5. Access for Persons With Disabilities
40. We seek comment on how reclassification may impact the
Commission's authority to ensure that individuals with disabilities can
communicate using BIAS. People with disabilities ``increasingly rely
upon internet-based video communications, both to communicate directly
(point-to-point) with other persons who are deaf or hard of hearing who
use sign language, and through video relay service.'' Section 716 of
the Act requires that interoperable video conferencing services be
accessible, regardless of how those services are transmitted--by
broadband or otherwise--and also requires that text messaging, email,

[[Page 76057]]

other electronic messaging services, and interconnected and non-
interconnected VoIP services, be accessible. In addition, section 718
of the Act requires that internet browsers installed on mobile phones
must be accessible to people who are blind or visually impaired to
ensure the accessibility of mobile broadband. How would
reclassification affect the Commission's ability to implement and
enforce these provisions? We seek comment on the impact, if any, that
reclassification may have on the Commission's goals to ensure that BIAS
remains accessible to individuals with disabilities. For instance, if
the Commission declines to forbear from section 255 of the Act, as we
propose below, would that provide additional authority for the
Commission to require that ISPs' telecommunications services and
equipment be accessible to and usable by people with disabilities?
6. The RIF Order's Policy Rationales Did Not Justify Reversing the
Classification of Broadband Service
41. In the RIF Order, the Commission's primary policy
justifications for reclassifying BIAS as a Title I service were its
conclusions regarding the alleged harm to investment by Title II
classification and the benefits to investment by Title I
classification. However, the RIF Order gave little weight to the 2015
Open Internet Order's showing that investment continued for broadband
services that were regulated as Title II common carrier services,
including digital subscriber line (DSL), which was regulated as such
until 2005.
42. We tentatively conclude that the Commission's conclusions in
the RIF Order that ISP investment is closely tied to the classification
of BIAS were unsubstantiated. Instead, we agree with the RIF Order's
statement that ``owners of network infrastructure make long-term,
irreversible investments,'' which we believe makes it unlikely that
changes in investment shortly following the adoption of each Order were
actually related to the effects of each Order. We seek comment on this
belief. We note that the Commission received conflicting viewpoints
regarding the actual effect of Title II classification on investment.
Instead of concluding, as the 2015 Open Internet Order did, that
conflicting viewpoints concerning the effect of classification on
investment prevented the Commission from being certain which viewpoint
was more accurate, the Commission chose to rely on certain studies
purporting to show that Title II classification in the 2015 Open
Internet Order hurt investment to reach its conclusion about the effect
of Title II classification on investment, even as the Commission seemed
to recognize the weaknesses of those studies. Additionally, similar to
the 2015 Open Internet Order record, the RIF Order's record showed
opposing views on the likely long-term effects of the Commission's
regulatory decisions on investment. We believe, as the Commission did
in 2015, that ``no party [could] quantify with any reasonable degree of
accuracy how either a Title I or a Title II approach may affect future
investment.'' As such, we tentatively conclude that changes in ISP
investment following the adoption of each Order were more likely the
result of other factors unrelated to the classification of BIAS, such
as broader economic conditions at the time, technology changes such as
the transition from 3G to 4G LTE networks, and ISPs' general business
development decisions. We seek comment on this tentative conclusion. Is
there any evidence that ISP investment is closely tied to the
regulatory classification of BIAS? Can any declines or increases in
investment following adoption of either the 2015 Open Internet Order or
the RIF Order be directly attributed to the classification of BIAS in
those Orders? What other factors besides the regulatory classification
of broadband impact investment decisions? We invite parties to comment
on the strength of any evidence submitted on these issues.
43. 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. How will it affect small ISPs? 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?

C. Scope of Reclassification

44. 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. The Commission has
chiefly retained this definition since it first defined broadband
internet access service in the 2010 Open Internet Order (76 FR 60754
(Sept. 30, 2011)). We seek comment on whether there is any reason to
depart from this definition of broadband internet access service.
45. 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.'' In 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. 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. 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?
46. 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 services using licensed or unlicensed
spectrum), and satellite. 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.'' As in prior
orders, we propose that ``fixed''

[[Page 76058]]

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. 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. 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. We seek
comment on our proposals.
47. 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. 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. Such proposed findings are consistent with the manner in
which the Commission has historically defined broadband internet access
service, and we seek comment on any changed circumstances that would
justify a different outcome.
48. 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). We seek comment on how we should view these services for
purposes of defining broadband internet access service--are these types
of 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?
49. 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. 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. We 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?
50. 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. 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.
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.'' We seek comment on our proposed approach.
51. 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.'' We 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 the promise
to make the interconnection arrangements necessary to allow that
access'' and ``the promise to transmit traffic to and from those
internet end points back to the user.'' 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, 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.' '' We seek
comment on the Verizon court's characterization of broadband internet
access service in

[[Page 76059]]

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?
52. 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 from the scope of broadband internet access service? 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. 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

53. 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. Both the 2015
Open Internet Order and the RIF Order recognized this authority. 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. 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.'' 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.
54. 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.'' 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.'' 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.'' When Congress enacted the
definitions of ``telecommunications service'' and ``information
service'' in the 1996 Act, it substantially incorporated the ``basic''
and ``enhanced'' service classifications from the Computer Inquiries
line of decisions. Under the Computer Inquiries, facilities-based
telephone companies were obligated to offer the transmission component
of their enhanced service offerings--including broadband internet
access service offered via DSL--to unaffiliated enhanced service
providers on nondiscriminatory terms and conditions pursuant to tariffs
or contracts governed by Title II. Thus, there is no disputing that
until 2005, Title II applied to the transmission component of DSL
service. Further, because the statutory definitions substantially
incorporated the Commission's terminology under the Computer Inquiries,
Commission decisions regarding the distinction between basic and
enhanced services--in particular, decisions regarding features that are
``adjunct to basic'' services--are relevant to our analysis, as
discussed further below, because the Commission's definition of
``adjunct to basic'' services has been instrumental in determining
which functions fall within the ``telecommunications systems
management'' exception to the ``information service'' definition.
55. We tentatively conclude that both a reasonable and the best
reading of these definitional provisions supports classifying BIAS as a
telecommunications service. As explained in the 2015 Open Internet
Order, ``the critical distinction between a telecommunications and an
information service turns on what the provider is `offering.' '' If the
provider is offering ``telecommunications'' to the public for a fee,
then the service is necessarily a telecommunications service. Thus, in
2015, the Commission interpreted these terms to classify BIAS as a
telecommunications service, finding that BIAS, as then offered, is
sufficiently independent from the information services that ISPs may
also offer. Consistent 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--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.
56. 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.'' As discussed above,
we believe that users rely on BIAS to transmit ``information of the
user's choosing,'' ``between or among points specified by the user.''
We further believe, as the Commission has previously found, that the
term ``points

[[Page 76060]]

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.' '' 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 <a href="http://www.example.com">www.example.com</a>. 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.'' 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. 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.'' 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. We seek comment on the analysis that BIAS provides
``telecommunications,'' including whether there is any reason to depart
from it.
57. We further tentatively conclude that there is no change or
modification to the form or content of information during transmission,
and seek comment on this analysis. In 2015, the Commission explained
that ``the packet payload (i.e., the content requested or sent by the
user) is not altered by the variety of headers that a provider may use
to route a given packet'' and therefore, the ``form and content of the
information'' is the same when an IP packet is sent by the sender as
when the same packet is received by the recipient. We seek comment on
whether this analysis of packet transmission remains accurate and
relevant today. Have there been any developments or changes in how BIAS
is provisioned that would cause us to reconsider this analysis? How do
ISPs transmit data information from one point on the network to
another? How does it differ from how PSTN calls are transmitted today?
58. Broadband Internet Access Service is a Telecommunications
Service. Here, we propose to build off our tentative conclusion that
BIAS provides telecommunications and our belief that current factual
circumstances show that consumers perceive BIAS as a standalone
offering used to access third-party services and, as such, ISPs
routinely market BIAS widely to the general public. Viewed together,
ISPs would necessarily offer BIAS ``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,'' and therefore we
tentatively conclude that BIAS is a telecommunications service as
defined in the Act. We seek comment on our tentative conclusion and
assessment. We further propose to find that the implied promise to make
arrangements for exchange of internet traffic as part of the BIAS
offering does not constitute a private carriage arrangement, and that
the rationale adopted in the 2015 Open Internet Order remains
persuasive. We seek comment on this approach. How do internet traffic
arrangements with negotiated terms differ from mass-market services
offered to the public? Have there been any significant developments in
the internet traffic exchange market since 2015 that would cause us to
reconsider these proposals? We observe that in 2015, the Commission
concluded that ``some individualization in pricing or terms is not a
barrier to finding that a service is a telecommunications service,''
and the RIF Order does not appear to disturb this finding. We seek
comment on this analysis.
59. Broadband Internet Access Service Is Not Best Classified an
Information Service. We tentatively conclude that, as offered today,
BIAS is not an information service under the best reading of the Act.
The Act defines an information service as the offering ``of a
capability for generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available information via
telecommunications.'' We believe that the Commission's reasoning in the
RIF Order--that because BIAS has the ``capability'' to be used to
engage in the activities within the information service definition, it
is best interpreted as an information service--is flawed. Concluding
that BIAS ``is an information service irrespective of whether it
provides the entirety of any end user functionality or whether it
provides end user functionality in tandem with edge providers,'' as the
Commission did in the RIF Order, fails to recognize the relationship of
BIAS transmission services to other functions, which may be offered by
either the ISP or a third party of the end user's choice. Logically,
under the framework set out in the RIF Order, even traditional switched
telephone service would be classified as an information service, as it
provides customers with the ability to make information available to
others (e.g., public service announcements), retrieve information from
others, and process and utilize stored information from others (e.g.,
by interacting with a call menu). We tentatively conclude that the best
and more reasonable interpretation of the statutory language is that
BIAS is a telecommunications service, while the applications that run
over BIAS either constitute distinct information services or fall
within the exception to the information service definition for
capabilities used ``for the management, control, or operation of a
telecommunications system or the management of a telecommunications
service.'' We seek comment on this proposed analysis.
60. We tentatively conclude that companion services, such as DNS
and caching, when provided with BIAS, fit within the telecommunications
systems management exception to the definition of ``information
service,'' and therefore when these services are provided with BIAS,
they do not convert BIAS into an information service. We seek comment
on this tentative conclusion. The Act's telecommunications systems
management exception excludes from the definition of ``information
service'' ``any use of any such capability for the management, control,
or operation of a telecommunications system or the management of a
telecommunications service.'' In the 2015 Open Internet Order, the
Commission concluded that when DNS and caching are offered with BIAS,
they ``either fall within the telecommunications systems management
exception or are separate offerings that are not inextricably
integrated with broadband internet

[[Page 76061]]

access service, or both.'' In the RIF Order, the Commission took a
contrary view, concluding that ``DNS and caching functionalities . . .
offered by ISPs[ ] are integrated information processing capabilities
offered as part of broadband internet access service to consumers
today.'' On review of the RIF Order, Judge Millet explained in her
concurrence that ``the question is whether the combination of
transmission with DNS and caching alone can justify the information
service classification. If we were writing on a clean slate, that
question would seem to have only one answer given the current state of
technology: No.'' She added that ``new factual developments call[ed]
for serious technological reconsideration and engagement through expert
judgment. Instead, the Commission's exclusive reliance on DNS and
caching blinkered itself off from modern broadband reality, and
untethered the service `offer[ed]' from both the real-world marketplace
and the most ordinary of linguistic conventions.'' We intend to guide
our decisionmaking about the role of DNS and caching based on today's
broadband reality, and we seek information on the present
circumstances.
61. We tentatively conclude that the Commission's 2015 analysis
provides the more reasonable application of the relevant statutory
terms and Commission precedent to DNS functionality with respect to
BIAS, and we seek comment on this tentative conclusion. In the 2015
Open Internet Order, the Commission analogized DNS to adjunct-to-basic
services, such as speed dialing, call forwarding, and computer-provided
directory assistance, and concluded that because it is effectively
equivalent to routing information and does not alter the fundamental
character of the telecommunications service, it falls within the
telecommunications systems management exception to the definition of
``information service.'' ``Adjunct-to-basic'' functions were those
features and services that met the literal definition of ``enhanced
service'' but did not alter the fundamental character of the associated
basic transmission service and thus were treated as basic (i.e.,
telecommunications) services even though they went beyond mere
transmission. The Commission has held that such functions: (1) must be
``incidental'' to an underlying telecommunications service--i.e., ``
`basic' in purpose and use'' in the sense that they facilitate use of
the network; and (2) must ``not alter the fundamental character of [the
telecommunications service].'' The RIF Order rejected the adjunct-to-
basic comparison largely based on its contention that adjunct-to-basic
services and the telecommunications systems management exception must
be viewed narrowly, effectively to only include functions that solely
facilitate transmission. Because it concluded that DNS, as then used,
is a core function of BIAS that provides more than a functionally
integrated address-translation capability, it determined that DNS did
not fall within the exception. We tentatively disagree with the RIF
Order's narrow characterization of adjunct-to-basic services and the
telecommunications systems management exception as not mandated by the
statutory language; however, even under that unnecessarily narrow
characterization, we believe DNS would fall under the
telecommunications management exception, as its fundamental purpose is
to route information--i.e., to facilitate transmission.
62. We further believe that even if DNS did not fall within the
telecommunications systems management exception to the Act's definition
of ``information services,'' it is not so inextricably intertwined so
as to convert the entire BIAS offering into an information service,
consistent with the Commission's finding in 2015. In support of the
2015 Open Internet Order's conclusion, the Commission explained that IP
packet transfer can work without DNS and that DNS lookup is available
through third parties. In the RIF Order, the Commission argued that
even though DNS can also be provided by third parties, the focus should
remain on the capabilities that ISPs offer, which it concluded is a
single, inextricably intertwined information service. However, in her
Mozilla concurrence, Judge Millet noted that ``DNS, much like email, is
now free and widely available to consumers in the internet
marketplace.'' We tentatively conclude that the 2015 Open Internet
Order's showing that DNS is not a necessary component of BIAS, which
the RIF Order did not dispute, provides the better rationale for
evaluating whether DNS transforms the entire BIAS offering into an
information service, and tentatively conclude that it does not. We seek
comment on this tentative conclusion. Does the Commission's 2015
analysis of DNS as it relates to BIAS remain relevant, accurate, and
persuasive? Why or why not? Are there any technical or commercial
developments that should cause us to reconsider this analysis?
63. For the same reasons the Commission found in 2015, we believe
that caching, when provided in connection with BIAS, is ``used to
facilitate the transmission of information so that users can access
other services, in this case by enabling the user to obtain `more rapid
retrieval of information' through the network,'' and thus falls within
the telecommunications systems management exception. We seek comment on
this analysis. The Commission concluded otherwise in the RIF Order,
finding that ``ISP-provided caching does not merely `manage' an ISP's
broadband internet access service and underlying network, it enables
and enhances consumers' access to and use of information online'' and
that because it is ``useful to the consumer,'' caching does not fall
within the telecommunications systems management exception. However, we
do not believe consumers consider caching capabilities when purchasing
BIAS. We seek comment regarding the technical and commercial aspects of
caching, how caching functionality is both provisioned by ISPs and
offered to customers, as well as the relevance (if any) of Commission
precedent as applied to caching today.
64. In particular, given that web pages today change constantly and
are often customized on a per-user basis, we question whether ISPs
cache popular content requested by multiple users to supply the same
web page when requested later, rather than fetching the page anew.
Further, as Judge Millett observed in Mozilla, caching ``does not work
when users employ encryption,'' which as of 2017 constituted a majority
of internet traffic, which suggests ``that caching no longer enjoys the
pride of place ascribed to it'' by the RIF Order. We seek comment on
whether ISPs use this practice and, to the extent that commenters
contend they do, why (given the ever-changing nature and high
customization of contemporary web pages). In addition, should the
Commission distinguish between caching by ISPs and the kind of caching
that third-party content providers use to keep copies of content (such
as videos and images, but possibly also web pages) closer to users? We
preliminarily conclude that caching of this kind is not provided by
ISPs and thus is not a part of BIAS, and as such does not transform
BIAS into an information service.
65. We also seek comment on whether there are other functionalities
provided or offered with BIAS, besides DNS and caching, that might fall
into the telecommunications systems management exception, as well as on

[[Page 76062]]

other add-on information services offered in conjunction with BIAS and
how they might affect our analysis with respect to the classification
of BIAS. The 2015 Open Internet Order identified examples of
processing-related capabilities that fall within the telecommunications
systems management functions, such as security virus protection and
blocking denial of service attacks, as well as add-on information
services such as cloud-based storage services, email, and spam
protection that were often offered in conjunction with BIAS but were
not inextricably intertwined with it. Consistent with the Commission's
finding in 2015, we propose that ``such services are not inextricably
intertwined with [BIAS], but rather are a product of the provider's
marketing decision not to offer the two separately,'' and seek comment
on this proposal. We believe that, to the extent BIAS is offered along
with other capabilities that would otherwise fall into the
``information service'' definition, such an offering does not turn BIAS
into a functionally integrated information service. Are there examples
of other information services or capabilities that are often offered by
ISPs in conjunction with BIAS? How do consumers view and use these
products in relation to their BIAS subscription? How has the market for
third-party information services offered in tandem with BIAS developed
since the RIF Order was adopted? We also seek comment on any devices or
applications, such as Wi-Fi hotspots, wearables, appliances, and other
IoT devices that an ISP may include with its BIAS offering and how they
may function both in conjunction with and apart from the underlying
BIAS. How does a secondary market for such devices and applications
impact our interpretation that they are separable information services?
66. Major Questions Doctrine Applicability. We seek comment on
whether, and if so how, the major questions doctrine--the notion that
Congress is expected to speak clearly when delegating authority in
certain extraordinary cases--should inform the conclusions we reach
based on the text and structure of the Act. In the USTA decision, the
D.C. Circuit reasoned that Brand X conclusively held that the
Commission has the authority to determine the proper statutory
classification of BIAS and that its determinations are entitled to
deference, and so there is no need to consult the major questions
doctrine here. In opinions respecting the denial of rehearing en banc,
several judges debated how (if at all) the major questions doctrine
would otherwise apply to the issue. The RIF Order did not directly
dispute this conclusion, but stated that the doctrine supported its
decision to classify BIAS as an information service in order to steer
clear of any major questions doctrine issues.
67. What factors are relevant to the Commission's consideration of
whether the major questions doctrine applies to the classification of
BIAS, taking account of evolving Supreme Court precedent? Among other
factors, we ask that commenters consider the extent to which this
matter falls within the Commission's recognized expertise and authority
as the federal regulator responsible for ``regulating interstate and
foreign commerce in communications by wire and radio so as to make
available, so far as possible, . . . wire and radio communications
service with adequate communications facilities at reasonable
charges.'' In light of relevant Commission precedent, both before and
shortly after Congress adopted the 1996 Act, classifying analogous
transmission services--including the transmission component of
broadband internet access service offered via digital subscriber line
(DSL)--as common carrier services, what basis is there, if any, for
concluding that the Commission's proposed classification action here is
an exercise of ``newfound power'' not previously recognized? Has
Congress acted or failed to act on proposals to clarify the proper
classification of broadband in subsequent years, and to what extent
does such action or inaction inform the Commission's exercise of its
claimed classification authority or the application of the major
questions doctrine?
68. We also seek comment on how and to what extent each relevant
factor should affect the Commission's analysis of whether the
classification of BIAS implicates the major questions doctrine.
Commenters should consider how the relevant factors apply to the
specific proposals here. For example, should the Commission evaluate
the applicability of the major questions doctrine for BIAS as a whole,
or should it distinguish between or among particular categories of BIAS
offerings? How would the major questions doctrine apply in the case of
particular rules we might adopt if we determine BIAS meets a given
statutory classification?
69. Separately, even assuming arguendo that the major questions
doctrine were applied to our classification of BIAS, we seek comment on
whether Congress has spoken sufficiently clearly in the Act--in
definitional provisions or more generally--to satisfy that standard.

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

70. In addition to our proposed return to the 2015 Open Internet
Order's classification of BIAS as a telecommunications service, we
propose to return to that Order's classification of mobile BIAS as a
commercial mobile service. In the alternative, even if mobile BIAS does
not meet the definition of ``commercial mobile service,'' we propose to
find that it is the functional equivalent of a commercial mobile
service and, therefore, not private mobile service.
71. Section 332(d)(1) of the Act defines ``commercial mobile
service'' as ``any mobile service . . . that is provided for profit and
makes interconnected service available (A) to the public or (B) to such
classes of eligible users as to be effectively available to a
substantial portion of the public, as specified by regulation by the
Commission.'' As an initial matter, we tentatively conclude that mobile
BIAS is a ``mobile service'' because subscribers access the service
through their mobile devices. Next, we tentatively conclude that mobile
BIAS is provided ``for profit'' because ISPs offer it to subscribers
with the intent of receiving compensation. We also tentatively conclude
that mobile BIAS is widely available to the public, without restriction
on who may receive it.
72. We also propose to return to the 2015 Open Internet Order's
determination that mobile BIAS is an interconnected service. Section
332(d)(2) states that the term ``interconnected service'' means
``service that is interconnected with the public switched network (as
such terms are defined by regulation by the Commission). . . .'' In the
2015 Open Internet Order, the Commission reached the conclusion that
mobile BIAS was an interconnected service through the application of an
updated definition of ``public switched network'' that included
networks that use public IP addresses. In doing so, the Commission
highlighted the Commission's longstanding determination from the Second
CMRS Report and Order (59 FR 18493 (Apr. 19, 1994)) that the term
``public switched network'' ``should not be defined in a static way''
as ``the network is continuously growing and changing because of new
technology and increasing demand.'' The Commission reversed course in
the RIF Order, reinstating the prior definition of

[[Page 76063]]

``public switched network.'' We believe the Commission's decision in
the RIF Order fails to align with the technological reality and
widespread use of mobile BIAS. The ubiquity of mobile BIAS that the
Commission recognized in 2015 is even more pronounced today, as mobile
broadband networks have continued to develop and grow in the
intervening years, with more users and increased mobile data traffic.
In 2022, there was more than 73 trillion megabytes of mobile data
traffic exchanged in the United States, representing a 38 percent
increase from the previous year. Continued growth of mobile BIAS is
expected, with one forecast predicting that there will be 410 million
5G mobile subscriptions in North America by 2028. In light of these
factors, we propose to return to the 2015 Open Internet Order's
modernized definition of ``public switched network'' in Sec. 20.3 of
the Commission's rules, specifically defining the term to mean ``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 use[s] the North American
Numbering Plan, or public IP addresses, in connection with the
provision of switched services.'' We believe this definition, which
includes IP addresses, embodies the current technological landscape and
the widespread use of mobile broadband networks, and is therefore more
consistent with the Commission's recognition that the public switched
network will grow and change over time. We seek comment on this
analysis and our proposed approach.
73. We further propose to reach the same conclusion the Commission
did in the 2015 Open Internet Order that mobile BIAS is interconnected
with the ``public switched network,'' as we propose to define it today.
The 2015 Open Internet Order found that mobile BIAS should be
considered interconnected because it was a broadly available mobile
service that provided users with the ability to send and receive
communications to all other users of the internet. Given the
``universal access'' and expected future growth of mobile BIAS, the
2015 Open Internet Order determined that finding mobile BIAS to be
interconnected and a commercial mobile service was consistent with
Congress' objective in section 332 of the Act in creating a symmetrical
regulatory framework among similar mobile services that were available
to the public. Mobile BIAS remains a broadly available mobile service
that provides its users with the ability to send and receive
communications and is an essential component of today's technology
landscape. As discussed above, there has been a marked increase in the
amount of mobile data traffic in recent years, and continued growth is
predicted. Given the continued widespread use and availability of
mobile BIAS, we propose to find that mobile BIAS is an interconnected
service, and propose to support this finding by applying the
Commission's analysis from the 2015 Open Internet Order to today's
marketplace. We seek comment on our proposed approach.
74. We also propose to rely on the Commission's analysis from the
2015 Open Internet Order that mobile BIAS is an interconnected service
for the additional reason that it provides users with the capability to
communicate with other users of the internet and with people using
telephone numbers through VoIP applications. The 2015 Open Internet
Order found that ``users on mobile networks can communicate with users
on traditional copper based networks and IP based networks, making more
and more networks using different technologies interconnected.'' It
further identified mobile VoIP, as well as over-the-top mobile
messaging, as ``among the increasing number of ways in which users
communicate indiscriminately between [North American Numbering Plan
(NANP)] and IP endpoints on the public switched network.'' Since 2015,
mobile BIAS users continue to communicate using these tools, with 85
percent of Americans owning a smartphone that offers access to VoIP and
over-the-top communications apps. We seek comment on whether there have
been any material changes in technology, the marketplace, or other
facts that would warrant refinement or revision of the analysis
regarding the interconnected nature of mobile BIAS from the 2015 Open
Internet Order.
75. In connection with this approach, we seek comment on whether we
should readopt the 2015 Open Internet Order's revised definition of
``interconnected service'' in Sec. 20.3 of the Commission's rules.
That Order defined ``interconnected service'' to mean a service that
gives subscribers the ability to ``communicate to or receive
communications from other users of the public switched network,''
removing the requirement that such service provide the ability to
communicate with all other users of the public switched network. It did
so to ensure that services that provide the capability to access all
other users, including through the use of OTT services, but limit that
access in certain limited ways, are not excluded from the definition of
``interconnected service.'' The RIF Order reverted to the prior
definition, concluding that ``the best reading of `interconnected
service' is one that enables communication between its users and all
other users of the public switched network'' and that the service
``must itself provide interconnection to the public switched network
using the NANP.'' We seek comment on whether it is necessary to return
to the definition of ``interconnected service'' in the 2015 Open
Internet Order to ensure that all appropriate services are covered by
the definition.
76. Because we also propose to reclassify mobile BIAS as a
telecommunications service, we believe that classifying it as a
commercial mobile service would avoid the inconsistency that would
result if the service were both a telecommunications service and a
private service. The Commission explained this reasoning in the 2015
Open Internet Order, and we propose to adopt a consistent rationale
here. The Commission stated that, because it determined mobile BIAS to
be a telecommunications service, ``designating it also as commercial
mobile service subject to Title II is most consistent with
Congressional intent to apply common carrier treatment to
telecommunications services.'' The Commission found that classifying
mobile BIAS as a commercial mobile service was necessary ``to avoid a
statutory contradiction that would result if the Commission were to
conclude both that mobile broadband internet access was a
telecommunications service and also that it was not a commercial mobile
service. A statutory contradiction would result from such a finding
because, while the Act requires that providers of telecommunications
services be treated as common carriers, it prohibits common carrier
treatment of mobile services that do not meet the definition of
commercial mobile service. Finding mobile broadband internet access
service to be commercial mobile service avoids this statutory
contradiction and is most consistent with the Act's intent to apply
common carrier treatment to providers of telecommunication services.''
We seek comment on this proposal.
77. In the alternative, to the extent that mobile BIAS falls
outside the definition of ``commercial mobile service,'' we propose to
find that it is the functional equivalent of a commercial mobile
service and, thus, not private mobile service. The Commission found
that mobile BIAS service was functionally equivalent to

[[Page 76064]]

commercial mobile service because, ``like commercial mobile service, it
is a widely available, for profit mobile service that offers mobile
subscribers the capability to send and receive communications on their
mobile device to and from the public. Although the services use
different addressing identifiers, from an end user's perspective, both
are commercial services that allow users to communicate with the vast
majority of the public.'' The RIF Order found that the 2015 Open
Internet Order's focus on the public's ``ubiquitous access'' to mobile
BIAS alone was ``insufficient'' to establish functional equivalency and
that the test established in the Second CMRS Report and Order provided
a more thorough consideration of factors of whether a service is
closely substitutable for a commercial mobile service. We seek comment
on both of these analyses. As the RIF Order acknowledged, however, the
Commission has discretion to determine whether services are
functionally equivalent. Congress expressly delegated authority to the
Commission to determine whether a particular mobile service may be the
functional equivalent of a commercial mobile service, defining
``private mobile service'' as ``any mobile service . . . that is not a
commercial mobile service or the functional equivalent of a commercial
mobile service, as specified by regulation by the Commission.'' For the
reasons outlined in the 2015 Open Internet Order and in light of the
continued increased use and distribution of mobile broadband services
and devices, we propose to find that mobile BIAS is the functional
equivalent of commercial mobile service. We seek comment on this
proposal and on any other or different definition of ``functional
equivalent'' that the Commission should adopt.
78. We anticipate that returning mobile BIAS to its classification
as a commercial mobile service and reinstating openness requirements on
a larger set of mobile ISPs will allow mobile providers that would
become subject to such rules to continue to be able to compete
successfully in the marketplace and continue to have incentives to
develop new products and services. For example, the Commission has
applied open access rules to upper 700 MHz C Block licensees, including
Verizon Wireless, for more than a decade, and the mobile operators
subject to these requirements have continued to compete successfully in
the marketplace. We seek comment on this view and on any policy
consequences that commenters believe may result from the proposed
reclassification of mobile BIAS.

F. Preemption of State and Local Regulation of Broadband Service

79. We seek comment on how best to exercise our preemption
authority to ensure that BIAS is governed primarily by a national
framework, including a uniform floor of ISP conduct rules. The RIF
Order adopted an expansive preemption decision, but the D.C. Circuit in
Mozilla concluded that the RIF Order ``fail[ed] to ground its sweeping
Preemption Directive . . . in a lawful source of statutory authority,''
and vacated that preemption action. The D.C. Circuit concluded that
``in any area where the Commission lacks the authority to regulate, it
equally lacks the power to preempt state law.'' A number of states
quickly stepped in to fill that void, adopting their own unique
regulatory approaches for BIAS, including their own versions of open
internet requirements, and even measures like regulation of retail
rates that the 2015 Open Internet Order found unnecessary. We
anticipate that our proposed regulatory approach to BIAS will remedy
the infirmities the D.C. Circuit identified in the RIF Order's
approach, and we seek comment on the best way to use our preemption
authority.
80. We seek comment on the best sources of preemption authority for
us, if needed. For one, we anticipate that the regulatory approach
proposed here would give us authority to oversee BIAS under Title II
with forbearance, under Title III in the case of mobile ISPs, as well
as under section 706 of the 1996 Act. These sources of authority could
enable us to adopt regulations that preempt contrary state
requirements. We also expect that our proposed regulatory approach
could make it more straightforward to rely on various express
preemption provisions in the Act, such as the preemption that
accompanies forbearance under section 10(e), the preemption that arises
when state requirements hinder provision of services covered under
sections 253 or 332(c)(7) of the Act, the preemption of state
requirements contrary to federal universal service policies under
section 254(f), and other possible preemption provisions. We expect
that Commission decisions finding BIAS to be interstate for regulatory
purposes largely resolve possible arguments premised on the limitation
on FCC authority over state communications services under section 2(b)
of the Act that otherwise could arise here. We seek comment on these
views and on any additional sources of statutory authority for
preemption, if needed.
81. We seek comment on how far to go in this proceeding in
exercising our preemption authority to ensure that BIAS principally is
governed by a federal framework. Should we adopt a broad preemption
decision like the Commission attempted to do in the RIF Order? Or
should the Commission proceed more incrementally, such as by only
addressing in this proceeding those state or local legal requirements
squarely raised in the record, and otherwise deferring to future case-
by-case adjudications of preemption? Under an incremental approach,
should we identify in this proceeding issues where the Commission will
decline to preempt state requirements and thereby share regulatory
responsibility with the states, such as state privacy and consumer
protection laws? For what issues, if any, is the Commission required to
share regulatory responsibility with the states? What are the benefits
and drawbacks of permitting state regulation in specific issue areas?
What issues may benefit most from shared regulatory responsibility with
states?
82. We also seek comment on how best to define the scope of
preemption to ensure that BIAS is principally governed by a federal
framework. For example, should open internet conduct rules of the sort
proposed below be seen not only as an appropriate nationwide floor
providing those protections to everyone, but also as an appropriate
ceiling to reflect the balancing of relevant policy considerations? The
2015 Open Internet Order stated that ``should a state elect to restrict
entry into the broadband market through certification requirements or
regulate the rates of BIAS through tariffs or otherwise, we expect that
we would preempt such state regulations as in conflict with our
regulations.'' Should the Commission affirmatively preempt in those
scenarios here rather than leaving those scenarios for future case-by-
case evaluation as it did in 2015? In addition, how should the
Commission define what state or local actions are within the scope of
any affirmative preemption it might adopt here? To what extent should
these decisions be informed by traditional preemption frameworks, such
as express preemption, field preemption, or conflict preemption?

II. Proposed Forbearance

83. We propose to forbear from applying some Title II provisions to
BIAS in the event that we reclassify the service, and we seek comment
on what

[[Page 76065]]

the parameters of such forbearance should be, taking into account as a
primary matter that we believe we must enable the Commission to fulfill
its responsibility under the Act to protect national security and
public safety when executing its other statutory obligations. In the
2015 Open Internet Order, the Commission accompanied Title II
classification with ``substantial'' forbearance for BIAS in a way that
was designed to ``strike the right balance at this time of minimizing
the burdens on ISPs while still adequately protecting the public,
particularly given the objectives of section 706 of the 1996 Act.'' We
propose to return to largely the same forbearance that was adopted in
the 2015 Open Internet Order, tailored as appropriate in light of any
updated conclusions the Commission reaches in this proceeding regarding
the need for particular rules, requirements, or sources of authority
covering BIAS. Notably, we propose to forbear from Title II provisions
insofar as they would support the adoption of ex ante rate regulations
for broadband internet access service.
84. However, subsequent developments have highlighted the
importance of retaining statutory authority to enable the Commission to
address national security and public safety concerns that could arise
with respect to BIAS. Those considerations provide a leading basis for
revisiting the statutory classification of BIAS, and therefore we
propose to depart from the forbearance approach reflected in the 2015
Open Internet Order by declining to forbear from applying section 214
of the Act, and expressly clarifying that our proposed forbearance
would not encompass Title III licensing and authorization authorities,
given that those statutory provisions could provide important
additional tools to advance the Act's national security and public
safety objectives. We seek comment on that proposal and on any issues
related to forbearance with respect to BIAS if classified as a Title II
service, including the best understanding of the current status of the
forbearance granted in the 2015 Open Internet Order, the appropriate
analytical approach to evaluating forbearance, and the substantive
scope of forbearance that should be granted. We also seek comment on
the impact of our proposed forbearance approach on ISPs, particularly
small ISPs.

A. Forbearance Framework

85. As a threshold matter, we seek comment on the best way to
interpret the effect of the RIF Order on the forbearance previously
granted in the 2015 Open Internet Order. The RIF Order stated that, due
to the reclassification decision there, ``the forbearance granted in
the [2015 Open Internet Order] is now moot,'' and that ``carriers are
no longer permitted to use the [2015 Open Internet Order] forbearance
framework (i.e., no carrier will be permitted to maintain, or newly
elect, the [2015 Open Internet Order] forbearance framework).'' We seek
comment on how to interpret those statements in the RIF Order.
86. Next, we seek comment on the appropriate analytical approach to
use when evaluating the statutory forbearance criteria. In the 2015
Open Internet Order, the Commission stated that ``[b]ecause the
Commission is not responding to a petition under section 10(c), we
conduct our forbearance analysis under the general reasoned decision
making requirements of the Administrative Procedure Act [(APA)],
without the burden of proof requirements that section 10(c) petitioners
face.'' The Commission explained how its approach to forbearance in the
2015 Open Internet Order satisfied the statutory forbearance criteria,
other relevant statutory objectives such as section 706 of the 1996
Act, and applicable procedural requirements under the Act and the APA,
and the D.C. Circuit rejected challenges to that forbearance approach
in its USTA decision. We propose to follow the same analytical approach
here and seek comment on that proposal. We also seek comment on
alternative analytical approaches or other ways to effectuate the
forbearance analysis.
87. We seek comment on the interplay between our approach to
forbearance and the argument in the RIF Order that the scope of
forbearance granted in the 2015 Open Internet Order suggests that
classification of BIAS as a Title II service is contrary to the
statutory scheme. In particular, does such an argument fail to account
for important aspects of the approach to forbearance in the 2015 Open
Internet Order? For example, we note that in many cases the 2015 Open
Internet Order evaluated forbearance assuming arguendo that particular
provisions of the Act or Commission rules apply to BIAS, rather than
``first exhaustively determining provision-by-provision and regulation-
by-regulation whether and how particular provisions and rules apply to
this service.'' Do objections to Title II classification premised on
the scope of forbearance adequately account for that fact, or do they
draw unduly broad conclusions based on simple counts of rules or
statutory provisions subject to the forbearance decision?
88. Separately, we propose to leave ISPs' broadband transmission
services--as distinguished from BIAS that relies on that transmission
as an input--subject by default to the framework of the Wireline
Broadband Classification Order (70 FR 60222 (Oct. 17, 2005)) as the
Commission has done previously. The RIF Order observed that such
services ``have never been subject to the [2015 Open Internet Order]
forbearance framework,'' and stated that ``carriers that choose to
offer transmission service on a common carriage basis are, as under the
Wireline Broadband Classification Order, subject to the full set of
Title II obligations, to the extent they applied before the'' 2015 Open
Internet Order. The 2015 Open Internet Order did, however, allow a
provider previously offering broadband transmission on a common carrier
basis ``to change to offer internet access services pursuant to the
construct adopted in'' that Order subject to filing with and review by
the Wireline Competition Bureau of the provider's proposal for the
steps it would take to convert to such an approach. We propose to
follow the same approach here, and seek comment on that proposal.

B. Proposed Forbearance

89. We seek comment on the particular statutory provisions and
rules that should or should not be subject to forbearance. In this
regard, we propose to use the forbearance granted in the 2015 Open
Internet Order as the starting point for our consideration of the
appropriate scope of forbearance. There, although the Commission
granted broad forbearance, the Commission did not forbear from a number
of specific protections or authorities:
<bullet> The open internet rules and section 706 of the 1996 Act;
<bullet> ``[S]ections 201, 202, and 208, along with key enforcement
authority under the Act, both as a basis of authority for adopting open
internet rules as well as for the additional protections those
provisions directly provide'';
<bullet> Section 222 of the Act, ``which establishes core customer
privacy protections'';
<bullet> Section 224 of the Act and the Commission's implementing
rules, ``which grant certain benefits that will foster network
deployment by providing telecommunications carriers with regulated
access to poles, ducts, conduits, and rights-of-way'';
<bullet> Sections 225, 255, and 251(a)(2) of the Act and the
Commission's implementing rules, ``which collectively

[[Page 76066]]

advance access for persons with disabilities; except that the
Commission forbears from the requirement that providers of broadband
internet access service contribute to the Telecommunications Relay
Service (TRS) Fund at this time'';
<bullet> Section 254 of the Act and ``the interrelated requirements
of section 214(e), and the Commission's implementing regulations to
strengthen the Commission's ability to support broadband, supporting
the Commission's ongoing efforts to support broadband deployment and
adoption''; and
<bullet> Requirements governing the wireless licensing process in
section 309(b) and (d)(1) of the Act and Sec. Sec. 1.931, 1.933,
1.939, 22.1110, and 27.10 of the Commission's rules.
90. We propose to forbear from all provisions of Title II that
would permit Commission regulation of BIAS rates. We believe that
Commission rate regulation is unnecessary because the tailored approach
we adopt here will enable the Commission to promote broadband
deployment and competition, and because we will be able to rely on
sections 201 and 202 to address non-rate related issues. Therefore,
while we do not propose to forbear from sections 201 and 202 of the Act
as a general matter, we ``do not and cannot envision adopting new ex
ante rate regulation'' or ex post rate regulation of BIAS, and we
therefore propose to forbear from applying sections 201 and 202 to BIAS
insofar as they would support adoption of rate regulations for BIAS. We
seek comment on this proposal. With respect to section 254, we propose
to forbear in part from the first sentence in section 254(d) and our
associated rules ``insofar as they would immediately require new
universal service contributions associated with'' BIAS, as the
Commission did in 2015, and seek comment on this proposal.
91. In addition to declining to forbear from applying those
specifically enumerated provisions of the Act and Commission rules, the
Commission also more generally limited its forbearance to the scope of
its section 10 forbearance authority, and thus did not forbear from
applying statutory provisions or rules that ``are not applied to
telecommunications carriers or telecommunications services.'' The
Commission also did not forbear from applying provisions of the Act or
Commission rules that already applied to BIAS irrespective of the Title
II classification of that service. The Commission cited illustrative
examples falling within one or both of those categories, including
provisions imposing obligations on the Commission, like section 257 of
the Act, provisions that simply reserve state authority, and the CALEA
requirements in section 229. In addition, the Commission did not
forbear from provisions that would benefit ISPs. This would include,
for example, preemption provisions such as those in sections 253 and
332(c) of the Act, as well as liability limitation provisions in
sections 223, 230, and 231 of the Act. To the extent that forbearance
was considered and rejected in the 2015 Open Internet Order for
particular statutory provisions, we propose to once again decline to
grant forbearance here, and we seek comment on that proposal. As part
of that analysis, we seek updated information and analyses regarding
the application of the statutory forbearance criteria regarding these
provisions and rules that were not subject to forbearance in the 2015
Open Internet Order. We also seek comment on any relevant analyses or
conclusions in the RIF Order.
92. Other than in the specific areas described above, the 2015 Open
Internet Order broadly granted forbearance from applying provisions of
the Act and Commission rules that newly applied by virtue of the Title
II classification of BIAS. We generally propose to again adopt broad
forbearance consistent with that outcome, with the exception of
statutory authorities that could enable the Commission to advance the
Act's goals of national security and public safety. For example,
section 1 of the Act makes clear that the Commission was established,
among other reasons, ``for the purpose of the national defense, [and]
for the purpose of promoting safety of life and property through the
use of wire and radio communications.'' Section 4(n) of the Act directs
the Commission to takes steps to promote the ``maximum effectiveness
from the use of radio and wire communications in connection with safety
of life and property.'' In addition, the D.C. Circuit in Mozilla
emphasized the need to consider the potential benefits of Title II
classification of BIAS for the Commission's authority to protect public
safety. Although public safety considerations were an important element
of the Commission's overall decision in the 2015 Open Internet Order,
preserving the Commission's public safety authority above and beyond
that granted in sections 201 and 202 of the Act was not as explicit a
focus in much of the Commission's tailoring of forbearance there. We
thus seek comment on what specific provisions should be excluded from
the scope of forbearance here in light of those national security and
public safety interests, as discussed in greater detail above.
93. Given the role section 214 of the Act has played in the
Commission's efforts to address national security and law enforcement
concerns related to U.S. telecommunications networks, we tentatively
conclude that we should exclude that provision from any forbearance
granted here. How should the Commission apply its existing procedures
for international section 214 authorizations, which include
coordination of applications that have reportable foreign ownership
with the relevant Executive Branch agencies, to BIAS providers? We seek
comment on any implementation issues arising from our tentative
conclusion and how we could best address them. For example, would
implementation challenges arise if the Commission immediately applied
to BIAS providers its existing procedures for international section 214
authorizations, which include coordination of applications that have
reportable foreign ownership with the relevant Executive Branch
agencies? We note that the 2015 Open Internet Order recognized that
certain implementation issues could arise from the application of
section 222 and the Commission's implementing rules to BIAS, and sought
to mitigate those effects pending a rulemaking specifically focused on
implementing section 222 for BIAS. Should we proceed in a similar
manner with respect to some or all aspects of international section 214
authorizations, whether by adopting temporary forbearance, temporary
grants of blanket international section 214 authority, or in some other
manner? We also seek comment on any implementation issues concerning
our domestic section 214 requirements.
94. We also make clear that our proposed forbearance would not
encompass Title III licensing authorities, including sections 301-303,
307-309, 312, and 316 of the Act, which we believe likewise grant us
important authority that can be used to advance national security and
public safety with respect to the services and equipment subject to
licensing. We also seek comment on whether we should exclude from the
scope of our forbearance provisions sections 218 and 220 of the Act,
which authorize the Commission to obtain information from common
carriers, which could provide important tools to investigate public
safety and security-related issues that arise. We seek comment on those
proposals and on any other provisions of the Act or Commission rules
that

[[Page 76067]]

likewise should be expressly excluded from the scope of forbearance
based on national security and/or public safety considerations,
including, for example, sections 305, 310, and 332 of the Act.
95. The D.C. Circuit's Mozilla decision also highlighted the
potential benefits of Title II classification of BIAS for the
Commission's authority to encourage deployment through regulation of
pole attachments and to provide universal service support for low
income households. In consideration of those interests, the Commission
previously excluded sections 224 and 254 of the Act from the scope of
its forbearance in the 2015 Open Internet Order. We seek comment on
whether there are additional or different ways those interests should
be reflected in the tailoring of forbearance here.
96. We believe that the RIF Remand Order was too quick to dismiss
concerns regarding public safety, pole attachments, and low income
universal service support as speculative or unproven, and we seek
comment on that view. Do commenters agree that the RIF Remand Order
gave insufficient weight to the potential additional benefits that
could be achieved through additional authority retained by virtue of
Title II classification of BIAS?
97. We also seek comment on any additional or different ways that
forbearance could be tailored here. For example, the 2015 Open Internet
Order adopted conditional forbearance from common carrier roaming
regulations, subject to mobile ISPs complying with the data roaming
requirements. Conditioned in that manner, the Commission was able to
find the statutory forbearance criteria satisfied. We propose to follow
the same approach with respect to our roaming rules here, and also seek
comment on whether there are other provisions of the Act or Commission
rules where conditional forbearance would satisfy the statutory
forbearance criteria, even if unconditional forbearance would not. More
generally, we also seek comment on alternative frameworks we might draw
upon in deciding on how to tailor forbearance here. For example, in the
2015 Open Internet Order, the Commission elected to grant broader
forbearance despite some calls to limit forbearance just to the scope
of relief previously granted to CMRS providers. We seek renewed comment
on that approach, as well as any alternative options for tailoring
forbearance here based on the regulatory experience in other contexts.
98. We also seek comment on whether forbearance should be
differently tailored in the specific context of the internet traffic
exchange portion of BIAS. In the 2015 Open Internet Order, the
Commission's ``definition for broadband internet access service
include[d] the exchange of internet traffic by an edge provider or an
intermediary with the broadband provider's network.'' Consequently,
under the 2015 Open Internet Order, internet traffic exchange was
subject to the same forbearance as BIAS more generally. We propose to
continue that uniform approach here, but also seek comment on whether
and to what extent the internet traffic exchange component of BIAS
should be subject to different tailoring of forbearance.
99. 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.

III. Proposed Open Internet Rules

100. 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 a strong standard of conduct
designed to prevent deployment of new practices that would harm
internet openness, and enhancements to the existing transparency rule.
In the RIF Order, the Commission broke with this longstanding approach
by altogether eliminating the open internet conduct rules, 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 national regulatory
approach toward BIAS.
101. 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. 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

102. 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. 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, ISPs' incentives and abilities to harm internet openness, the
effects of harmful conduct on consumer demand and edge innovation,
reliance on the Commission's communications sector expertise to address
harmful conduct, 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
103. In the 2015 Open Internet Order, the Commission found that
internet openness helps promote innovation, investment, and free
expression, among other goals. Among other things, the Commission found
that the record there ``overwhelmingly support[ed] the proposition that
the internet's openness is critical to its ability to serve as a
platform for speech and civic engagement,'' facilitate ``the
development of diverse content,

[[Page 76068]]

applications, and services,'' and enable ``a virtuous cycle of
innovation.'' We continue to place high importance on innovation,
investment, and free expression, and we believe that conduct rules
designed to ensure internet openness will better advance those goals,
consistent with the reasoning in the 2015 Open Internet Order. We seek
comment on that view.
104. We are skeptical of the RIF Order's rejection of free
expression as a likely benefit of internet conduct rules designed to
advance internet openness. The RIF Order theorized that competition
``will protect values such as free expression, to the extent that
consumers value free expression as a service attribute and are aware of
how their ISPs' actions affect free expression.'' We question, however,
whether the RIF Order was correct to place such confidence in the
marketplace as sufficient to advance free expression on the internet.
Do consumers and the public have information about how ISP actions
affect free expression on a sufficiently granular and detailed basis to
act on that information? Separately, the RIF Order acknowledged that
``[t]he competitive process and antitrust would not protect free
expression in cases where consumers have decided that they are willing
to tolerate some blocking or throttling in order to obtain other things
of value.'' We doubt that consumers are likely to act uniformly as a
single, undifferentiated group, particularly where issues like free
expression are concerned. We thus question how well the RIF Order's
analysis accounts for the interests of consumers who place different
values on free expression. More generally, we seek updated information
and analysis about the anticipated effects of internet conduct rules on
free expression.
2. Protecting Public Safety
105. We believe that blocking, throttling, paid prioritization, and
other potential conduct have the potential to impair public safety
communications in a variety of circumstances and therefore harm the
public. As discussed above, one of the Commission's fundamental
obligations under the Act is to advance public safety. The Mozilla
court highlighted this charge and recognized the significance of it,
emphasizing that ``whenever public safety is involved, lives are at
stake.'' It went on to note that ``[a]ny blocking or throttling of
[safety officials'] internet communications during a public safety
crisis could have dire, irreversible results.'' Similarly, in the 2015
Open Internet Order, the Commission recognized that paid prioritization
and peering disagreements can negatively affect public safety
communications traveling over the same networks. Above, we detail and
seek comment on the wide range of public safety communications and
applications that rely on broadband networks and on the related
national security concerns implicating broadband service providers. We
now seek comment on our belief that maintaining the RIF Order's ex post
enforcement framework will provide insufficient protection against
conduct harms, which includes harms to public safety or national
security. We note that the Mozilla court expressed specific skepticism
about the Commission's contention in the RIF Order that post-activity
enforcement is a suitable method to address harmful conduct in the
public safety context, emphasizing that ``even if discriminatory
practices might later be addressed on a post-hoc basis by entities like
the Federal Trade Commission, the harm to the public cannot be
undone.'' We believe that the conduct rules we propose are necessary to
prevent and mitigate harms to those public safety uses that would
result from blocking, throttling, and other conduct, and we seek
comment on our tentative conclusion. Our proposed conduct rules may
also support consumer use of telehealth service and remote healthcare
monitoring, such as through connected devices, by ensuring consumers
can continue to access these services without the threat of blocking,
throttling, or other degradation. We seek comment on consumer
experiences where they have been harmed.
106. We further believe our proposed conduct rules would have
particular benefits for the safety of individuals with disabilities.
Above, we highlighted that these individuals increasingly rely on
internet-based communications, and that ``[t]hese applications often
require significant bandwidth, making their use particularly sensitive
to data caps and network management practices.'' We believe the use of
broadband to facilitate internet-based communications by persons with
disabilities for public safety purposes, such as to contact emergency
service providers, has a higher likelihood of being degraded by
prioritization of latency-sensitive applications on the same facilities
than less data-intensive uses, such as email, software updates, or
cached video. We accordingly believe that our proposed rules would
prevent such degradation and seek comment on this proposed analysis.
107. We seek comment on any other public safety harms or
unaddressed concerns that the proposed rules would help to alleviate.
For example, would the proposed rules help to improve public safety
officials' ability to communicate via alerting systems to help improve
emergency preparedness? Would they help to provide additional necessary
bandwidth for IP-based communications to Public Safety Answering Points
via 9-1-1? Would such rules help the authorities responding to such
calls to have better or more complete information about an emergency to
ensure a more comprehensive or timely response? Would such rules help
public safety and law enforcement authorities to better communicate
with one another during their responses to emergencies? What public
safety issues have arisen since the Commission's prior 2015 and 2018
orders that the proposed rules would help to address?
3. ISPs' Incentive and Ability To Harm Internet Openness
108. In both the 2010 Open Internet Order and 2015 Open Internet
Order, the Commission concluded that open internet rules were needed
because ISPs have the incentive and ability to engage in practices that
pose a threat to internet openness. In particular, the Commission found
that because ISP networks serve as platforms for internet ecosystem
participants to communicate, ISPs ``are in a position to act as a
`gatekeeper' between end users' access to edge providers' applications,
services, and devices and reciprocally for edge providers' access to
end users.'' The 2015 Open Internet Order highlighted several economic
incentives ISPs have to exploit this gatekeeper role, ``such as
preferring their own or affiliated content, demanding fees from edge
providers, or placing technical barriers to reaching end users.'' This
behavior, the Commission found, ``has the potential to cause a variety
of other negative externalities that hurt the open nature of the
internet,'' which ISPs do not internalize. The Commission also
concluded that ISPs ``have the technical ability to act on incentives
to harm the open internet.''
109. The RIF Order offered several reasons for rejecting the prior
rationales, including ISPs' economic incentives and supposed material
competitive restraints. We believe these conclusions presumed that
there were other ISPs to which consumers can switch if they were
suffering open internet harms, and that the switching costs would not
deter such switching. In addition, we tentatively agree with the
Mozilla court, which found that, ``[t]aken together, the Commission
fail[ed] to provide a fully

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satisfying analysis of the competitive constraints faced by broadband
providers.'' The Commission also claimed that ``from the perspective of
many edge providers, end users do not single home, but subscribe to
more than one platform (e.g., one fixed and one mobile) capable of
granting the end user effective access to the edge provider's content
(i.e., they multi-home),'' and ``to the extent multihoming occurs in
the use of an application, there is no terminating monopoly.'' However,
consumers may lack access to both fixed and mobile connections, and
even when they do have access to both, the Commission did not show that
these connections allow consumers to access all edge provider services
unhindered, and therefore are truly competitive alternatives. Indeed,
the Commission has since concluded that ``fixed broadband and mobile
wireless broadband are not substitutes in all cases,'' finding that
each type of service ``enables different situational uses.'' We seek
comment on this analysis.
110. The RIF Order also found the Commission's action in the 2015
Open Internet Order was unjustified because it lacked evidence of harms
to internet openness. Setting aside the several examples of harmful
conduct discussed in the 2015 Open Internet Order and detailed in the
record for the RIF Order, we believe the RIF Order's conclusion gave
inadequate consideration to the effects of the Commission's consistent
efforts to apply and enforce the open internet standards since early
2005, which we believe deterred harmful ISP conduct. Thus, to the
extent there is limited evidence of harmful conduct prior to the 2015
Open Internet Order, we believe that demonstrates the Commission's
consistent efforts to apply and enforce open internet standards since
2005 were effective and are needed, not that the 2015 Open Internet
Order and the protections it adopted were unjustified. We seek comment
on this analysis.
111. We tentatively conclude that ISPs continue to have the
incentive and ability to engage in practices that pose a threat to
internet openness, and seek comment on this tentative conclusion and
the above analysis. We also seek to update the record underlying the
conclusions in the 2010 Open Internet Order and 2015 Open Internet
Order. How have changes in the marketplace or technology since 2015
affected ISPs', including smaller ISPs, incentives and ability to
engage in such practices? To what extent do ISPs have economic
incentives and mechanisms to block or disadvantage a particular edge
provider or class of edge providers? To what extent do vertically
integrated providers have particularized incentives to discriminate--on
price, quality, or other bases--in favor of affiliated products? For
instance, we believe that many major ISPs are affiliated with OTT
services or continue to offer competitive vertically integrated OTT
services, and frequently provide consumers with promotional offers that
bundle OTT services with BIAS. Do these affiliate relationships and
vertically integrated offerings create additional incentive for ISPs to
favor those services over others? To what extent should the Commission
evaluate the ability and incentives of other intermediaries involved in
the exchange of internet traffic, such as middle mile and backbone
providers, to engage in conduct harmful to internet openness,
particularly with respect to their relationships with ISPs? We seek
comment on this analysis.
112. We also seek comment on whether ISPs are incentivized to
increase revenues by charging edge providers for access or prioritized
access to the ISPs' end users. Are there justifications for charging
fees to edge providers that were not present in 2015? We seek comment
on these and other economic incentives and abilities that ISPs may have
to limit openness.
113. We seek comment on the state of competition in the BIAS
market. We note that the Commission's 2022 Communications Marketplace
Report found that, as of 2021, approximately 36 percent of households
lack a competitive option for fixed broadband at speeds of 100/20 Mbps
and that 70 percent of households in rural areas lack such an option.
Preliminary FCC staff calculations using December 2022 Broadband
Deployment Collection data yield similar results. While competition in
the mobile BIAS market is somewhat more significant, fixed and mobile
services have not proven to be substitutable. To what extent does the
state of competition affect ISPs' incentives to limit openness? Are
there different incentives for small ISPs? Similarly, to what extent
does the state of competition affect ISPs' incentives to innovate and
invest in their networks? We seek insight into whether consumers in all
areas of the country have adequate choices in the fixed and mobile
broadband service market. Also, to what extent do broadband services
with substantially different technical characteristics serve as
competitive substitutes? How, if at all, do commercial practices differ
in places where consumers have only one or two choices, particularly
when those choices use different technologies? Although the Commission
previously found that its authority is not predicated on a finding of
market power, and this finding has twice been upheld, is there a reason
we should engage in a market power analysis now with respect to ISPs
and, if so, how? We further seek comment on whether there are other
economic theories that we should consider to better understand and
assess ISP incentives to engage in practices that affect the internet's
openness. We also seek comment on the extent to which the state of
competition in the BIAS market should play a role in our decision as to
whether or not to reclassify BIAS as a Title II service.
114. We further seek information on ISP conduct since the RIF Order
was adopted. Are there examples of conduct that has harmed internet
openness? We note that one 2019 study suggested that ISPs regularly
throttle video content. Aside from specific examples of harm, could
other factors have deterred ISPs from engaging in any behavior that
might have violated open internet principles? For instance, while the
RIF Order was published in the Federal Register in February of 2018, it
was not until the Mozilla case concluded in October of 2019 that it was
clear open internet rules would no longer be in effect. To what degree
might long-term contracts, and the general difficulty of implementing
new business models, also have played a role in making it difficult for
ISPs to exploit opportunities the RIF Order created? Could the threat
of regulation have led ISPs to make voluntary commitments to maintain
service consistent with certain conduct rules established in the 2015
Open Internet Order, as they did, and if so, would this threat have
dimmed with time? Because broadband connections were so essential
during the pandemic, we believe ISPs have been under increased scrutiny
by the Commission, the media, and the public since March 2020, and
therefore have had a strong incentive to follow their voluntary
commitments. Further, following the RIF Order, ISPs have been subject
to state laws and executive orders addressing internet conduct. How
have state regulations addressing ISP conduct affected ISP conduct
nationwide? We also observe that unprecedented consumer demand for BIAS
and edge innovation that occurred during the pandemic also led to
unprecedented growth for ISPs. How did this growth impact providers'
incentives either to comply with open internet principles or to engage
in behavior that might increase their revenues at the expense of
internet openness? Are smaller ISPs' incentives or ability to engage in

[[Page 76070]]

conduct that might harm internet openness different from those facing
larger ISPs? What are the costs and advantages of waiting to act only
after ISPs begin to take actions that might harm internet openness?
Would such conduct be immediately identifiable? How quickly could ISPs
comply with new rules and what harms would occur in the meantime? Going
forward, is there reason to believe that ISPs will engage in conduct
that harms the open internet, particularly if the Commission chooses
not to adopt open internet rules?
4. Consumer Demand and Edge Innovation
115. We believe that an important byproduct of an open internet is
the edge innovation and consumer demand that promotes ISP investment,
and seek comment on this position. In the 2015 Open Internet Order, the
Commission recognized that ``innovations at the edges of the network
enhance consumer demand, leading to expanded investments in broadband
infrastructure that, in turn, spark new innovations at the edge.'' The
Commission referred to this as the ``virtuous cycle,'' and it was the
foundation for the action the Commission took in both the 2010 Open
Internet Order and 2015 Open Internet Order. The validity of the
virtuous cycle was upheld by both the Verizon court and the USTA court.
The RIF Order, however, discounted the 2015 Open Internet Order's
reliance on the virtuous cycle, contending there was a two-sided market
in which ISPs acted as platforms and benefited from facilitating
interactions between both sides of the market--edge providers and end
users--and profits from inducing both sides of the market to use its
platform.
116. We tentatively conclude that the RIF Order's explanation of
how two-sided markets work does not address a central problem open
internet rules are intended to address. When an ISP's actions harm
content creators and edge providers, the impact is distributed across
all ISPs, not just the ISP undertaking the action. Yet, each ISP only
accounts for the impact on its own operations. Consequently, a profit-
making decision from the perspective of the individual ISP creates
repercussions across all ISPs that harm the industry and the economy at
large. When an ISP makes the profit-maximizing decisions the RIF Order
describes, it only accounts for the impacts of its decision on its own
company. It does not account for the impact of those actions on ISPs
that lie outside its geographic market. These constitute the bulk of
ISPs. Thus, an ISP, for example, that does not face fully effective
competition, might expect to see higher profits if it sets prices for
edge providers that recover in expectation a little more than its long-
term costs. However, consistent with the reasoning of the RIF Order, it
will not set prices for edge providers that are so high that the impact
on the quality of edge provider service would cause the ISP to lose
more because it would be forced to lower prices to its own consumers.
We believe that the difficulty with the RIF Order analysis is that in
setting its profit-maximizing prices for edge providers, the ISP lowers
service quality for all ISPs, but that harm does not feature in the
ISP's profit-maximizing calculation. While the impact on content
quality of a single ISP setting prices for edge providers somewhat
above the competitive level will be small and spread out over all ISPs,
all similarly situated ISPs face similar incentives. Thus, since ISPs
have no means of coordinating their behavior, and doing so could be
illegal, each will behave in this way with material negative cumulative
effects. The result is a breaking of the virtuous cycle described in
the 2010 Open Internet Order: not only will ISPs collectively be worse
off, but so will the broader economy. We seek comment on this analysis
and other bases for validating or questioning the RIF Order's analysis.
117. We believe it is necessary to secure the open internet to
preserve the virtuous cycle wherein market signals on both sides of
ISPs' platforms encourage consumer demand, content creation, and
innovation, with each respectively increasing the other, providing ISPs
incentives to invest in their networks. We further believe that if
innovative edge services are subject to blocking, throttling, paid
prioritization, or other conduct by ISPs that harms internet openness,
that conduct will reduce edge innovation. This will, in turn, reduce
the quality and quantity of edge services available to consumers, and,
specifically with blocking and throttling, directly inhibit consumers
from accessing the edge services they desire. The impacts on edge
services and consumers will reduce demand for broadband connections and
ultimately suppress the need for ISPs to invest in upgrades to their
networks or new deployments to meet that demand. Stalled ISP network
improvements ultimately will undermine new edge innovation and consumer
demand. We seek comment on this proposed analysis.
118. We believe the conduct rules we propose will protect edge
innovation and the ability of consumers to access those new and
developing services, thereby promoting both edge and ISP investment. We
seek comment on this view. In particular, what is the role of the
internet's openness in facilitating consumer demand and edge innovation
that encourages edge and ISP investment? We are also interested in
understanding the role the open internet may play in the promotion of
edge competition or in the reduction or elimination of barriers to edge
entry and investment.
5. The Commission's Ability To Address Conduct That Undermines an Open
Internet
119. We believe that, as the expert agency on communications, the
Commission is best positioned to safeguard internet openness. The RIF
Order removed the Commission's authority to enforce open internet
requirements and left to the FTC the responsibility to address harmful
ISP conduct. The current Chair of the FTC agrees that the Federal
Communications Commission ``has the clearest legal authority and
expertise to fully oversee internet service providers,'' noting
specifically that she supports efforts by the Commission ``to reassert
that authority and once again put in place the nondiscrimination rules,
privacy protections, and other basic requirements needed to create a
healthier market.'' We seek comment on whether the Commission's
longstanding oversight of the communications industry gives it unique
technical, economic, and public interest aptitude in evaluating ISP
conduct. To what extent does the Commission's enforcement apparatus
provide it with sufficient authority and capabilities to address
harmful conduct by ISPs, including by securing administrative relief?
What efficiencies would be achieved as a result of the Commission
having authority over BIAS along with other communications services
(e.g., voice and cable) that providers offer to customers as part of
bundled offerings?
6. The RIF Order's Framework
120. When the Commission repealed the open internet rules in the
RIF Order, it broke from the Commission's persistent efforts to
preserve an open internet. The RIF Order did not address the
longstanding bipartisan agreement that the Commission should prohibit
ISPs from engaging in blocking, throttling, and other conduct that
undermines an open internet and--importantly--that it should have the
authority to enforce those restrictions. This was echoed by the Mozilla
court, which was ``troubled by the

[[Page 76071]]

Commission's failure to grapple with the fact that, for much of the
past two decades, ISPs were subject to some degree of open Internet
restrictions.'' The Mozilla court explained, that ``[w]hile outside
observers may associate `light touch' with a distinct era in regulation
and `open Internet' with another era, the successive Commission
majorities have consistently vowed fealty to both.'' We believe the RIF
Order failed to ensure the most basic protections for the open
internet--prohibitions on blocking and throttling--let alone other
threats to the open internet identified in the 2015 Open Internet
Order. We seek comment on this analysis.
121. We believe that the 2015 Open Internet Order was consistent
with Commission precedent by applying a light-touch regulatory
framework to preserve an open internet. When the Verizon court struck
down the 2010 Open Internet Order, the Commission sought to implement a
solution to preserve longstanding open internet standards that
supported the unprecedented growth in fixed and mobile subscribership,
edge innovation, and network investment that occurred up to that point.
The Commission determined that classifying BIAS as a Title II service
was not only more consistent with a modern assessment of how the
definition of ``telecommunications service'' applies to current BIAS
offerings, but would also enable it to apply and enforce open internet
rules. Thus, in establishing open internet rules using a light-touch
application of Title II, we believe the 2015 Open Internet Order
ensured maintenance of the status quo that had existed for more than
ten years prior to that Order. As such, we tentatively conclude that
the action we propose today restores the status quo that had existed up
until the Commission adopted the RIF Order, in which clear rules of the
road ensure that edge innovation and investment flourish and consumers
can access all lawful content they see fit. We seek comment on our
proposed assessment.
122. Transparency. The Commission's transparency rule requires ISPs
to publicly disclose the network practices, performance
characteristics, and commercial terms of the BIAS they offer, including
disclosure of any blocking, throttling, and affiliated or paid
prioritization practices. We recognize that transparency is a valuable
tool to protect the open internet, but that it is only one element of a
comprehensive framework that prevents consumers from experiencing harms
that inhibit their access to an open internet. While the transparency
requirements currently in place provide consumers and edge providers
the ability to make informed decisions, we believe their effectiveness
is limited because they do not restrict ISPs from engaging in
activities that have long enjoyed bipartisan opposition--blocking,
throttling, and discrimination--let alone other conduct that has the
potential to cause harm, such as paid prioritization. Indeed, the RIF
Order only requires that companies disclose their blocking, throttling,
and paid or affiliated prioritization in their transparency
disclosures; it does not prohibit companies from engaging in these
practices. We tentatively conclude that these are the types of conduct
that require ex ante intervention to ensure they do not happen in the
first instance, and therefore tentatively conclude that the
comprehensive set of conduct rules that we propose today are needed to
protect consumers from this conduct. We seek comment on this tentative
conclusion.
123. Consumer Protection and Antitrust Law. We seek comment on
whether, in practice, consumer protection and antitrust laws provide
sufficient protections against blocking, throttling, paid
prioritization, and other conduct that harms the open internet, as the
RIF Order asserted. The Mozilla court explained that the RIF Order
``theorized why antitrust and consumer protection law is preferred to
ex ante regulations but failed to provide any meaningful analysis of
whether these laws would, in practice, prevent blocking and
throttling.'' The RIF Order also seems to concede that blocking,
throttling, and discrimination may be permitted under its chosen
oversight and enforcement framework, and that paid prioritization may
be found to be permissible in many instances.
124. We seek comment on the application of consumer protection laws
by the FTC. Notably, a 2021 Supreme Court ruling restricted the FTC's
ability to seek monetary relief on behalf of consumers, thereby
reducing the deterrent effect of the FTC's actions. Congress has also
created other exceptions to the FTC's consumer protection authority and
assigned consumer protection responsibilities to other agencies that
have expertise in both consumer protection and the relevant industry.
Finally, we also observe that while the FTC has generally proceeded
through ex post enforcement actions and public guidance,
reclassification would allow the Commission to proceed by establishing
ex ante, commonly applicable rules. We seek comment on the benefits and
burdens of such an approach.
125. We also seek comment on whether the FTC's and Department of
Justice's (DOJ) antitrust enforcement authority is limited in its
ability to protect against open internet harms. The RIF Order claims
that antitrust would be effective because harmful conduct would be
evaluated under the ``rule of reason,'' which it claims amounts to a
``consumer welfare test.'' However, the ``rule of reason'' analysis
includes a subjective determination about whether alleged economic
benefits outweigh recognized consumer harms. Because the analysis
focuses on economic factors, does it provide sufficient weight to
important non-economic factors, which courts have recognized are
appropriate to consider under the public interest standard of the Act?
Even if strict application of antitrust law does not reveal a violation
of section 1 or section 2 of the Sherman Act, could there still be
market distortions and power asymmetries, both between ISPs and other
market players and between ISPs and consumers, that require ex ante
intervention in the public interest, at least in instances where the
Commission may find that conduct is unjust, unreasonable, or
unreasonably discriminatory? For example, would regulatory intervention
be necessary in instances when there is a high likelihood of harm to
consumers and the likelihood or availability of effective remedies for
consumers is speculative?
126. Consumer Relief. Even if the RIF Order's oversight and
enforcement framework were to provide some protection, we seek comment
on whether it gives consumers a meaningful opportunity to secure
relief. The RIF Order concluded that its framework ``ensures that
consumers have means to take remedial action if an ISP engages in
behavior inconsistent with an open Internet.'' It appears that
consumers' primary means for seeking recourse under that framework is
to submit complaints to the FTC with the goal of spurring the agency to
direct its resources to investigate and address the alleged harms. With
antitrust, in particular, it appears that to pursue relief, consumers
must submit complaints that describe conduct that inhibits their access
to the internet, attempt to tie that conduct to anticompetitive
behavior that harms other entities, and otherwise rely on the FTC or
other entities to bring suits alleging anticompetitive conduct that
also harms the open internet. We seek comment on whether consumers can
effectively use these mechanisms to obtain relief, and do so in a
timely

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manner, and we seek comment generally regarding consumers' experiences
obtaining relief following the RIF Order.
127. Aside from the remedies offered by law, we seek comment on the
adequacy of other methods the RIF Order offers that consumers can use
to secure relief. First, the RIF Order suggests that consumers may be
able to seek service from another ISP if they are experiencing harmful
conduct, but as discussed above, it is not clear there is adequate
local competition in many areas, especially rural areas, to give
consumers a meaningful choice among providers, and we seek comment on
this assessment. For instance, 36 percent of households lack a
competitive option for broadband at speeds of 100/20 Mbps and 70
percent of households in rural areas lack such an option. At higher
speeds, the level of competition becomes non-existent in most areas
with approximately 96 percent of households lacking a competitive
option for gigabit broadband service. Even when consumers have access
to another provider not engaging in behavior that is inconsistent with
an open Internet, to what extent is their choice between providers
often negated because the alternatives charge significantly higher
prices or provide lower performance and quality of service? Second, the
RIF Order states that if ISPs engage in conduct that harms the open
internet, public attention from consumer backlash would police their
behavior, but it seems to assume that the harmful conduct by ISPs would
be obvious or widespread--rather than surreptitious or sporadic--such
that a sufficient number of consumers would be aware of the conduct and
vocal in their objections to have the necessary force to influence ISP
conduct. Third, even if ISP conduct was sufficiently egregious to
result in a consumer backlash, how would that backlash police ISP
behavior? We seek comment on the foregoing.
128. Further, to the extent the RIF Order's oversight and
enforcement framework can address harmful conduct when it occurs, we
seek comment on whether the framework will still result in fewer
instances where ISPs will be subject to enforcement action for conduct
that is clearly harmful to an open internet. If the RIF Order's
framework becomes the settled approach, will consumers suffer a greater
amount of harmful conduct than would exist under the open internet
rules we propose, and receive fewer remedies when that harm occurs?
Even when remedies are achieved, will they provide sufficient redress
to harms resulting from ISPs' conduct? Does the RIF Order's regulatory
framework adequately serve the public interest, given how essential
broadband is to full participation in today's society and economy?
129. Edge Provider Protections. We believe the RIF Order's reliance
on antitrust protections undermines the virtuous cycle by failing to
protect the small edge services that comprise an important part of the
internet. While antitrust protections would apply where, for example,
an ISP favored its own edge provider, or sought to harm a competing
edge provider, antitrust protections do not forbid the unjust or
unreasonable exercise of market powers. But it is exactly those
practices that could unravel the virtuous cycle. As part of its
justification for reliance on antitrust law, the RIF Order expresses
particular concern about the effect of regulations on small ISPs. But
we believe that there are far more edge services that are small--
typically many times smaller than the smallest ISPs--which the RIF
Order does not acknowledge or evaluate. We seek comment on this belief
and on the extent to which providers of these edge services would have
any leverage in negotiations with ISPs of any size, let alone large,
vertically integrated ISPs. Should large, or even small, ISPs begin
seeking paid prioritization arrangements, for example, would this
disproportionately harm small edge providers, for example, because
larger edge providers could use their own countervailing power to
better manage the situation? Would this increase entry barriers,
harming edge provider competition and innovation, for example, by
discouraging new entry against larger established edge providers? In
all of these cases, what legal case would a harmed edge provider be
able to bring under antitrust law and what would the likelihood of
success be? The RIF Order argues that ISPs have incentives to support
nascent competition as more edge provider competition will reduce the
countervailing power of large, entrenched ISPs. We seek comment on
whether this is accurate, and in particular whether any efforts or
investments by an ISP to help nascent edge providers would produce
diffuse benefits to all ISPs, and thus whether any single ISP would
have appropriate incentives to help develop edge provider competition.
130. Research in innovation economics suggests that edge innovation
is heterogeneous. Some types of edge innovation will thrive under
general purpose open networks. Such innovations could have significant
positive spillover effects that benefit the broader internet ecosystem.
However, other types of edge innovation, especially during the early
phases of the innovation process, may be facilitated by quality of
service differentiation of the network. This suggests that a forward-
looking open internet policy will be most supportive of innovation if
it protects the openness of the access platforms for innovations with
high spillover effects while at the same time allowing non-
discriminatory forms of network differentiation to support edge
innovations that are facilitated by such support. We seek comment on
this proposed analysis.
131. Costs of Oversight Regime. We seek comment generally on the
costs to ISPs resulting from the RIF Order's chosen oversight regime.
The RIF Order claims that its approach would lower compliance costs for
ISPs. We reiterate, however, that because the RIF Order's preemption
directive was vacated by the D.C. Circuit in Mozilla, ISPs are now
subject to a patchwork of state requirements for BIAS, rather than a
national regulatory framework. We seek comment on the costs of this
patchwork approach.
132. We also seek comment on the costs of the RIF Order's consumer
protection and antitrust oversight framework. We observe that whether
an act is unfair or deceptive under consumer protection law each
depends on its own three-prong subjective test, which can result in
unforeseen outcomes, and the antitrust rule of reason relies on a case-
by-case evaluation. In light of these factors, we seek comment on
whether the RIF Order's removal of bright-line, ex ante rules can
result in significant compliance cost for ISPs. Relatedly, what are the
costs to ISPs for having to evaluate the risks of their planned conduct
under this consumer protection and antitrust oversight framework?

B. Conduct Rules

133. We propose to adopt rules to prohibit ISPs from blocking,
throttling, or engaging in paid or affiliated prioritization
arrangements, and also seek comment on the adoption of a proposed
general conduct standard for ISPs. The last several years have
demonstrated not only broadband's essential value, but also the
consequences to consumers of its absence or degradation, and we
therefore believe it important to establish clear, bright-line rules.
We seek comment on the proposals and analyses herein.

[[Page 76073]]

134. The conduct rules we propose track the language of the rules
the Commission adopted in the 2015 Open internet Order. In 2015, the
Commission found that blocking, throttling, and paid prioritization
arrangements were three practices that ``in particular demonstrably
harm the open internet.'' The Commission adopted rules to ban these
three practices, finding that they are ``inherently unjust and
unreasonable, in violation of section 201(b) of the Act, and that these
practices threaten the virtuous cycle of innovation and investment that
the Commission intends to protect under its obligation and authority to
take steps to promote broadband deployment under section 706 of the
1996 Act.'' Even while eliminating these protections in 2018, the RIF
Order still recognized the harms of blocking and throttling practices
and required disclosure of such practices under its revised
transparency rule. Below, we seek comment on how experience since the
RIF Order would help inform the scope and language of prohibitions on
blocking, throttling, and paid prioritization arrangements. At the
outset, however, we seek comment at a broader level on whether these
three practices are still the key threats to internet openness.
135. We do not anticipate that the open Internet rules we propose
today will have a harmful effect on investment. ISP investment was not
inhibited from 2005 through 2016, when the Commission consistently
sought to impose and enforce open internet standards. We also believe
that many ISP investment decisions over the next several years will be
significantly influenced by the influx of federal and state funding
allocated to ISPs to support infrastructure deployment and broadband
connectivity. In light of these facts, we do not expect that adopting
open internet rules will change ISP investment decisions. Do commenters
agree? Furthermore, we believe that ``[w]ithout an open Internet, there
would be less broadband investment and deployment'' because of the
expected harm to the virtuous cycle. As the Commission concluded in the
2015 Open Internet Order, ``to the extent that our decision might in
some cases reduce providers' investment incentives, we believe any such
effects are far outweighed by positive effects on innovation and
investment in other areas of the ecosystem that our core broadband
policies will promote.'' We seek comment on these views.
1. Preventing Blocking of Lawful Content, Applications, Services, and
Non-Harmful Devices
136. We propose to adopt a bright-line rule prohibiting ISPs from
blocking lawful content, applications, services, or non-harmful
devices. In 2015, the Commission found that ISPs function as
gatekeepers for both their end-user customers who access the internet,
and for various transit providers, CDNs, and edge providers attempting
to reach the broadband provider's end-user subscribers. The Commission
concluded that ISPs have the economic incentives and technical ability
to engage in practices that pose a threat to internet openness by
harming other network providers, edge providers, and end users.
Reversing course in 2018, the Commission determined, in contrast, that
``ISPs have strong incentives to preserve internet openness, and these
interests typically outweigh any countervailing incentives an ISP might
have.'' As discussed above, we tentatively conclude that ISPs continue
to have the incentive and ability to engage in practices that threaten
internet openness, and as such, we believe rules are needed to protect
a consumer's right to access lawful content, applications, and
services, and to use non-harmful devices. We seek comment on this
proposed analysis.
137. As the Commission found in the 2010 Open Internet Order and
the 2015 Open Internet Order, we believe that ``the freedom to send and
receive lawful content and to use and provide applications and services
without fear of blocking is essential to the Internet's openness.'' To
that end, we propose to adopt the following no-blocking rule applicable
to both fixed and mobile providers of BIAS, which tracks the language
of the prohibition adopted by the 2015 Open Internet Order:

A person engaged in the provision of broadband Internet access
service, insofar as such person is so engaged, shall not block
lawful content, applications, services, or non-harmful devices,
subject to reasonable network management.

We seek comment on this proposed rule and whether this remains the
best formulation of a no-blocking principle for ISPs. As in 2015, we
intend that the phrase ``content, applications, and services'' refers
to all traffic transmitted to or from end users of a broadband internet
access service, including traffic that may not fit clearly into any of
these categories. Is this language expansive enough to encompass all
types of internet traffic, or are there additional categories that we
should include? We also propose to make clear that the no-blocking rule
would prohibit ISPs from charging edge providers a fee to avoid having
the edge providers' content, service, or application blocked from
reaching the broadband provider's end-user customers. As in 2015, we
also propose that this prohibition will apply to transmission of lawful
content only and does not prevent or restrict an ISP from refusing to
transmit unlawful material. We seek comment on these proposals. What
other consequences of a no-blocking rule should we consider?
138. As far back as the Commission's Internet Policy Statement in
2005, major ISPs have broadly accepted a no-blocking principle. Even
after the repeal of the no-blocking rule, many ISPs continue to
advertise a commitment to open internet principles on their websites,
which include commitments not to block traffic except in certain
circumstances. Rather than reflect a lack of potential harm to
consumers and the open internet, we believe that these continued
commitments to no-blocking principles emphasize their importance to the
internet as we know it. We believe that codifying this principle in the
Commission's rules is necessary to protect consumers and internet
openness against any ISP's decision in the future to move away from
this widely accepted principle. Furthermore, because this principle is
so widely accepted, including by ISPs, we anticipate compliance costs
will be minimal. We seek comment on this analysis. We seek comment on
whether the predictive reasoning underlying the Commission's repeal of
the no-blocking rule in 2018 proved accurate. We also seek specific
comment regarding any instances of an ISP blocking lawful content,
applications, services or non-harmful devices in the years since the
Commission repealed the no-blocking rule. Finally, we seek comment on
the costs and benefits of a no-blocking rule.
2. Preventing Throttling of Lawful Content, Applications, Services, and
Non-Harmful Devices
139. Next, we propose to adopt a rule to prevent ISPs from
throttling lawful content, applications, services, and non-harmful
devices. As part of the no-blocking rule that the Commission adopted in
the 2010 Open Internet Order, the Commission prohibited ISPs from
``impairing or degrading particular content, applications, services, or
non-harmful devices so as to render them effectively unusable (subject
to reasonable network management),'' because such conduct ``can have
the same effects as outright blocking.'' In 2015, the Commission
concluded that a standalone prohibition was required to

[[Page 76074]]

prevent ISPs from impairing or degrading lawful internet traffic. The
Commission used the term ``throttling'' to refer to such conduct that
is not outright blocking, but that inhibited the delivery of particular
content, applications, or services, or particular classes of content,
applications, or services.
140. We propose to adopt the following no-throttling rule
applicable to both fixed and mobile providers of BIAS, which tracks the
language of the Commission's 2015 Open Internet Order, and seek comment
on our proposal:

A person engaged in the provision of broadband internet access
service, insofar as such person is so engaged, shall not impair or
degrade lawful internet traffic on the basis of internet content,
application, or service, or use of a non-harmful device, subject to
reasonable network management.

As in 2015, we intend this rule to prohibit conduct that impairs or
degrades lawful traffic to a non-harmful device or class of devices,
which includes any conduct by an ISP to impair, degrade, slow down, or
render effectively unusable particular content, services, applications,
or devices, that is not reasonable network management. We also propose
to give the same meaning to ``content, applications, and services'' as
we propose in the context of the no-blocking rule, and we seek comment
on this proposal. Have there been any technolo

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