Rule2024-10674
Safeguarding and Securing the Open Internet; Restoring Internet Freedom
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Published
May 22, 2024
Effective
July 22, 2024
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission or FCC) adopts a Declaratory Ruling, Report and Order, Order, and Order on Reconsideration that reestablishes the Commission's authority over broadband internet access service (BIAS). The Declaratory Ruling classifies broadband internet access service as a telecommunications service under Title II of the Communications Act, providing the Commission with additional authority to safeguard national security, advance public safety, protect consumers, and facilitate broadband deployment. The Order establishes broad, tailored forbearance of the Commission's application of Title II to broadband providers while maintaining Title II provisions the Commission needs to fulfill its obligations and objectives. The Report and Order reinstates straightforward, clear rules that prohibit blocking, throttling, or engaging in paid or affiliated prioritization arrangements, adopts certain enhancements to the transparency rule, and reinstates a general conduct standard that prohibits unreasonable interference or unreasonable disadvantage to consumers or edge providers. The Order on Reconsideration partially grants and otherwise dismisses as moot four petitions for reconsideration filed in response to the 2020 Restoring Internet Freedom Remand Order.
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[Federal Register Volume 89, Number 100 (Wednesday, May 22, 2024)]
[Rules and Regulations]
[Pages 45404-45556]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-10674]
[[Page 45403]]
Vol. 89
Wednesday,
No. 100
May 22, 2024
Part V
Federal Communications Commission
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47 CFR Parts 8 and 20
Safeguarding and Securing the Open Internet; Restoring Internet
Freedom; Final Rule
Federal Register / Vol. 89 , No. 100 / Wednesday, May 22, 2024 /
Rules and Regulations
[[Page 45404]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 8 and 20
[WC Docket Nos. 23-320, 17-108; FCC 24-52, FR ID 219926]
Safeguarding and Securing the Open Internet; Restoring Internet
Freedom
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) adopts a Declaratory Ruling, Report and Order,
Order, and Order on Reconsideration that reestablishes the Commission's
authority over broadband internet access service (BIAS). The
Declaratory Ruling classifies broadband internet access service as a
telecommunications service under Title II of the Communications Act,
providing the Commission with additional authority to safeguard
national security, advance public safety, protect consumers, and
facilitate broadband deployment. The Order establishes broad, tailored
forbearance of the Commission's application of Title II to broadband
providers while maintaining Title II provisions the Commission needs to
fulfill its obligations and objectives. The Report and Order reinstates
straightforward, clear rules that prohibit blocking, throttling, or
engaging in paid or affiliated prioritization arrangements, adopts
certain enhancements to the transparency rule, and reinstates a general
conduct standard that prohibits unreasonable interference or
unreasonable disadvantage to consumers or edge providers. The Order on
Reconsideration partially grants and otherwise dismisses as moot four
petitions for reconsideration filed in response to the 2020 Restoring
Internet Freedom Remand Order.
DATES: Effective July 22, 2024, except for amendatory instruction 7
(revisions to 47 CFR 8.2(a) and (b)), which is delayed indefinitely.
The FCC will publish a document in the Federal Register announcing the
effective date.
As of September 19, 2024, China Mobile International (USA) Inc.,
China Telecom (Americas) Corporation, China Unicom (Americas)
Operations Limited, Pacific Networks Corp., and ComNet (USA) LLC, and
their affiliates and subsidiaries as defined pursuant to 47 CFR
2.903(c), shall discontinue any and all provision of broadband internet
access service.
ADDRESSES: Federal Communications Commission, 45 L Street SW,
Washington, DC 20554. In addition to filing comments with the Office of
the Secretary, a copy of any comments on the Paperwork Reduction Act
information collection requirements contained herein should be
submitted to Nicole Ongele, Federal Communications Commission, 45 L
Street SW, Washington, DC 20554, or send an email to <a href="/cdn-cgi/l/email-protection#eabab8abaa8c8989c48d859c"><span class="__cf_email__" data-cfemail="02525043426461612c656d74">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: For further information, contact Chris
Laughlin, Wireline Competition Bureau at 202-418-2193. 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#a0f0f2e1e0c6c3c38ec7cfd6"><span class="__cf_email__" data-cfemail="08585a49486e6b6b266f677e">[email protected]</span></a> or contact Nicole Ongele, <a href="/cdn-cgi/l/email-protection#511f38323e3d347f1e3f36343d34113732327f363e27"><span class="__cf_email__" data-cfemail="400e29232f2c256e0f2e27252c25002623236e272f36">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Declaratory Ruling, Order, Report and Order, and Order on
Reconsideration in WC Docket Nos. 23-320 and 17-108, FCC 24-52, adopted
on April 25, 2024, and released on May 7, 2024. The full text of the
document is available on the Commission's website at <a href="https://docs.fcc.gov/public/attachments/FCC-24-52A1.pdf">https://docs.fcc.gov/public/attachments/FCC-24-52A1.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#cb8d8888fefbff8bada8a8e5aca4bd"><span class="__cf_email__" data-cfemail="e9afaaaadcd9dda98f8a8ac78e869f">[email protected]</span></a> or call the Consumer & Governmental Affairs Bureau at
(202) 418-0530 (voice).
Paperwork Reduction Act of 1995 Analysis
This document contains new or modified information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, will invite the general public to comment on
the information collection requirements contained in the Report and
Order as required by the Paperwork Reduction Act of 1995, Public Law
104-13. In addition, the Commission notes that pursuant to the Small
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), we previously sought specific comment on how the
Commission might further reduce the information collection burden for
small business concerns with fewer than 25 employees.
In the Report and Order, we adopt the transparency rule originally
adopted in 2010 and reaffirmed in 2015, which caters to a broader
relevant audience of interested parties than the audience identified in
the Restoring Internet Freedom (RIF) Order (83 FR 7852 (Feb. 22,
2018)). We reinstate enhancements to the transparency rule disclosures
pertaining to network practices and performance characteristics.
Specifically, with regard to network practices, we reaffirm that the
transparency rule requires that BIAS providers disclose any practices
applied to traffic associated with a particular user or user group
(including any application-agnostic degradation of service to a
particular end user), and requires that disclosures of user-based or
application-based practices must include the purpose of the practice;
which users or data plans may be affected; the triggers that activate
the use of the practice; the types of traffic that are subject to the
practice; and the practice's likely effects on end users' experiences.
In addition, we require BIAS providers to disclose any zero-rating
practices.
We reinstate the enhanced performance characteristics disclosures
eliminated in 2017 to require BIAS providers to disclose packet loss
and to require that performance characteristics be reported with
greater geographic granularity and be measured in terms of average
performance over a reasonable period of time and during times of peak
usage. We also require BIAS providers to directly notify end users if
their individual use of a network will trigger a network practice,
based on their demand prior to a period of congestion, that is likely
to have a significant impact on the end user's use of the service. We
temporarily exempt (with the potential to become permanent) BIAS
providers that have 100,000 or fewer BIAS subscribers as per their most
recent FCC Form 477, aggregated over all affiliates of the provider,
from the requirements to disclose packet loss and report their
performance characteristics with greater geographic granularity and in
terms of average performance over a reasonable period of time and
during times of peak usage, as well as from the direct notification
requirement to provide them additional time to develop appropriate
systems. We delegate to the Consumer and Governmental Affairs Bureau
(CGB) the authority to determine whether to maintain the exemption, and
if so, the appropriate bounds of the exemption. We require providers to
disclose all information required by the transparency rule on a
publicly available, easily accessible website and that all transparency
disclosures made pursuant to the transparency rule also be made
available in machine-readable format.
In addition, to provide upfront clarity, guidance, and
predictability, we adopt an updated process for providers seeking an
advisory opinion from Commission staff regarding the open
[[Page 45405]]
internet rules, through which any BIAS provider may request an advisory
opinion regarding the permissibility of its proposed policies and
practices affecting access to BIAS.
Congressional Review Act
The Commission has determined, and the Administrator of the Office
of Information and Regulatory Affairs, Office of Management and Budget,
concurs, that this rule is major under the Congressional Review Act, 5
U.S.C. 804(2). The Commission will send a copy of the Declaratory
Ruling, Order, Report and Order, and Order on Reconsideration to
Congress and the Government Accountability Office pursuant to 5 U.S.C.
801(a)(1)(A).
Synopsis
I. Declaratory Ruling: Classification of Broadband Internet Access
Services
1. We reinstate the telecommunications service classification of
BIAS under Title II of the Act. Reclassification will enhance the
Commission's ability to ensure internet openness, defend national
security, promote cybersecurity, safeguard public safety, monitor
network resiliency and reliability, protect consumer privacy and data
security, support consumer access to BIAS, and improve disability
access. We find that classification of BIAS as a telecommunications
service represents the best reading of the text of the Act in light of
how the service is offered and perceived today, as well as the factual
and technical realities of how BIAS functions. Classifying BIAS as a
telecommunications service also accords with Commission and court
precedent and is fully and sufficiently justified under the
Commission's longstanding authority and responsibility to classify
services subject to the Commission's jurisdiction, as necessary. We
also ensure that consumers receive the same protections when using
fixed and mobile BIAS by reclassifying mobile BIAS as a commercial
mobile service.
A. Reclassification Enhances the Commission's Ability To Fulfill Key
Public Interest Obligations and Objectives
2. As the record overwhelmingly demonstrates, BIAS connections are
absolutely essential to modern day life, facilitating employment,
education, healthcare, commerce, community-building, communication, and
free expression. The ``forced digitization'' of the COVID-19 pandemic
served to underscore the importance of BIAS connections in society as
essential activities moved online, and the increased importance of BIAS
connections has only persisted in the wake of the pandemic. It has
therefore never been more important that the Commission have both the
necessary authority to oversee this essential service to protect
consumers, strengthen national security, and support public safety, and
the full complement of tools to facilitate access to BIAS.
3. While our conclusion that classifying BIAS as a
telecommunications service represents the best reading of the Act is
itself sufficient grounds for our decision, we separately conclude that
important policy considerations also support this determination. In
particular, our reclassification decision will ensure the Commission
can fulfill statutory obligations and policy objectives to ensure
internet openness, defend national security, promote cybersecurity,
safeguard public safety, monitor network resiliency and reliability,
protect consumer privacy and data security, support consumer access to
BIAS, and improve disability access. As such, these policy obligations
and objectives, each independently and collectively, support the
reclassification of BIAS as a telecommunications service. We therefore
reject arguments that we should address other issues instead of
reclassifying BIAS, particularly since reclassification will enhance
the Commission's ability to address many of the issues commenters
raise.
1. Ensuring Internet Openness
4. We find that reclassification of BIAS as a telecommunications
service enables the Commission to more effectively safeguard the open
internet. In addition to protecting free expression, an open internet
encourages competition and innovation, and is critical to public
safety. As we explain below, we find that a safe, secure, and open
internet is too important to consumers and innovators to leave without
the protection of Federal regulatory oversight.
5. Upon this document's reclassification of BIAS as a Title II
telecommunications service, we rely on our authority in sections 201
and 202 of the Act, along with the related enforcement authorities of
sections 206, 207, 208, 209, 216, and 217, for the open internet rules
we adopt in the Declaratory Ruling, Order, Report and Order, and Order
(Order) to address practices that are unjust, unreasonable, or
unreasonably discriminatory. Specifically, we reinstate rules that
prohibit BIAS providers from blocking or throttling the information
transmitted over their networks or engaging in paid or affiliated
prioritization arrangements, and reinstate a general conduct standard
that prohibits practices that cause unreasonable interference or
unreasonable disadvantage to consumers or edge providers. As discussed
more fully below, these rules, in concert with strong transparency
requirements, establish clear standards for BIAS providers to maintain
internet openness and give the Commission a solid basis on which to
take enforcement actions against conduct that prevents consumers from
fully accessing all of the critical services available through the
internet. The reclassification also enables the Commission to establish
a nationwide framework of open internet rules for BIAS providers and
thereby exercise our authority to preempt any state or local measures
that interfere or are incompatible with the Federal regulatory
framework we establish in the Order, while at the same time ensuring
that all consumers are protected from conduct harmful to internet
openness.
2. Defending National Security and Law Enforcement
6. The reclassification of BIAS enhances the Commission's ability
to protect the Nation's communications networks from entities that pose
threats to national security and law enforcement. The RIF Order's
classification of BIAS as an information service under Title I raised
concerns about the Commission's authority to take certain regulatory
actions to address risks to BIAS providers and vulnerabilities in
broadband networks. As the National Telecommunications and Information
Administration (NTIA) highlights, ``the Commission has encountered
challenges that have hampered its ability to fully protect the public
from serious national security threats.'' For example, NTIA describes
cases where the Commission identified such threats and revoked the
authority of certain foreign-owned adversarial service providers to
provide Title II telecommunications services (including ``traditional
telephony'') in the United States pursuant to its section 214
authority, but was not able to stop them from providing BIAS or other
internet-based services that were then classified as Title I services.
Classifying BIAS under Title II alleviates those concerns, restoring a
broader range of regulatory tools and enhancing the Commission's
jurisdiction to cover broadband services, providers, and networks. We
also find that reclassification will enable the
[[Page 45406]]
Commission to make more significant national security contributions as
we continue our longstanding coordination with our Federal partners.
7. We find that reclassification will significantly bolster the
Commission's ability to carry out its statutory responsibilities to
safeguard national security and law enforcement. Congress created the
Commission, among other reasons, ``for the purpose of the national
defense.'' The Commission's national security responsibilities are well
established. Presidential Policy Directive 21 (PPD-21) describes the
Commission's roles as including ``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 President's recent National Security Memorandum, NSM-22,
recognized the Commission's role in securing critical infrastructure:
``The Federal Communications Commission will, to the extent permitted
by law and in coordination with DHS and other Federal departments and
agencies: (1) identify and prioritize communications infrastructure by
collecting information regarding communications networks; (2) assess
communications sector risks and work to mitigate those risks by
requiring, as appropriate, regulated entities to take specific actions
to protect communications networks and infrastructure; and (3)
collaborate with communications sector industry members, foreign
governments, international organizations, and other stakeholders to
identify best practices and impose corresponding regulations.''
8. There can be no question about the importance to our national
security of maintaining the integrity of our critical infrastructure,
including communications networks. As PPD-21 explains:
The Nation's critical infrastructure provides the essential
services that underpin American society. Proactive and coordinated
efforts are necessary to strengthen and maintain secure,
functioning, and resilient critical infrastructure--including
assets, networks, and systems--that are vital to public confidence
and the Nation's safety, prosperity, and well-being . . . . The
Federal Government also has a responsibility to strengthen the
security and resilience of its own critical infrastructure, for the
continuity of national essential functions, and to organize itself
to partner effectively with and add value to the security and
resilience efforts of critical infrastructure owners and operators .
. . . It is the policy of the United States to strengthen the
security and resilience of its critical infrastructure against both
physical and cyber threats.
Developments in recent years have only highlighted national
security concerns arising in connection with the U.S. communications
sector. These security threats also impact BIAS providers and broadband
networks. PPD-21 recognizes that ``communications systems [are]
uniquely critical due to the enabling functions they provide across all
critical infrastructure sectors,'' which highlights the importance of
protecting communications infrastructure--including broadband networks.
Disruptions of communications can easily have significant cascading
effects on other critical infrastructure sectors that rely on
communications. The PPD-21 states, ``U.S. efforts shall address the
security and resilience of critical infrastructure in an integrated,
holistic manner to reflect this infrastructure's interconnectedness and
interdependency. This directive also identifies energy and
communications systems as uniquely critical due to the enabling
functions they provide across all critical infrastructure sectors.'' We
find that reclassification of BIAS under Title II will enable the
Commission to more fully utilize its regulatory authority and rely on
its subject matter expertise and operational capabilities to address
these concerns and strengthen the security posture of the United
States. As NTIA explains, the ``lightning-fast evolutions of our
communications technologies and our growing dependence on these
offerings necessitate a whole-of-government approach to security that
engages all available federal government resources.''
9. The Commission has on multiple occasions carried out its
responsibilities to protect the Nation's communications networks from
threats to national security and law enforcement by taking regulatory
actions under Title II regarding the provision of traditional
telecommunications services, including voice. For example, the
Commission denied an application for international section 214
authority and revoked the section 214 authority of, certain entities
that are majority-owned and controlled by the Chinese government, based
on recommendations and comments from interested Executive Branch
agencies regarding evolving national security and law enforcement
concerns. In the China Mobile USA Order, 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 found that these entities are subject to
exploitation, influence, and control by the Chinese government, and
that mitigation would not address the national security and law
enforcement concerns. 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
also found that the significant national security and law enforcement
risks associated with those entities' retention of their section 214
authority ``pose a clear and imminent threat to the security of the
United States.'' More recently, the Commission adopted the Evolving
Risks Notice of Proposed Rulemaking (NPRM) (88 FR 50486 (Aug. 1,
2023)), which, among other things, proposed rules that would require
carriers to renew, every 10 years, their international section 214
authority. In the alternative, the Commission sought comment on
adopting rules that would require all international section 214
authorization holders to periodically update information enabling the
Commission to review the public interest and national security
implications of those authorizations based on that updated information.
As stated in the Evolving Risks NPRM, the overarching objective of that
proceeding is to adopt rule changes ``that will enable the Commission,
in close collaboration with relevant Executive Branch agencies, to
better protect telecommunications services and infrastructure in the
United States in light of evolving national security, law enforcement,
foreign policy, and trade policy risks.''
10. The reclassification of BIAS as a Title II service, and our
decision below to decline to forbear from the entry certification
requirements of section 214, will enable the Commission to exercise its
section 214 authority with respect to BIAS providers, and will enhance
the Commission's ability to protect the Nation's communications
networks from entities that pose threats to national security and law
enforcement. Section 214(a) of the Act prohibits any carrier from
constructing, acquiring, or operating any line, and from engaging in
transmission through any such line, without first obtaining a
certificate from the Commission ``that the present or future public
convenience and necessity require or will require the construction, or
operation, or construction and operation, of such . . . line . . . .''
The Supreme Court has determined that the Commission has
[[Page 45407]]
considerable discretion in deciding how to make its section 214 public
interest findings. As we discuss elsewhere, while we grant blanket
section 214 authority for the provision of BIAS to all current and
future BIAS providers, with exceptions, this grant of blanket authority
is subject to the Commission's reserved power to revoke such authority,
consistent with established statutory directives and longstanding
Commission determinations with respect to section 214 authorizations.
The Commission has explained that it grants blanket section 214
authority, rather than forbearing from application or enforcement of
section 214 entirely, in order to remove barriers to entry without
relinquishing its ability to protect consumers and the public interest
by withdrawing such grants on an individual basis. And we find that the
Commission's determinations, based on thorough record development, in
the denial and revocation actions discussed below, in which the
Commission extensively evaluated national security and law enforcement
considerations associated with those entities, support our decision to
exclude from this blanket section 214 authority for the provision of
BIAS those same entities whose application for international section
214 authority was previously denied or whose domestic and international
section 214 authority was previously revoked by the Commission because
of national security and law enforcement concerns. As discussed below,
we find that excluding those entities and their current and future
affiliates and subsidiaries from blanket section 214 authority for the
provision of BIAS is warranted based on the Commission's determinations
in those proceedings that the present and future public interest,
convenience, and necessity would no longer be served by the retention
of those entities' section 214 authority, or that the public interest
would not be served by the grant of international section 214
authority. The Commission's actions in those proceedings were based on
recommendations and comments regarding evolving national security and
law enforcement concerns from Executive Branch agencies, including from
Members of, or Advisors to, the Committee for the Assessment of Foreign
Participation in the U.S. Telecommunications Sector (Committee) created
pursuant to Executive Order 13913. Our action in the Order will enable
the Commission to use its section 214 authority to address threats to
communications networks, working cooperatively with our Federal
partners and leveraging all investigative tools at our disposal.
11. Reclassification will also enhance the Commission's ability to
obtain information from BIAS providers that will enable the Commission
to assess national security risks, through reliance on section 214 of
the Act, along with sections 201, 202, 218, 219, and 220. The
Commission relies on sections 201 and 202 of the Act, and section 706
of the 1996 Act, for its authority to collect information.
Additionally, section 218 of the Act authorizes the Commission to seek
``full and complete information necessary to enable the Commission to
perform the duties and carry out the objects for which it was
created.'' Section 219 of the Act provides that ``[t]he Commission is
authorized to require annual reports from all carriers subject to this
chapter, and from persons directly or indirectly controlling or
controlled by, or under direct or indirect common control with, any
such carrier, to prescribe the manner in which such reports shall be
made, and to require from such persons specific answers to all
questions upon which the Commission may need information.'' Section
220(c) of the Act provides that ``[t]he Commission shall at all times
have access to and the right of inspection and examination of all
accounts, records, and memoranda, including all documents, papers, and
correspondence now or hereafter existing, and kept or required to be
kept by such carriers, and the provisions of this section.'' As one
example, in the Evolving Risks Order (88 FR 85514 (Dec. 8, 2023)), the
Commission adopted a one-time collection of foreign ownership
information from international section 214 authorization holders,
pursuant to sections 218 and 219 of the Act, among other statutory
provisions. Reclassification grants the Commission additional authority
to develop information collection requirements pursuant to applicable
provisions under Title II with regard to BIAS providers.
12. We anticipate as well that Title II authority, such as that
provided in section 201 of the Act, will be important in addressing
national security and law enforcement concerns involving internet
Points of Presence (PoPs), which are usually located within data
centers, as those relate to the provision of BIAS. Today, internet
service providers (ISPs) provide BIAS through PoPs. There are serious
national security and law enforcement risks associated with PoPs that
are owned or operated by entities that present threats to national
security and law enforcement interests and potential harms related to
the services provided by such entities. For instance, in the China
Telecom Americas Order on Revocation and Termination, the Commission
addressed concerns that China Telecom (Americas) Corporation's (CTA)
PoPs in the United States ``are highly relevant to the national
security and law enforcement risks associated with CTA'' and that
``CTA's PoPs in the United States provide CTA with the capability to
misroute traffic and, in so doing, access and/or manipulate that
traffic.'' The Commission also stated that ``CTA, like any similarly
situated provider, can have both physical and remote access to its
customers' equipment needed to provide such services,'' and ``[t]his
physical access to customers' equipment would allow CTA to monitor and
record sensitive information.'' The Commission concluded that CTA's
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.
In the China Telecom Americas Order on Revocation and Termination, the
Commission stated that ``[i]n cases where [China Telecom Americas'
(CTA's)] PoPs reside in IX points, CTA can potentially access and/or
manipulate data where it is on the preferred path for U.S. customer
traffic, through its services provided pursuant to section 214
authority and those services not authorized under section 214
authority.'' The Commission also noted that ``[t]he Executive Branch
agencies refer to public reports that CTA's network misrouted large
amounts of information and communications traffic over long periods,
often several months, sometimes involving U.S. government traffic.''
Notably, CTA's website indicates that the company operates 23 PoPs in
the United States and offers a number of services that may be available
in the United States, including colocation, broadband, internet access,
IP transit, and data center services. We conclude that the same
national security and law enforcement concerns identified in that
revocation proceeding are at least as likely to be present in the
context of BIAS offerings when used to route or exchange BIAS traffic.
In the China
[[Page 45408]]
Telecom Americas Order on Revocation and Termination, the Commission
concluded that CTA's 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.'' We expect that reclassification of BIAS
under Title II will enable the Commission to exercise authority when
necessary to prohibit a BIAS provider from exchanging internet traffic
with third parties that present threats to U.S. national security and
law enforcement, such as CTA.
13. This document's reclassification decision also will provide the
Commission with broader authority under Title II to safeguard BIAS
providers, networks, and infrastructure from equipment and services
that pose national security threats. The Commission has undertaken
significant efforts to improve supply chain security 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.
In particular, the Commission has taken action to: prohibit 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; prohibit 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; create and maintain a list
of communications equipment and services that pose an unacceptable risk
to the national security (``covered equipment and services'');
administer 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 prohibit the authorization of
equipment that poses a threat and the marketing and importation of such
equipment in the United States. Reclassification furthers these efforts
by enhancing the Commission's ability to address issues raised by the
use in our networks of equipment and services that pose a threat to
national security and law enforcement. Notably, the Commission stated
that the definition of ``provider of advanced communication services''
for purposes of the Reimbursement Program did not limit program
eligibility to providers who offer service to end users, and included
intermediate providers that carry traffic for other carriers only and
do not originate or terminate traffic.
14. We are unpersuaded by commenters who argue that Title II
classification is unjustified for national security purposes because
they question this policy rationale, argue that market forces are
sufficient to address national security risks, or contend that
potential national security regulations under Title II would be costly
or burdensome for BIAS providers. The Commission's national security
concerns are not new. As evidenced by the discussion above, the
Commission has engaged in numerous and ongoing actions to address these
risks. The Nation's communications networks are critical
infrastructure, and therefore too important to leave entirely to market
forces that may sometimes, but not always, align with necessary
national security measures. Arguments regarding costs and burdens are
unpersuasive given that, at this point, they represent only speculation
about hypothetical costs and burdens. To the extent there are costs and
burdens associated with any ultimate action the Commission may
undertake, we anticipate that the benefits to national security will
outweigh those costs.
15. We also disagree with those commenters that reject the national
security justification for reclassification on the grounds that there
are no gaps that need to be filled or problems that need to be solved
by the Commission, that argue that the Commission has a marginal role
in protecting national security, or that contend Commission action
would undermine the existing whole-of-government national security
approach. These commenters fail to recognize, as noted above, that
Congress made clear, when creating the Commission, that one of its
enumerated purposes was to further the ``national defense.''
Additionally, these commenters ignore the Commission's significant
contributions to the whole-of-government approach to national security.
In addition to the regulatory actions discussed above, the Commission
is actively engaged in several Federal interagency working groups and
policy committees that address a diverse range of national security
topics, including cybersecurity, critical infrastructure resilience,
emergency preparedness and response, supply chain risk management, and
space systems cybersecurity. Commission staff receive classified
briefings from the Intelligence Community on threats to the
communications sector, exchange relevant information with Federal
partners, and coordinate with law enforcement agencies to support
various national security initiatives. The Commission also supports
National Special Security Events (NSSE) and Security Event Assessment
Rating (SEAR) 1 events and conducts investigations to determine if
communications are being transmitted lawfully, if spectrum is being
used appropriately, or if radio-frequency devices are authorized for
operation. As a result of the Commission's collaborative efforts, we
have learned that there are segments of the communications sector that
are not subject to sufficient Federal regulatory oversight, including
BIAS, due to the RIF Order's misclassification of the service in 2017.
This lack of sufficient oversight allows security vulnerabilities to go
undiscovered--and unaddressed--which can produce negative consequences
for the communications sector, as well as other critical infrastructure
sectors. As articulated above, reclassification directly supports the
Commission's role in cross-government efforts and helps fill gaps in
oversight by enabling the Commission to take regulatory actions to
address national security risks.
16. We are also unpersuaded by arguments that reclassification is
unjustified because we can address certain harms without such change.
Some commenters argue that it would be sufficient to prevent carriers
already subject to Title II from interconnecting with any entities that
pose national security risks, whether or not those entities are
themselves subject to Title II. We find that merely taking this action
would fall far short of what is necessary to address our national
security concerns, especially given the vastly diminished role of Title
II voice and other traditional telecommunications services in today's
communications marketplace. A prohibition on only regulated carriers--
meaning those currently subject to Title II--from interconnecting with
entities that pose a national security threat would not reach
[[Page 45409]]
providers of BIAS without reclassification. We find that it is instead
necessary to directly address the national security risks associated
with the provision of BIAS with the enhanced authorities available
under Title II. The reclassification of BIAS is an important step
toward closing the national security loopholes that exist within the
communications sector, especially in broadband networks.
17. Finally, we reject arguments of commenters that oppose
reclassification as unnecessary because the Commission's existing
authority is sufficient to address national security concerns for which
Congress has authorized the Commission to act; because the Commission
does not have statutory authority to address national security concerns
involving BIAS, broadband transmission services, or certain network
infrastructure; or because Title II does not provide the Commission
with authority to address national security. The Commission relies on
multiple statutory provisions when taking action to protect national
security, but Title II of the Communications Act includes some of the
most important authorities and vests the Commission with a broad grant
of rulemaking authority to ``prescribe such rules and regulations as
may be necessary in the public interest to carry out the provisions of
this chapter.'' Indeed, we have articulated several sources of
authority above. As we do not adopt any new national-security-focused
rules in the Order, we need not articulate with specificity each Title
II provision that would provide a source of authority for potential
action that the Commission may take in the future. Similarly, we are
not persuaded that using Title II authority for national security
purposes would violate Article II of the Constitution. As the U.S.
Court of Appeals for the Fifth Circuit recently held, the Commission's
exercise of authority to address national security threats to
communications networks does not violate the separation of powers or
infringe upon the President's constitutional authority to conduct
foreign affairs.
3. Promoting Cybersecurity
18. As with national security, the Commission has an important role
in addressing cybersecurity in communications networks that is inherent
in its establishment ``for the purpose of the national defense.'' The
National Cybersecurity Strategy highlights the importance of protecting
critical infrastructure as more of our ``essential systems'' move
online. The expanding cyber threat landscape is ``making cyberattacks
inherently more destructive and impactful to our daily lives.'' This
trend is especially problematic because ``malicious cyber activity has
evolved from nuisance defacement, to espionage and intellectual
property theft, to damaging attacks against critical infrastructure, to
ransomware attacks and cyber-enabled influence campaigns.'' Further,
``offensive hacking tools and services, including foreign commercial
spyware, are now widely accessible . . . [to] organized criminal
syndicates.'' In addition, ``China, Russia, Iran, North Korea, and
other autocratic states . . . are aggressively using advanced cyber
capabilities'' to pursue economic and military objectives. These
malicious cyber activities threaten ``the national security, public
safety, and economic prosperity of the United States and its allies and
partners.''
19. The communications sector is squarely in the crosshairs of
malicious cyber actors, who have targeted communications providers with
ransomware attacks and have exploited vulnerabilities in communications
networks to carry out cyberattacks against other critical
infrastructure. For example, the 2023 Annual Threat Assessment of the
U.S. Intelligence Community highlights the cyber threats to U.S.
communications networks and states that ``China's cyber espionage
operations have included compromising telecommunications firms.'' More
recently, Federal Bureau of Investigation (FBI) Director Christopher
Wray highlighted ``China's increasing buildout of offensive weapons
within our critical infrastructure,'' which has enabled ``persistent
PRC access'' to U.S. ``critical telecommunications, energy, water, and
other infrastructure.''
20. The Commission actively supports the U.S. Government's efforts
to protect critical infrastructure by participating in cybersecurity
planning, coordination, and response activities. However, the
classification of BIAS as a Title I information service has limited the
regulatory actions that the Commission could take to address cyber
incidents impacting some aspects of the communications sector, as well
as other critical infrastructure sectors. This is not a hypothetical
concern. As NTIA states on behalf of the Executive Branch,
``[r]eclassifying BIAS is necessary to ensure that the Commission has
the authority it needs to advance national security objectives.'' In
recent years, Federal agencies have requested the Commission's
assistance with mitigating specific risks and vulnerabilities in
broadband networks that foreign adversaries could exploit to carry out
cyberattacks against the United States. The lack of Title II authority
over BIAS has essentially precluded the Commission from taking
regulatory action to directly address these concerns. We note, by way
of example, recent reports of efforts of China-based hackers to target
Philippines government officials by carrying out cyberattacks over
broadband networks in that country. We find that reclassifying BIAS as
a Title II service will help to fill this gap by enhancing the
Commission's ability to protect U.S. communications networks and
infrastructure from cyberattacks and to ensure that communications
devices and equipment do not pose security risks to other critical
infrastructure sectors.
21. The reclassification of BIAS significantly bolsters the
Commission's existing authority to take regulatory actions to address
cybersecurity risks and vulnerabilities in broadband networks. We agree
with NTIA that reclassification will enable the Commission to better
``protect our networks from malicious actors . . . [by] leverag[ing]
the appropriate tools at its disposal, including the relevant Title II
provisions.'' We agree with commenters that reclassification ``provides
multiple new authorities for the Commission to engage on
cybersecurity'' and take regulatory actions to ``study cybersecurity
needs and impose minimum standards on BIAS providers.'' For example,
the Commission could build on existing efforts to require BIAS
providers to implement cybersecurity plans and risk management plans to
protect their networks from malicious cyber activity. This enhanced
authority over BIAS could also allow the Commission to obtain greater
situational awareness by working in coordination on cyber incident
reporting with the Cybersecurity & Infrastructure Security Agency
(CISA) as it implements the Cyber Incident Reporting for Critical
Infrastructure Act of 2022 (CIRCIA). It also provides the Commission
with additional regulatory tools to ensure network and service
reliability and better support effective 911 and emergency preparedness
and response efforts.
22. Reclassification also places the Commission in a stronger
position to address 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.''
For example, the Commission could
[[Page 45410]]
consider requiring service providers to deploy solutions to address BGP
vulnerabilities, such as BGP hijacks. The agency could also consider
establishing cybersecurity requirements for BGP, including ``security
features to ensure trust in the information that it is used to
exchange,'' which could prevent bad actors from ``deliberately
falsify[ing] BGP reachability information to redirect traffic to itself
or through a specific third-party network, and prevent that traffic
from reaching its intended recipient.'' We note, however, that this
filing does not oppose the reclassification of BIAS under Title II, the
issue being addressed in the Order. Similarly, the Commission could
more effectively address security threats related to the Domain Name
System (DNS), which enables domain names to resolve to the correct IP
addresses, and other naming protocols when used by BIAS providers to
facilitate the operation of BIAS.
23. Some commenters argue that reclassification is unnecessary
because the Commission's existing authority is sufficient to address
cybersecurity risks in areas where Congress has authorized the
Commission to act. Other commenters argue that the classification of
BIAS is irrelevant because the Commission does not have statutory
authority to address cybersecurity matters. But it is well established
that the Commission may--indeed must--take security and public safety
considerations into account in its public interest determinations under
Title II. We disagree with these commenters because the classification
of BIAS under Title I created a loophole that largely precluded the
Commission from taking regulatory actions to address cyber risks to
BIAS providers and vulnerabilities in broadband networks. For example,
under the Title I classification, the Commission has limited authority
to require providers of non-Title II services (e.g., BIAS providers) to
adopt cybersecurity standards or performance goals, report information
about cyber incidents, or take defensive measures to protect
communications networks and critical infrastructure. The
reclassification of BIAS under Title II allows the Commission to use a
broader range of regulatory tools by reestablishing the Commission's
legal jurisdiction over broadband services, providers, and networks.
This change is necessary to ensure the Commission can effectively
address the cyber threats to the communications sector.
24. We also disagree with those commenters that argue that the
Commission should not take action because it lacks the expertise and
resources to implement a Title II regulatory regime in the area of
cybersecurity and because other agencies are better equipped to address
cybersecurity risks and vulnerabilities. For example, Verizon points
out that CISA is ``the federal leader for cyber and physical
infrastructure security'' and claims that the Commission plays ``only a
supporting role.'' NCTA--The Internet & Television Association (NCTA)
agrees, based on the fact that CISA ``issue[s] administrative subpoenas
to critical infrastructure entities, which includes broadband
providers, to obtain information necessary to identify and notify
entities of vulnerabilities in their system.'' We recognize and
appreciate CISA's leadership in protecting critical infrastructure--
including communications networks--from malicious cyber activity. The
Commission works closely with CISA and other Federal agencies in a
collaborative manner to address risks and vulnerabilities impacting the
communications sector. Chairwoman Rosenworcel currently serves as Chair
of the Cybersecurity Forum for Independent and Executive Branch
Regulators, ``a federal interagency group that shares information and
expertise to enhance the cybersecurity of America's critical
infrastructure.'' Further, the Commission is the regulatory agency for
communications and, as such, has access to regulatory authorities and
investigative tools that Congress has not granted to other agencies.
For example, the Commission recently adopted a cybersecurity labeling
program for Internet of Things (IoT) devices and products, and proposed
a pilot program to help schools and libraries improve their
cybersecurity efforts through the USF. In addition, the Commission
regularly investigates cyber intrusions and hacks related to the breach
of regulatorily protected consumer data in the possession of common
carriers, cable providers, and satellite providers. For example, cyber
breaches may involve unauthorized access to personally identifiable
information (PII) or customer proprietary network information (CPNI).
Likewise, our data protection investigations frequently involve
investigating and assessing whether the regulated entities had
reasonable cybersecurity protections in place to protect the networks
on which sensitive data are housed. The reclassification of BIAS will
enable the Commission to more effectively fulfill its responsibilities,
including those identified in PPD-21, within the existing frameworks
that support the whole-of-government approach to cybersecurity.
25. Even though the Commission, under Title II, may not be able to
address all significant cyber vulnerabilities, we find that the
availability of that authority meaningfully enhances our ability to
address significant cybersecurity threats. Given the interconnected
nature of communications networks, any efforts to reduce the number of
vulnerabilities and threat vectors that can be targeted by malicious
cyber actors could provide substantial benefits to the larger
communications sector. A recent cyberattack by Russian hackers against
Kyivstar, Ukraine's largest telecommunications provider, ``knocked out
services'' for 24 million users and ``completely destroyed the core''
of the company's network. This incident demonstrates how cyberattacks
targeting communications service providers--including BIAS providers--
can have disastrous impacts by damaging network infrastructure and
causing widespread service outages. The Electronic Privacy Information
Center (EPIC) asserts that ``immediate regulatory action must be taken
to compel ISPs to shore up their cybersecurity practices to better
protect consumers,'' and argues that Title II reclassification of BIAS
would empower the Commission to take further action. We agree with EPIC
and conclude that reclassification enhances the Commission's ability to
require BIAS providers to implement cybersecurity practices and take
other actions to protect the confidentiality and integrity of
information on the traffic that [each provider] stores or transmits.
26. Similar to certain arguments made opposing reclassification for
national security purposes, commenters opposing reclassification for
cybersecurity purposes argue that: the Commission has adequate
authority to address cybersecurity issues under Title I;
reclassification will be costly, burdensome, and too rigid for a
dynamic threat landscape; and industry already addresses cybersecurity
risks without regulatory mandates. We find that the Commission has an
essential role in promoting measures that ``currently seem to best
protect consumers from breaches and other cyber incidents.'' As
described above, and consistent with our conclusions on national
security matters generally, reclassification will provide additional
authority to act when necessary and in coordination with our Federal
partners to address cybersecurity in the communications sector.
Although the adoption of specific cybersecurity
[[Page 45411]]
requirements is beyond the scope of this proceeding, we intend for any
future proposed action to provide regulatory flexibility, ``leverage
existing cybersecurity frameworks,'' encourage ``public-private
collaboration,'' and be designed to minimize the ``cost of
implementation.''
4. Safeguarding Public Safety
27. Reclassifying BIAS as a telecommunications service enables the
Commission to advance several public safety initiatives. Congress
created the Commission, among other reasons, ``for the purpose of
promoting safety of life and property through the use of wire and radio
communication,'' and as the Commission recognized in the RIF Remand
Order (86 FR 994 (Jan. 7, 2021)), ``[a]dvancing public safety is one of
our fundamental obligations.'' 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.' '' The
Commission's responsibility to address public safety is becoming
increasingly important as the severity and frequency of natural
disasters continue to rise. Reclassification enhances the Commission's
jurisdiction over BIAS providers, which, in combination with our other
statutory authority, will allow us to ensure BIAS meets the needs of
public safety entities and individuals when they use those services for
public safety purposes.
28. Reclassification will empower the Commission to more
effectively support public safety officials' use of BIAS for public
safety purposes. Public safety officials' reliance on broadband service
has become integral to their essential functions and services, even
aside from their use of enterprise-level broadband services, including
how they communicate with each other and how they convey information to
and receive information from the public. Public safety entities and
first responders often rely on retail broadband services to communicate
during emergency situations. Increasingly, public safety entities rely
on BIAS to access various databases, share data with emergency
responders, and stream video into 911 and emergency operations centers.
Public safety officials also rely on BIAS outside the emergency
context, including relying on individuals' residential security systems
that use BIAS and programs that are alternatives to incarceration,
which require individuals to check in with supervising officers
remotely, wear electronic location monitoring devices, or use
continuous alcohol monitoring devices. In addition, public safety
officials 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. For example,
during the recent 911 outage that impacted several western states,
public safety officials used social media ``to inform the public of the
issue and to provide alternate means of contacting emergency
services.'' Santa Clara describes the essential role BIAS also plays in
public safety officials' ability to carry out their daily, non-
emergency functions, including its importance in the functioning of its
emergency communications and operations protocols. Santa Clara also
describes the importance of redundancies in its emergency
communications and operations systems, and that many of these systems
rely on BIAS, outside of its enterprise systems. Public safety entities
benefit as well when they rely on enterprise services, which often flow
over the same facilities as mass-market retail services. For example,
Emergency Services Internet (ESInet) is a managed UP network that is
used for emergency services communications and which may be constructed
from a mix of dedicated and shared facilities. ESInets can be realized
in several ways with one example using the Multi-Protocol Label
Switching (MPLS) standard used by many BIAS and transit providers'
networks for traffic engineering and sharing facilities with other
traffic. Reclassification gives the Commission additional jurisdiction
to advance the existing uses of BIAS to support public safety
operations and communications by, for example, taking regulatory
actions to improve the effectiveness of emergency alerting and 911
communications. Given how crucial BIAS is to the protection of public
safety and that reclassification provides the Commission with the
ability to ensure that BIAS is reliable and secure during emergencies,
we disagree with those commenters who argue that reclassification will
not enhance public safety communications on the basis that public
safety entities heavily rely on enterprise-level dedicated networks
that fall outside of the scope of reclassification.
29. BIAS also plays an increasingly important role in allowing the
public to communicate with first responders during emergency
situations. 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. The Commission has undertaken various efforts in recent years
to improve how the public reaches and shares information with emergency
service providers. Title II classification of BIAS supports these
current and future efforts. For example, reclassification enhances the
Commission's jurisdiction to improve the flow of voice communications,
photos, videos, text messages, real-time text (RTT), and other types of
communications from the public to emergency service providers through
Next Generation 911 or Wi-Fi calling.
30. The public relies on BIAS to easily access public safety
resources and information. Commenters who support reclassification and
petitioners for reconsideration of the RIF Remand Order note that
social media is increasingly used as an important resource by the
public to access information about emergencies and other public safety
incidents. We therefore disagree with commenters who argue that there
is no evidence that the Commission's lack of regulatory authority over
BIAS poses public safety risks. Similar to the arguments made by
commenters who argue that reclassification will not affect
communications networks used by public safety officials, this argument
ignores that both public safety officials and the public increasingly
rely on BIAS. Indeed, BIAS has become for many individuals the primary
way to access critical public safety services, without which there
would be no other mode of communication. Reclassification enables the
Commission to ensure that communications are secure and reliable in
times of emergency. We agree with the Communications Workers of America
(CWA) that ``[w]hile many providers have made strides in improving
service quality and reducing outages, voluntary commitments are clearly
not enough.'' Furthermore, the fact that many states have implemented
their own laws to ensure public safety communications are safeguarded
demonstrates the gap that has existed since the repeal of Title II
classification of BIAS. We observe that the public also relies on BIAS
for public safety communications that occur outside of emergencies,
including for telemedicine; residential safety and security systems;
and in-home
[[Page 45412]]
monitoring of individuals who are elderly, disabled, or otherwise able
to benefit from such services.
31. BIAS is essential 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. For example, the Department of Health and
Human Services recently announced that the 988 Suicide & Crisis
Lifeline will provide direct video calling ASL services for people who
are deaf and hard of hearing, as part of ongoing efforts to expand
accessibility to behavioral health care for underserved communities.
This will allow an ASL user in crisis to communicate directly with a
counselor in ASL. Reclassification enhances our existing authority to
ensure these communications are not interrupted or degraded by, for
example, giving the Commission the jurisdiction necessary to ``develop
minimum standards of service and enforcement mechanisms that affect
people with disabilities.'' Likewise, reclassification ``provide[s] the
FCC with the tools needed, for example, to promote broadband in rural
areas lacking sufficient access to BIAS where there is no substitute
for copper wires which carry 911, closed captioning, and TTY
services.''
32. Reclassification will enhance the Commission's ability to
better protect public safety communications. For example, Title II
positions the Commission to more fully examine and investigate
incidents involving BIAS providers that are alleged to have violated
the Commission's rules, including those against throttling or blocking.
In addition to holding any particular violative action to account,
enforcement proceedings would also enable the Commission to prevent or
mitigate future threats to BIAS by using data and information gathered
as a result of those proceedings. Reclassification will also enable the
Commission to make the Nation's alerting and warning capabilities more
effective and resilient by, for example, adopting rules requiring BIAS
providers to transmit emergency alerts to their subscribers. Further,
given the expanding ways in which individuals and public safety
officials rely on BIAS to keep themselves and their homes safe, Title
II will enable the Commission to ensure that BIAS providers protect and
securely transmit the sensitive information to which they are privy
pursuant to section 222, which requires service providers to protect
customer information. Thus, reclassification enables the Commission to
take a wider range of regulatory actions to ensure the public can
reliably and securely access life-saving public safety resources and
information using BIAS.
33. We find that the ability of the Commission to adopt ex ante
regulations will provide better public safety protections than the ex
post enforcement framework established by the RIF Order. We agree with
Santa Clara and INCOMPAS, which, in their Petitions for Reconsideration
of the RIF Remand Order, criticize the RIF Remand Order's analysis of
the record at that time in light of these observations, including the
RIF Remand Order's minimization of the opportunity for harm to public
safety in the absence of reclassification and the open internet conduct
rules as well as its acceptance of industry's voluntary commitments to
abide by the principles underlying the open internet rules.
Reclassification and the conduct rules enable the Commission ``to deal
with public safety issues before a public safety situation arises--not
afterwards, as the RIF Remand Order suggests,'' and do not force the
Commission to rely on voluntary industry commitments to protect public
safety.
34. Some commenters assert that reclassification will stymie
innovation and reduce incentives for investment, which in turn, does
not serve public safety goals. Both INCOMPAS and Santa Clara petitioned
for reconsideration of the RIF Remand Order in large part on this very
notion, pointing out that the asserted benefits of increased investment
and innovation under Title I was unsupported by the record and that
there was evidence to the contrary. We agree with Public Knowledge in
that ``[n]owhere has the Commission ever found that the nebulous and
unsubstantiated benefits of deregulation outweigh the specific benefits
of ensuring that public safety responders can communicate reliably with
each other and with the public in times of crisis.'' Linking increases
or decreases in investment and innovation with reclassification is not
supported by the available evidence, as we discuss in more detail
below.
5. Monitoring Network Resiliency and Reliability
35. The Commission also plays a critical role in monitoring the
resiliency and reliability of the Nation's communications networks and
helping to ensure that these networks are in fact resilient and
reliable. PPD-21 defines ``resilience'' as ``the ability to prepare for
and adapt to changing conditions and withstand and recover rapidly from
disruptions . . . [it] includes the ability to withstand and recover
from deliberate attacks, accidents, or naturally occurring threats or
incidents.'' The Nation's networks are critical lifelines for those in
need during disasters and other emergency situations. Recent events,
including hurricanes, wildfires, tornadoes, earthquakes, and severe
winter storms, demonstrate how communications infrastructure remains
susceptible to disruption. As broadband services become more
widespread, consumers increasingly rely on these connections. As of
February 2021, Pew Research estimates that 77% of adults in the United
States have high-speed broadband service at home. Smartphone ownership
among adults in the US is now estimated to be at 85%. The Commission
has taken actions consistent with its existing authority to improve the
reliability and resiliency of the Nation's communications networks so
that the public can communicate, especially during emergencies.
However, those efforts have had to largely focus on the networks'
provision of voice telephony under Title II. This document's action to
reclassify BIAS under Title II will enable the Commission to build upon
these efforts by taking more effective regulatory actions to protect
the resiliency and reliability of our broadband networks and
infrastructure.
36. In particular, the Commission plays a vital role in ensuring
that the Nation's communications networks are resilient and reliable.
For example, the Commission ``monitors and analyzes communications
network outages[,] . . . [takes actions] to help prevent and mitigate
outages, and where necessary, assist[s] response and recovery
activities.'' During emergencies, the Commission ``collects information
on the operational status of communications infrastructure to support
government disaster assistance efforts and to monitor restoration and
recovery.'' One of the principal benefits of reclassification is to
enable all public safety officials to better assess the operational
status of broadband networks for dissemination of emergency information
and/or to better assess where support is needed. Under the Commission's
Network Outage Reporting System (NORS), qualifying service providers
are required to report to the Commission network outages that satisfy
certain criteria.
37. As Free Press points out, ``because NORS is limited to voice
service outages, `the Commission has historically lacked reliable
outage information for today's modern,
[[Page 45413]]
essential broadband networks.' '' Reclassification also enhances the
agency's ability to gain better visibility over the performance of
broadband networks and also to completely and accurately determine the
scope and causes of outages to these networks. Closing this reporting
gap for outages could afford the Commission and public safety officials
with more consistent and reliable data to better track changes in
network reliability, identify trends, pinpoint possible improvements
and best practices, and disseminate actionable information. New outage
reporting requirements for BIAS providers could also provide the
Commission with better situational awareness for major internet outages
affecting first responders, 911 services, and impacted populations that
are not currently captured by NORS data. Finally, reclassification
supports the Commission's authority to expand the scope of NORS by
requiring BIAS providers, like Title II-regulated voice service
providers, 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.
38. The Commission also ``oversees and monitors industry efforts to
strengthen network resiliency,'' including through the recently adopted
Mandatory Disaster Response Initiative. Moreover, the Commission
adopted new rules, ``to require enumerated service providers (cable
communications, wireline, wireless, and interconnected Voice over
Internet Protocol (VoIP) providers) . . . to report on their
infrastructure status during emergencies and crises in the Disaster
Information Reporting System (DIRS) when activated and to submit a
final report to the Commission within 24 hours of DIRS deactivation.''
Reclassification bolsters the Commission's authority to require BIAS
providers to participate in DIRS. In addition, the Commission endeavors
to ``identify and reduce risks to the reliability of the nation's
communications network[s],'' including by working with the
Communications Security Reliability and Interoperability Council
(CSRIC).
39. Reclassifying BIAS as a telecommunications service will
significantly enhance the Commission's ability to protect critical
infrastructure by taking actions to address threats and vulnerabilities
to communications networks. Public Knowledge agrees that ``[w]ithout
Title II authority, the Commission cannot impose regulations to meet
the need for resilience and reliability as more and more critical
traffic passes through IP networks.'' This change in policy will enable
the Commission to set goals and objectives that foster resilience and
to implement risk management directives on a wider basis in order to
make our broadband networks more resilient and reliable, and thus more
secure. We also disagree with those commenters who argue against
reclassification by contending that outage reporting targeted to BIAS
networks will not serve the public interest or that there are
alternative sources of authority for outage reporting. The Commission
is considering in a separate proceeding the extent to which outage
reporting requirements should be placed on BIAS providers and we
anticipate that having Title II as an additional source of authority
will support that evaluation.
40. We also are not persuaded by other arguments that certain
parties raise regarding network resilience and reliability that are
consistent with their comments regarding national security. Some
commenters argue reclassification is not necessary to ensure the
resiliency and reliability of the Nation's communications networks,
that market-driven incentives motivate broadband providers to make
significant investments to increase the resiliency and reliability of
their networks, or that the Commission has only a limited role to play
on resilience and reliability issues. We agree with AARP and Next
Century Cities, however, that reclassification is necessary to provide
the Commission with sufficient authority to address network resiliency
for critical infrastructure, which is too important for the Commission
to be forced to rely upon mere voluntary measures and alleged market-
driven incentives. As described above, and consistent with our
conclusions on national security matters generally, we find that the
Commission has an essential role on resilience and reliability issues,
working in coordination with its Federal partners. Reclassification
will allow for the direct network monitoring of the Nation's broadband
internet networks and provide a robust regulatory platform so that all
BIAS providers maintain the highest levels of business continuity when
incidents occur. We find that reclassification will support the
Commission's efforts to protect the public by ensuring that more
reliable and resilient networks are in use, including by developing
voluntary frameworks and policies when practical, and compelling
enforceable compliance when needed.
41. Commenters opposing reclassification also argue that under
Title I classification, broadband networks have provided robust
internet service despite unprecedented levels of demand during the
COVID-19 pandemic. We find these arguments unpersuasive. As more
critical functions rely on BIAS, it is imperative for the Commission to
have authority to address resiliency issues involving broadband
networks to the same degree that it has for traditional voice networks.
Further, we disagree with those commenters that contend that these
types of reporting, monitoring, and regulatory requirements would
likely impose significant new costs on BIAS providers and potentially
stifle investment and broadband deployment.
42. In conclusion, the reclassification of BIAS will secure the
Commission's authority to, as necessary, implement requirements for
network upgrades and changes, adopt rules relating to recovery from
network outages, and improve our incident investigation and enforcement
authority to mitigate network threats and vulnerabilities.
Reclassification also enables the Commission to create more stability
and predictability on how providers should address disasters and
emergency situations. Moreover, reclassifying broadband as a
telecommunications service allows the Commission to address
identified--and evolving--threats and vulnerabilities in the BIAS
industry, as some BIAS providers may not have sufficient incentives to
protect the traffic traversing their networks without such regulation.
Thus, reclassification would allow the Commission, for example, to
require BIAS providers to identify and reduce harmful activities
occurring across their infrastructure. These measures will be taken in
support of a whole-of-government approach by taking regulatory actions
to enhance network reliability and resiliency in order to better
protect all of our Nation's networks.
6. Protecting Consumers' Privacy and Data Security
43. We find that classifying BIAS as a telecommunications service
will support the Commission's efforts to protect consumers' privacy and
data security. Section 222 of the Act governs telecommunications
carriers' use, disclosure, and provision of access to information
obtained from their customers, other telecommunication carriers, and
equipment manufacturers. It imposes a general duty on every
telecommunications carrier to protect
[[Page 45414]]
the confidentiality of proprietary information of its customers, other
telecommunication carriers, and equipment manufacturers, and imposes
heightened restrictions on carriers' use, disclosure, or provision of
access to customers' customer proprietary network information (CPNI)--
including customer location information--without consent. CPNI is
defined as ``(A) information that relates to the quantity, technical
configuration, type, destination, location, and amount of use of a
telecommunications service subscribed to by any customer of a
telecommunications carrier, and that is made available to the carrier
by the customer solely by virtue of the carrier-customer relationship;
and (B) information contained in the bills pertaining to telephone
exchange service or telephone toll service received by a customer of a
carrier.''
44. Returning BIAS to its telecommunications service classification
will bring BIAS providers back under the section 222 privacy and data
security framework, restoring those protections for consumers and
yielding substantial public interest benefits. In her separate remarks
on the 2021 Federal Trade Commission (FTC) Staff Report, Chair Lina
Khan noted that the FCC ``has the clearest legal authority and
expertise to fully oversee internet service providers,'' a view
supported by a number of commenters, who assert that the Commission's
specific expertise to regulate privacy matters is needed. We observe
that the Commission's privacy authority under Title II is not limited
to CPNI. Section 222(a) also imposes obligations, which we enforce, on
carriers' practices with regard to protection of non-CPNI customer
proprietary information and personally identifiable information (PII),
and section 201(b)'s prohibition on practices that are unjust or
unreasonable also provides authority over privacy practices. We also
find that because section 222 places an obligation on
telecommunications carriers to protect the confidentiality of the
proprietary information of and relating to other telecommunication
carriers (including resellers) and equipment manufacturers, our
classification of BIAS as a telecommunications service will protect
information concerning entities that interact with BIAS providers.
7. Supporting Access to Broadband Internet Access Service
45. Reclassifying BIAS as a telecommunications service under Title
II will support the Commission's multifaceted efforts to support access
to BIAS in three ways. First, such authority will improve the
Commission's ability to foster investment in and deployment of wireline
and wireless infrastructure and to promote competition for, and access
to, BIAS for consumers by restoring to BIAS-only providers statutory
protections for pole attachments that providers of cable and
telecommunications services receive. Second, reclassification
facilitates our ability to ensure access to BIAS by enabling the
Commission to regulate BIAS-only providers that serve multi-tenant
environments to ensure they do not engage in unfair, unreasonable, and
anticompetitive practices, such as exclusivity contracts. Finally,
authority under Title II will put the Commission on the firmest legal
ground to promote the universal service goals of the Act.
46. Wireline and Wireless Infrastructure. We find that
reclassifying BIAS as a telecommunications service under Title II will
support the Commission's mission to foster investment in and deployment
of wireline and wireless infrastructure and to promote competition and
access to BIAS for consumers. Specifically, we find that the
application of sections 224, 253, and 332 of the Act to BIAS-only
providers will provide equitable rights to those providers and the
tools to enable the Commission to reach its goals, thereby promoting
greater deployment, competition, and availability of both wireline and
wireless BIAS. Furthermore, we find that the RIF Remand Order failed to
adequately address the Mozilla court's concerns regarding the effects
of reclassification on BIAS-only providers.
47. Reclassification of BIAS as a Title II service will ensure that
BIAS-only providers receive the same statutory protections for pole
attachments guaranteed by section 224 of the Act that providers of
cable and telecommunications services receive. Section 224 defines pole
attachments as ``any attachment by a cable television system or
provider of telecommunications service to a pole, duct, conduit, or
right-of-way owned or controlled by a utility.'' It authorizes the
Commission to prescribe rules to ensure that the rates, terms, and
conditions of pole attachments are just and reasonable; requires
utilities to provide nondiscriminatory access to their poles, ducts,
conduits, and rights-of-way to telecommunications carriers and cable
television systems (collectively, attachers); provides procedures for
resolving pole attachment complaints; governs pole attachment rates for
attachers; and allocates make-ready costs among attachers and
utilities. The Act defines a utility as a ``local exchange carrier or
an electric, gas, water, steam, or other public utility, . . . who owns
or controls poles, ducts, conduits, or rights-of-way used, in whole or
in part, for any wire communications.'' However, for purposes of pole
attachments, a utility does not include any railroad, any cooperatively
organized entity, or any entity owned by a Federal or State government.
Section 224 excludes incumbent local exchange carriers (ILECs) from the
meaning of the term ``telecommunications carrier,'' therefore these
entities do not have a mandatory access right under section 224(f)(1).
The Commission has held that when ILECs obtain access to poles, section
224 governs the rates, terms, and conditions of those attachments. The
Act allows utilities that provide electric service to deny access to
their poles, ducts, conduits, or rights-of-way because of
``insufficient capacity and for reasons of safety, reliability and
generally applicable engineering purposes.'' As the Commission noted in
2015, it ``has recognized repeatedly the importance of pole attachments
to the deployment of communications networks'' and therefore has
undertaken a series of reforms to improve access to poles under section
224. The National League of Cities urges us to revisit and overturn our
2018 Wireless Infrastructure Order (83 FR 51867 (Oct. 15, 2018)) and,
until that time, forbear from application of sections 253 and 332(c) to
reclassified BIAS. We agree with the Wireless Infrastructure
Association that the former request is outside the scope of this
proceeding. We decline to forbear from applying section 253 and 332(c)
to BIAS for the reasons we discuss in section IV.B.9. To that end, the
Commission continues to pursue solutions to improve pole access
including, most recently in December 2023, by adopting new rules that,
among other things, speed up the pole attachment dispute resolution
process by establishing a new intra-agency rapid response team, set
forth specific criteria for the response team to use when considering a
complaint, and increase transparency for new broadband buildouts by
requiring disclosure of pole inspection reports during the make-ready
process. Under a Title I classification scheme, BIAS-only providers are
not entitled to any of the current or future benefits the Commission
may enact to facilitate access to broadband infrastructure.
48. Section 253 of the Act provides further protections to
telecommunications companies that,
[[Page 45415]]
through Title II reclassification, will apply to BIAS-only providers.
Specifically, section 253 seeks to further facilitate deployment of
communications services by enabling the Commission (or a court) to
intervene when a State or local regulation or legal requirement ``may
prohibit or have the effect of prohibiting the ability of any entity to
provide any interstate or intrastate telecommunications service.''
Without reclassification, however, BIAS-only providers may not seek the
Commission's intervention under section 253 when State or local
regulations interfere with their network deployment. Moreover, State
and local laws that are exclusively focused on, or exclusively
implicate, the provision of BIAS, do not currently fall within the
ambit of section 253 and thus cannot be the subject of Commission
intervention when prohibiting or having the effect of prohibiting the
provision of BIAS exclusively.
49. In the wireless context, section 332 of the Act protects
regulated entities from State and local regulations that ``unreasonably
discriminate among providers or functionally equivalent services'' or
that ``prohibit or have the effect of prohibiting the provision of
personal wireless service.'' However, because mobile broadband is not
currently classified as a ``commercial mobile service,'' mobile BIAS-
only providers who do not offer additional regulated services are not
covered by section 332. As INCOMPAS notes, it has ``members who are
solely focused on providing broadband services,'' and ``[t]he current
classification of BIAS and mobile broadband as Title I services makes
it difficult for these providers to argue that they are building the
kinds of facilities capable of commingled operation that are covered by
Sections 332 and 253.'' As with sections 224 and 253, without
reclassification, mobile BIAS-only providers would be disadvantaged
compared to their competitors.
50. We find that reclassifying BIAS as a Title II service levels
the playing field by ensuring that BIAS-only providers enjoy the same
regulatory protections--those guaranteed by sections 224, 253, and
332--as their competitors who offered services already classified as
telecommunications services in addition to BIAS prior to our
classification decision in the Order. As the Commission found in 2015,
``[a]ccess to poles and other infrastructure is crucial to the
efficient deployment of communications networks including, and perhaps
especially, new entrants.'' INCOMPAS notes that BIAS providers face
``significant barriers to deploy broadband network infrastructure--
among them access to poles, ducts, and conduit.'' The California Public
Utilities Commission (CPUC) explains further that ``[a]ccess to poles,
conduits, and rights-of-way may affect cost, feasibility, and timing of
constructing and offering broadband services.'' Sections 224, 253, and
332 however, seek to remove these barriers by guaranteeing providers
access to utility poles at just and reasonable rates and by ensuring
that State and local laws do not prohibit deployment. Even WISPA--the
Association for Broadband Without Boundaries (WISPA), which otherwise
opposes our reclassification decision, highlights the benefits of
extending section 224 rights to BIAS-only providers.
51. NCTA argues that restoring section 224 rights will only provide
``illusory'' benefits to BIAS-only providers. We disagree. Under Title
II, BIAS-only providers will be guaranteed access to utility poles at
just and reasonable rates. BIAS-only providers, therefore, will no
longer be forced to negotiate for the right of pole access directly
with each set of pole owners, which will not only ensure they pay the
same rates as their competitors but will also ensure that deployment of
their networks is not unnecessarily bogged down by the negotiation
process. While such benefits may seem ``illusory'' to the competitors
who already enjoy such privileges, we find that eliminating one of the
``significant barriers to deploy[ment] [of] broadband network
infrastructure,'' is in fact a very real benefit for BIAS-only
providers. Indeed, NCTA, who claims that the benefits of pole
attachment rights will prove to be illusory, has consistently taken
issue with the costs of pole attachments, even under the existing
regime, and has regularly supported and championed the Commission's
efforts to reduce the costs and burdens of obtaining pole access.
52. We find that in addition to guaranteed pole attachment rates
and more efficient deployment, Title II reclassification will also
ensure that BIAS-only providers are protected by section 253, which
provides that ``no [s]tate or local statute or regulation, or other
[s]tate or local legal requirement, may prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate or
intrastate telecommunications service.'' Likewise, mobile BIAS-only
providers will receive protection under section 332 which requires
State and local governments to act on ``any request for authorization
to place, construct, or modify personal wireless service facilities
within a reasonable period of time after the request is duly filed with
such government or instrumentality, taking into account the nature and
scope of such request.'' As INCOMPAS notes, ``a reclassification of
BIAS . . . opens an avenue for additional protections for BIAS-only
providers who may need Commission intervention to address state/local
policies that restrict competitive deployment through its oversight for
ensuring competitors can access new geographic markets.'' Under Title
I, BIAS-only providers cannot seek assistance from the Commission if
State or local governments interfere with the deployment of BIAS-only
networks--once again, leaving them worse off than their regulated
competitors. For example, under a Title I regulatory regime, if State
or local permitting processes effectively prohibit the deployment of
BIAS networks, BIAS-only providers cannot raise the issue with the
Commission. In areas where both BIAS-only and providers of comingled
services operate, providers of comingled services may seek a resolution
with the Commission that would resolve the issue for BIAS-only
competitors as well, but BIAS-only providers would be reliant upon
their competitors to bring the action to the Commission in the first
place. But if a State or local legal requirement solely affects BIAS,
even providers that currently offer commingled services lack the
ability under section 253 to challenge it given that section 253 only
applies to those State and local legal requirements that affect the
provisioning of ``telecommunications service.'' Moreover, in any area
where BIAS-only providers are the sole provider of service (or are
seeking to be a provider of service), they would be left without
recourse. We agree with INCOMPAS, which notes that ``reclassification
so that BIAS-only providers receive the same Title II protections as
incumbent telecommunications providers is in the public interest as it
will best ensure that the Communications Act's goal of the Commission
enabling and promoting competition can be fulfilled and that consumers
will benefit from additional choice in the marketplace.'' Therefore, we
find that restoring section 253 rights of BIAS-only providers is not
only equitable, but will help ensure that BIAS-only providers are
adequately protected by the Commission's authority to address State and
local policies that restrict deployment.
53. In the RIF Remand Order, the Commission attempted to downplay
its decision to strip section 224 rights from
[[Page 45416]]
BIAS-only providers by claiming that ``ISPs may gain the status of
telecommunications providers, and thus become eligible for section 224
pole attachment rights.'' Specifically, the Commission suggested that
BIAS-only providers could either alter their business plans to offer
other services that would then qualify them as telecommunications
carriers or enter into partnerships with existing telecommunications
carriers to attain section 224 rights. While it may be true that BIAS-
only providers could alter the business plans or partner with other
regulated entities to ensure they receive equitable pole access, our
regulations should not be designed to stifle innovative offerings
distinct from those currently offered in the marketplace. Furthermore,
each year more and more Americans are opting to forgo these additional
non-BIAS telecommunications services and instead are choosing to have
only a fixed BIAS connection in their homes along with a mobile
connection. INCOMPAS notes that because customers are opting to use
over-the-top video or VoIP services, many of its fixed BIAS members
were losing money on video and voice services and ``have ceased
offering voice and/or video options to their residential customers
given that those customers can choose third-party over-the-top video or
VoIP options for these services.'' Thus, requiring BIAS-only providers
to pursue declining lines of business just to receive the same legal
protections as their competitors makes little sense. And in following
the RIF Remand Order's suggestion that BIAS-only providers could enter
into partnerships with telecommunications carriers to gain pole access,
BIAS-only providers would just swap one barrier to entry (negotiating
directly with pole owners for access) for another (negotiating with a
telecommunications carrier). As a result, the supposed solution the RIF
Order offered up is in fact no solution at all and instead leaves BIAS-
only providers with a different ``competitive bottleneck.'' Moreover,
the RIF Remand Order failed to cite to even one instance of such a
partnership or provide any evidence that such a partnership would even
be economically or practically feasible, only mentioning the
possibility that BIAS-only providers might be able to pursue one. Even
assuming the possibility of such a partnership, unlike with section
224, which ensures pole owners provide access at just and reasonable
rates, there are no legal safeguards to ensure that potential partners
agree to reasonable terms with BIAS-only providers.
54. In addition, we find that the RIF Remand Order erred in
concluding that the ability of states under section 224(c) to establish
their own pole attachment rules in place of the Federal rules (often
referred to as reverse-preemption) minimizes the impact of the loss of
section 224 rights on BIAS-only providers. First, the majority of
jurisdictions have not chosen to reverse-preempt the Commission and
instead have opted to continue to allow the Commission to regulate pole
attachments under section 224. Second, we disagree with the conclusion
in the RIF Remand Order, as well as those commenters who agree with the
conclusion, that ``Title I classification does not impact the 22 states
and the District of Columbia that have chosen to reverse-preempt our
rules.'' An additional state, Florida, has subsequently reverse
preempted the Commission's jurisdiction since the issuance of the RIF
Remand Order. As INCOMPAS notes, some of the jurisdictions that have
reverse-preempted the Commission have simply mirrored the Commission's
rules so that any changes implemented by the Commission are also
directly implemented by the state. For example, Pennsylvania has
reverse-preempted the Commission but chosen to adopt the ``rates, terms
and conditions of access to and use of utility poles, ducts, conduits
and rights-of-way to the full extent provided for in 47 U.S.C. 224 and
47 CFR chapter I, subchapter A, part 1, subpart J (relating to pole
attachment complaint procedures), inclusive of future changes as those
regulations may be amended.'' Therefore, because the Pennsylvania code
reflects the ``rates, terms, and conditions of access to'' poles
adopted by the Commission, reclassifying BIAS as a Title II service
will provide pole access to BIAS-only providers in Pennsylvania even
though Pennsylvania regulates its own poles. The same is true in West
Virginia, another State that has reverse-preempted the Commission,
where the West Virginia Public Service Commission, at the direction of
the State legislature, adopted the FCC's pole attachment regulations in
their entirety, including subsequent modifications, superseded existing
pole attachment regulations that conflicted with Federal regulations,
and otherwise rejected stakeholder requests to alter the Commission's
regulations. Similarly, at least two other jurisdictions, the District
of Columbia and Ohio, have reverse-preempted the Commission but
continue to point to the Commission's regulations for reference. Three
other states seemingly have only partially preempted the Commission's
rules by opting to regulate only the attachments of other public
utilities or cable television providers. In those states, the
Commission's rules will continue to govern the attachments of
telecommunications carriers. Thus, the Commission's pole attachment
rules will continue to play a vital role in several jurisdictions that
have elected to reverse-preempt, or partially reverse-preempt, the
Commission.
55. The RIF Remand Order further posits that ``if a state prefers
to adopt a different regulatory approach, that state has the
opportunity to exercise its authority to expand the reach of government
oversight of pole attachments.'' But, as the CPUC, the Public Utility
Commission for a State which has reverse preempted the Commission,
argues, it is not entirely clear states can grant BIAS-only providers
pole access pursuant to their section 224 reverse-preemption authority
if the Commission itself has specifically chosen to exclude BIAS-only
providers from the purview of Title II, the very source of authority
from which section 224 authority emanates. Thus, under Title I
classification, the right of BIAS-only providers to access poles in
those states that have chosen to self-regulate is subject to
uncertainty; and in the majority of jurisdictions, which are governed
by the Commission's rules, such providers have no right to pole access
at all.
56. Furthermore, as the CPUC and other commenters note, the lack of
clear legal authority to regulate BIAS-only providers presents public
safety issues as states may not be able to enforce safety regulations
on BIAS-only providers that do manage to attach to poles. The CPUC
states, however, that ``reclassifying BIAS as a telecommunications
service would eliminate this potential argument and the commensurate
delay in responding to safety violations.'' We agree and find that, in
addition to the economic benefits of affording section 224 rights to
BIAS-only providers, reclassification will also ensure that the
Commission and State utility commissions have the requisite legal
authority to protect public safety concerns associated with the
deployment of broadband-only infrastructure.
57. We also find to be without merit the arguments of commenters
who echo the Commission's contention in the RIF Remand Order that the
loss of section 224 rights is not a serious issue because the majority
of BIAS providers offer
[[Page 45417]]
comingled services. To be clear, we do not dispute the fact that the
majority of BIAS providers offer at least one Title II-regulated
service in addition to BIAS, as some commenters contend. We believe,
however, that the small number of BIAS-only providers is not due just
to the popularity of other regulated services, but also because BIAS-
only providers, many of which are smaller competitive companies, do not
enjoy the competitive advantages of larger enterprises like many of
their competitors. As a result, competitive bottlenecks and obstacles
to deployment, such as access to poles at just and reasonable rates,
present significant challenges to BIAS-only providers that may make
breaking into markets with large entrenched incumbents next to
impossible. As the CPUC notes, ``[a]ll forms of telecommunications,
including broadband, require access to rights-of-way generally, and
specifically to poles and conduits, which are controlled by incumbent
local exchange carriers and other entities. Access to poles, conduits,
and rights-of-way may affect cost, feasibility, and timing of
constructing and offering broadband services.'' Furthermore, we believe
that the RIF Remand Order completely overlooked the future competitive
realities for BIAS-only providers and the resulting harms that its
decision will yield. As we discussed above, consumers are becoming more
reliant on BIAS and are continually foregoing the purchase of services
offered alongside BIAS (i.e., cable and voice). As a result, there is
no reason to doubt that more and more providers will begin offering
only BIAS and without reclassification would have no rights pursuant to
section 224. Therefore, we find that restoring the section 224 rights
and easing the burdens of pole access is likely to ensure that the
number of BIAS-only providers does not artificially shrink due to
inequitable treatment under the law.
58. Furthermore, we find that equitable regulatory treatment of
BIAS-only providers, particularly with regard to regulations designed
to speed network deployment, will also increase competition, ultimately
benefitting consumers and assisting the Commission's goal of achieving
universal service. We agree with INCOMPAS which states that
``[a]dditional competition is key to tackling our nation's internet
challenges'' and that the Commission must ensure that its policies do
not further entrench large telecommunications carriers, reducing the
viability of smaller, innovative alternative providers and also
reducing the service options available to consumers. USTelecom states
that ``[t]he NPRM cites no evidence that there are broadband-only
providers that could not receive those benefits today or that the
availability of the Broadband Equity, Access, and Deployment funding is
leading to the creation of such providers,'' but INCOMPAS specifically
notes that it ``expect[s] that many entities that will be competing for
BEAD dollars will be BIAS-only'' and states that those entities
``cannot exercise any rights afforded by Title II to speed their
deployment.'' USTelecom further contends that ``there is no record
evidence that Title I classification is preventing [BIAS-only
providers] from obtaining just and reasonable pole attachment rates.''
Even accepting USTelecom's statement as true, it still misses the mark.
Even if BIAS-only providers are somehow able to negotiate directly with
pole owners to ultimately achieve rates that are just and reasonable,
BIAS-only providers must still suffer the costs of securing pole access
through private negotiations, and without any leverage, with each set
of pole owners, unlike their regulated peers who have guaranteed access
rights under section 224. Clearly then, by failing to provide equal
access to the Act's legal protections on a nondiscriminatory basis, the
Title I regime favors large incumbents at the expense of BIAS-only
providers. Because we opt to restore the Title II classification of
BIAS, we find it unnecessary to address commenters who suggest the
Commission can provide similar rights to BIAS-only providers through
other sections of the Communications Act.
59. Multiple Tenant Environments (MTEs). In the 2023 Open Internet
NPRM (88 FR 76048 (Nov. 3, 2023)), we sought comment on how
reclassification of BIAS might impact the Commission's authority to
regulate service providers in MTEs. Specifically, we asked how
reclassification might provide the Commission additional authority to
foster competition and promote consumer choice for those living and
working in MTEs. We conclude now that reclassification of BIAS as a
telecommunications service facilitates these goals by enabling the
Commission to regulate broadband-only providers that serve MTEs and
thereby to end unfair, unreasonable, and anticompetitive practices
facing MTE residents. That is, reclassification would give the
Commission authority to require BIAS-only providers to abide by the
same kinds of rules--including those that prohibit exclusivity
contracts that bar competition outright in MTEs--that other
telecommunications and cable providers must currently follow. Such
rules in turn would secure the same protections for all residents of
MTEs, regardless of the kind of service offered by providers in their
building; reduce regulatory asymmetry between broadband-only providers
and other kinds of providers; and potentially improve competition in
the MTE marketplace.
60. More than 100 million people in the United States live or work
in MTEs, including a disproportionate number of lower-income residents
and members of marginalized communities. The Commission's rules, which
regulate the kinds of agreements service providers may enter into with
MTE owners, currently extend to telecommunications carriers as well as
cable operators and multichannel video programming distributors
(MVPDs). Developed pursuant to congressional direction to protect
consumer choice in emerging communications technologies for residents
of MTEs, these rules include, for example, a prohibition on exclusivity
contracts that grant the provider the sole right to access and offer
service in an MTE.
61. However, these rules do not govern broadband-only providers
today. Although many BIAS providers offer telecommunications, video
programming, and other commingled services that subject them to the
Commission's MTE rules, a provider offering only BIAS exists outside
the scope of its rules. This means that while the Commission can, for
example, impose rules on an entity offering both broadband and
traditional phone service in an MTE, there is uncertainty about whether
and when it could regulate a provider offering only the former. Even if
such a provider entered into an agreement with an MTE owner barring
competitors from the building outright--a type of agreement that the
Commission has long declared anathema to the public interest--the
Commission's rules would not apply and the Commission is not currently
aware of other authority it could rely on to prevent such an agreement.
62. We thus find that reclassification of BIAS as a Title II
service, which would provide us authority to regulate broadband-only
providers, enables the Commission to address these potential regulatory
gaps and ensure that all MTE tenants may benefit from the pro-consumer
MTE rules the Commission has adopted and may adopt in the future as
part of its current open proceeding.
[[Page 45418]]
We therefore agree with Public Knowledge that reclassification would
have many benefits for MTE residents including, among others, greater
competition and innovation in MTEs, lower costs for consumers, and
improved customer service. Reclassification would also create the
potential for parity between BIAS-only and other providers serving
MTEs, as well as protections for BIAS-only providers unable to compete
against those employing anticompetitive practices.
63. We disagree with CTIA--The Wireless Association's (CTIA)
contention, citing the Commission's 2022 MTE Report and Order and
Declaratory Ruling (87 FR 51267 (Aug. 22, 2022)), that reclassification
and regulation of the ``few'' BIAS-only providers in MTEs would
``disregard[ ] the Commission's `incremental approach' in this area,''
and that the Commission offers ``no significant evidence as to why the
Commission should change course now.'' The 2022 MTE Report and Order
and Declaratory Ruling adopted new rules and targeted additional
practices that reduce consumer choice in MTEs. We note that in that
proceeding's record, some commenters urged the Commission to ``subject
broadband-only providers to our rules governing MTE access, citing . .
. potential harms that could result from regulatory asymmetry if [it]
did not.'' The Commission declined to extend its rules to broadband-
only providers at the time, citing its historically incremental
approach to MTE regulation but noting explicitly that it would
``continue to monitor competition in MTEs to determine whether we
should alter the scope of [the] rules.'' However, nothing in the 2022
MTE Report and Order and Declaratory Ruling belies commenters' claims
about the harms arising out of the regulatory asymmetry, which we find
remain valid today. Meanwhile, commenters in opposition to
reclassification fail to raise arguments that justify failing to extend
the benefits of the Commission's rules to MTE residents where a
broadband-only provider offers service to a building.
64. We are also unpersuaded by CTIA's claims that broadband-only
providers are so few in number that it justifies the Commission not
taking any additional action to curb anticompetitive, unfair, and
unreasonable practices by broadband-only providers in MTEs. Even
assuming that CTIA is correct, or that the majority of service
providers offer commingled services, it is unclear whether this will
remain true in the future. And while some commenters claim that the
Commission failed to identify widespread abuses by BIAS-only providers
in the 2023 Open Internet NPRM, others, such as AARP, highlight that
such abuses may indeed be ongoing, pointing to an alleged instance of a
broadband-only provider exploiting its status to enter into an
exclusivity contract. We therefore find that these abuses are not
merely speculative or theoretical, and provide additional support for
the Commission's decision to reclassify BIAS as a Title II service.
65. Some commenters contend that the Commission need not reclassify
BIAS to protect tenants and can instead rely on its ancillary or other
existing authority to address broadband-only providers. Such authority,
however, does not provide the same firm legal footing as Title II and
thus is less likely to offer enduring protections for residents of
MTEs. WISPA, in its comments, expresses concern that reclassification
of BIAS would result in rule protections for over-the-air reception
devices (OTARDs) no longer being available to fixed wireless broadband-
only providers and contends that this will discourage deployment of
broadband in multi-tenant environments, neighborhoods lacking access to
nearby towers, and similar environments. We acknowledge WISPA's
concerns, and we will examine whether to revise Sec. 1.4000(a)(5) in
another proceeding. While classification of BIAS may affect the scope
of services that are covered under the Commission's rules regarding
over-the-air reception devices, classification of BIAS as
telecommunications service may also qualify fixed wireless broadband
services for the protections available under sections 332(c)(7) and
253. Although sections 253 and 332(c)(7) do not apply to restrictions
by private landlords they do provide for Federal preemption of State
and local zoning restrictions that ``prohibit or have the effect of
prohibiting'' ``the ability of any entity to provide any interstate or
intrastate telecommunications service'' and ``the provision of personal
wireless services.''
66. Finally, we disagree with WISPA that any purported benefits of
applying our MTE rules would be outweighed by a slowdown in broadband
investment in MTEs precipitated by the need for BIAS-only providers to
``assess the impact [reclassification more broadly would have] on their
business plans.'' We find that to the extent our reclassification of
BIAS as a Title II service would cause a BIAS-only provider to re-think
an exclusive contract to serve an MTE or an otherwise anticompetitive
arrangement in an MTE, that would be an additional benefit to
consumers, not a drawback. Moreover, our ability to regulate BIAS-only
providers in MTEs is but one reason moving us to reclassify BIAS as a
Title II service. Thus, the benefits outlined elsewhere in addition to
those detailed here must be considered in the aggregate.
67. Universal Service. Reclassifying BIAS as a telecommunications
service will also promote the universal service goals of section 254 by
enabling more efficient deployment of broadband networks and greater
access to affordable broadband service. In the 2023 Open Internet NPRM,
we asked how reclassification might better enable the Commission to
steward our universal service programs in a way that is responsive to
the communications needs of the modern economy. We specifically sought
comment on how reclassification might strengthen the Commission's
statutory authority to provide BIAS through the USF, eventually allow
broadband-only providers to once again participate in the Lifeline
program, and protect public investment in BIAS access and
affordability. Reclassification enhances the Commission's ability and
flexibility to address affordability and availability issues across the
country, both immediately and in the future. So as to not unnecessarily
disrupt the current marketplace without ample consideration, the
Commission does not designate BIAS as a supported service or extend
eligible telecommunications carrier (ETC) eligibility to BIAS-only
providers at this time. Such action would best be considered in a
future proceeding.
68. Universal Service is the principle that all Americans should
have access to telecommunications services and advanced communications
services at just, reasonable, and affordable rates in all regions of
the Nation. The Commission administers four programs in furtherance of
these principles using contributions from telecommunications carriers
to the USF: the High Cost program, which helps eligible carriers
recover some of the cost of providing access to modern communications
networks to consumers in rural, insular, and high-cost areas; the
Lifeline program, which provides discounted voice service and BIAS
through eligible carriers to qualifying low-income subscribers; the E-
Rate program, which provides discounts to eligible schools, school
districts, and libraries to purchase affordable BIAS; and the Rural
Health Care program, which provides funding to eligible health care
providers to purchase telecommunications and
[[Page 45419]]
broadband services necessary for the provision of health care. All four
USF programs fund BIAS or infrastructure and are able to rely on
statutory authority to do so regardless of BIAS's classification.
Classifying BIAS as a telecommunications service, however, will put the
Commission on the firmest legal ground to promote the universal service
goals of section 254 by enabling the Commission and states to designate
BIAS-only providers as ETCs.
69. The Commission has concluded that section 254(e) of the Act
allows for the use of universal service funds to benefit both the
facilities used to provide supported telecommunications service, and
the supported telecommunications services themselves, which permits the
Commission to provide High Cost and Lifeline program support for non-
telecommunications services offered over networks that also provide
telecommunications services. The Commission currently conditions
receipt of support on the provision of broadband service in funded
networks in 11 of the 15 High Cost program funds, and also supports
broadband through the Lifeline program.
70. The Commission has distinct authority to provide support for
BIAS and connections through the E-Rate and Rural Health Care programs.
Section 254(c)(3) specifies that ``the Commission may designate
additional services for such support mechanisms for schools, libraries,
and health care providers for the purposes of subsection (h).''
Subsection (h) reads, in part: ``[t]he Commission shall establish
competitively neutral rules--to enhance, to the extent technically
feasible and economically reasonable, access to advanced
telecommunications and information services for all public and
nonprofit elementary and secondary school classrooms, health care
providers, and libraries.'' The Commission has acted pursuant to
section 254(c)(3) to designate BIAS as eligible for support under both
the E-Rate and Rural Health Care programs. The Commission concluded at
the inception of the E-Rate program that it has the authority to
support BIAS access and connections ``provided by both
telecommunications carriers and non-telecommunications carriers''
through the E-Rate program because ``such services enhance access to
advanced telecommunications and information services for public and
non-profit elementary and secondary school classrooms and libraries.''
The Commission also determined that it could fund BIAS support through
the Rural Health Care program under section 254(h).
71. However, section 214(e) limits providers receiving USF support
to common carriers providing telecommunications services and designated
as ETCs after undergoing Commission or State commission approval
processes. Currently, only carriers that offer qualifying voice
telephony services can be designated as ETCs and receive support from
the two USF programs that provide funds directly to carriers, the High
Cost and Lifeline programs. Reclassification will allow BIAS-only
providers to act as common carriers providing telecommunications
service and enable them to be designated as ETCs. Indeed, after the
2015 Open Internet Order (80 FR 19738 (Apr. 13, 2015)), the Wireline
Competition Bureau designated ten such providers as ``Lifeline
Broadband Providers'' (LBPs), and some of those providers began
providing service that was subsidized by Lifeline support. But in 2017,
the Bureau rescinded those designations, and since the RIF Order and
the RIF Remand Order, standalone broadband providers have remained
unable to receive critical Lifeline universal service support.
72. Allowing BIAS-only providers to participate in the High Cost
and Lifeline programs would enhance both programs. Both programs are
already oriented overwhelmingly toward BIAS over other service types.
As discussed above, providers in most High Cost program funds are
required to build BIAS-capable networks. Moreover, as of September 2023
approximately 96% of Lifeline customers subscribe to a plan that
includes broadband service. Several commenters echo many of the
anticipated benefits of allowing carriers that do not provide voice
services to participate in the High Cost and Lifeline programs
discussed in the 2023 Open Internet NPRM, including increased
competition, program participation, consumer choice, rural coverage,
and affordability. The Commission also has recognized that
``encourag[ing] market entry and increased competition among Lifeline
providers, which will result in better services for eligible consumers
to choose from and more efficient usage of universal service funds.''
One commenter stresses that allowing BIAS-only providers to become ETCs
will particularly benefit consumers in areas where there are currently
few or no ETCs that provide BIAS. The need to allow BIAS-only providers
to become ETCs is more important and will provide more utility than it
did when BIAS was last classified under Title II, as the 2015
classification allowed Lifeline subscribers to apply the benefit to a
``new generation of ISPs that [did] not use their facilities to offer
voice services,'' and now there are even more ways to provide BIAS via
innovative, affordable, and user-friendly technologies.
73. Thus, we adopt the 2023 Open Internet NPRM's tentative
conclusion ``that classifying BIAS as a telecommunications service will
strengthen our policy initiatives to support the availability and
affordability of BIAS through USF programs.'' The majority of
commenters support this conclusion. Commenters state that, through the
USF, the Federal government has made significant investments in
networks to ensure BIAS is available to all consumers and in service
subsidies to ensure BIAS is affordable for all consumers, and
reclassification ``will enable the Commission to protect these
investments on an ongoing basis by ensuring that these connections
benefit users.'' Commenters further stated that ``[t]he Commission
needs clear authority over broadband-only services to implement and
maintain an effective and efficient Lifeline policy.''
74. A minority of commenters disagree with the 2023 Open Internet
NPRM's tentative conclusion that we adopt in the Order. Several
commenters argue that USF considerations are relatively unimportant
because direct appropriations programs such as the Commission's
Affordable Connectivity Program (ACP) and NTIA's Broadband Equity,
Access, and Deployment (BEAD) Program are viable alternatives to
achieving USF goals. Some commenters further argue that
reclassification will deter private sector participation in the BEAD
program. We find these claims to be speculative and give them no
weight. Given that there is no definitive evidence that
reclassification adversely affects privately funded BIAS investment, if
it has any effect at all, see infra section III.H, we find the claim
that reclassification would adversely affect BIAS investment that is
substantially publicly funded to not be credible. Furthermore, we find
as a general matter that new obligations on BIAS providers are unlikely
to be more onerous under Title II than is the case currently, and
therefore find it unlikely that BIAS providers' decisions to
participate in publicly funded programs would be meaningfully impacted
as a result of reclassification. At least one commenter stressed the
importance of funding the ACP or making the ACP part of the USF.
Another party stressed both the need to renew ACP funding and the risks
of making ACP part of the
[[Page 45420]]
USF. These issues are the remit of Congress and the Commission is
unable to accomplish either through this or any proceeding. We
therefore decline to address them here. We do not believe that the
strength of other programs dependent on different funding sources
should prevent the Commission from strengthening the USF. Closing the
digital divide is a large undertaking that benefits from multiple
programs, and we note that some of these alternative programs are
winding down given their lack of funding. Moreover, the Commission is
statutorily required to preserve and advance the USF. One commenter
contends that the benefits of reclassification to the Commission's
universal service goals may not be realized because BIAS-only providers
will be unwilling to assume increased oversight by State or Federal
regulators to obtain ETC designation. This claim is not only
speculative, it ignores the new opportunities that Title II offers to
these providers to expand their networks and subscriber base through
potential eligibility to participate in the High Cost and Lifeline
programs. Moreover, as discussed above, the record shows significant
consumer interest in allowing BIAS-only providers to become ETCs. We
also make clear that reclassification only provides an opportunity to
BIAS-only providers to become ETCs; it does not mandate it. Neglecting
it because of the existence of other programs defies this mandate. One
commenter argues that the Commission should focus on ``ensuring that
funding issued through the Universal Service Funds or the Affordable
Connectivity Program are not wasted or subject to fraud or abuse''
instead of reclassification. The Commission currently has strong
program integrity protections for the USF programs and continues to
update them as needed. USF program integrity, however, is only
tangentially related to BIAS reclassification and does not have a
significant impact on our actions taken in the Order. We also decline
to address commenters arguing for reforms to the portions of the USF
that states regulate because they are similarly unrelated to the
proceeding.
75. We reject some commenters' assertions that as to universal
service, reclassification is a solution in search of a problem because
USF programs are functioning properly, the Commission currently has a
strong legal basis to support BIAS through USF programs, and
reclassification would not further, and would possibly hinder,
affordability and availability goals. While we agree that the USF
programs are currently well positioned to further BIAS availability and
affordability, we disagree that reclassification cannot better position
the statutory basis for the Commission's universal service efforts. As
noted above, with reclassification, we remove any doubt about the
ability of the Commission to support BIAS-only providers with our
universal service programs. While the Commission is not taking steps in
the Order to allow BIAS-only providers to receive High Cost or Lifeline
program support, the ever-changing nature of communications offerings
may necessitate such future action to ensure that limited Commission
resources are going towards services consumers need. Our action in the
Order bolsters our existing legal framework and gives the Commission
flexibility to establish BIAS as a supported telecommunications
service.
76. We also adopt the 2023 Open Internet NPRM's tentative
conclusion that classifying BIAS as a telecommunications service would
protect public investments in BIAS access and affordability.
Establishing firmer legal authority to fund BIAS through the High Cost
and Lifeline programs ensures that public funds can continue to flow
into network buildouts and discounted service. Commenters agree that
reducing barriers to USF participation, including by potentially
allowing BIAS-only carriers to participate in the High Cost and
Lifeline programs in the future, will protect public investment by
increasing the number of entities eligible to receive it, including
small providers previously ineligible to become ETCs and providers in
rural areas where there had been no or few ETCs prior. We are
unpersuaded by one commenter's argument that ``the NPRM's tentative
conclusion that reclassification `protects public investments in
[broadband] access and affordability' ignores the fact that, in the
bipartisan [Infrastructure Investment and Jobs Act of 2021 (IIJA)],
Congress appropriated tens of billions of dollars for broadband
deployment, adoption, and affordability without subjecting broadband to
any Title II requirements.'' Congress's choice to support discrete
public investment through special appropriations does not affect
whether reclassification furthers the Commission's ability to protect
ongoing public investment distinct from or in concert with
appropriations.
77. While we agree with the potential for expanded access to our
universal service programs, we do not, however, designate BIAS as a
supported service at this time. Section 254(c)(1)'s requirement that
the Commission ``shall establish periodically'' which
telecommunications services meet the USF supported service standard
does not require the Commission to designate universal services at any
specific interval or time, much less the moment a service is classified
as a telecommunications service. The record created in this proceeding
is insufficient to properly and effectively address all of the concerns
raised by designating BIAS a supported service. Rather than adjust our
USF rules on a piecemeal basis, retaining existing supported universal
services and, by extension, ETC eligibility standards, provides us the
flexibility for holistically examining reclassification's effects on
the USF at a later time. For this reason, we decline at this time to
revise our definition of supported services.
8. Improving Access for People With Disabilities
78. We find that reclassification of BIAS under Title II will
enhance the Commission's authority to ensure that people with
disabilities can communicate using BIAS. Specifically, we agree with
commenters that reclassification will enable the Commission to utilize
its authority under sections 225, 255, 251(a)(2), and the newly adopted
open internet rules to ensure that BIAS is accessible for people with
disabilities.
79. People with disabilities who have access to BIAS rely on
internet-based forms of communications for more effective and efficient
direct and relayed communications. Reclassification of BIAS under Title
II and prohibiting BIAS providers from blocking or throttling
information transmitted over their BIAS networks, engaging in paid or
affiliated prioritization arrangements, and engaging in practices that
cause unreasonable interference or disadvantage to consumers will allow
the Commission to better safeguard access to internet-based
telecommunications relay services (TRS). Reclassification will also
allow the Commission to ensure that BIAS and equipment used for BIAS
are accessible to and usable by people with disabilities and precludes
the installation of ``network features, functions, or capabilities that
do not comply with the guidelines and standards established pursuant to
section 255 . . . .'' These provisions work in concert with sections
716 and 718 of the Act, giving the Commission authority to increase and
to maintain access for people with disabilities to modern
communications. Section 716 of the Act requires that advanced
communications services be accessible to and usable by people with
[[Page 45421]]
disabilities. Advanced communications services are: ``(A)
interconnected VoIP service; (B) non-interconnected VoIP service; (C)
electronic messaging service; (D) interoperable video conferencing
service; and (E) any audio or video communications service used by
inmates for the purpose of communicating with individuals outside the
correctional institution where the inmate is held, regardless of
technology used.'' Section 718 of the Act requires that internet
browsers installed on mobile phones be accessible to people who are
blind or visually impaired to ensure the accessibility of mobile
services.
80. For example, persons who are deaf, hard of hearing, or have
speech disabilities use BIAS to connect to internet-based video
applications to communicate directly with other persons who use sign
language (point-to-point) and other individuals who do not use the same
form of communication. These applications include Video Relay Service
(VRS), which involves multi-party synchronous high-definition video and
audio streaming requiring users to have a high-speed broadband
connection with sufficient data and bandwidth. Under section 225, the
Commission may make a telecommunications relay service like VRS
available to people with disabilities, but to use VRS, those
individuals must still subscribe to BIAS or mobile BIAS. Section 225
enables us to ensure that individuals with hearing and speech
disabilities can use BIAS-based services to communicate in a ``manner
that is functionally equivalent'' to the ability of a person who does
not have a hearing or speech disability. As the Commission recognized
in the 2015 Open Internet Order, BIAS providers may impede the ability
of the Commission to ensure BIAS-based forms of TRS are functionally
equivalent if they adopt network management practices that have the
effect of degrading the connections carrying video communications of
persons with hearing and speech disabilities. For instance, bandwidth
limits, data caps, or requirements to pay additional fees to obtain
sufficient capacity can have a disproportionate negative impact on
those people with disabilities who use VRS. These video-based services
are used by people whose first language is sign language and are the
only means of direct communications or a communications service that is
functionally equivalent to voice communications services used by
persons without hearing or speech disabilities.
81. We reject the argument by some commenters that reclassification
of BIAS under Title II will not enhance the Commission's authority to
ensure the accessibility of BIAS or will not improve accessibility of
BIAS for people with disabilities, given the existence of the Twenty-
First Century Communications and Video Accessibility Act (CVAA). For
example, USTelecom and CTIA argue that reclassification is ``not
necessary'' or would have ``no impact on accessibility'' because
Congress has already given the Commission the requisite authority to
ensure the accessibility of BIAS in sections 716 and 718, which do not
rely on the classification of BIAS. Reclassification will apply
statutory provisions to BIAS that will enhance our ability to improve
the accessibility of BIAS and internet-based communication services for
people with disabilities. Specifically, as discussed below, we do not
forbear from the application of sections 225, 251(a), and 255 or their
implementing regulations. We disagree with USTelecom that these
benefits are negligible. While the CVAA permits the Commission to adopt
certain regulations concerning ``advanced communications services,''
BIAS itself is not an advanced communications service, as specifically
defined in the CVAA. For example, the CVAA directs the Commission to
enact regulations to prescribe, among other things, that networks used
to provide advanced communications services ``may not impair or impede
the accessibility of information content when accessibility has been
incorporated into that content for transmission through . . . networks
used to provide [advanced communications services].'' Under section
716, 47 U.S.C. 617, a manufacturer of equipment used for advanced
communications services must ensure that such equipment is accessible
to and usable by individuals with disabilities, if achievable; and
similarly providers of advanced communications services must ensure
that those services are accessible to and usable by individuals with
disabilities, if achievable. Accordingly, reclassifying BIAS allows us
to regulate that service under Title II in ways that complements our
authority over advanced communications services under the CVAA. For
example, under Title II, providers of BIAS and manufacturers of BIAS
equipment and BIAS customer premises equipment must ensure that such
equipment and services are accessible to and usable by individuals with
disabilities, if readily achievable. In addition, section 251(a)(2)
prohibits providers of telecommunications services from installing
network features, functions, or capabilities that impede accessibility.
B. Broadband Internet Access Service Is Best Classified as a
Telecommunications Service
82. We conclude that BIAS is best classified as a
telecommunications service based on the ordinary meaning of the
statutory definitions for ``telecommunications service'' and
``information service'' established in the 1996 Act. This conclusion
reflects the best reading of the statutory terms applying basic
principles of textual analysis to the text, structure, and context of
the Act in light of (1) how consumers understand BIAS and (2) the
factual particulars of how the technology that enables the delivery of
BIAS functions. We recognize that when interpreting a statute, our
``analysis begins with the text'' of the statute ``and we look to both
`the language itself [and] the specific context in which that language
is used.' '' As explained below, the Commission also has well-
established and longstanding authority and responsibility, provided by
Congress, to classify services subject to the Commission's
jurisdiction, as necessary, using the Act's definitional criteria,
including the statutory provisions enacted as part of the 1996 Act. And
though not necessary to our conclusion that treating BIAS as a
telecommunications service is the best reading of the Act based on the
statutory text, structure, and context, our decision here is further
supported by the principles set forth by the Supreme Court in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron). Our
analysis is also appropriately afforded deference under Skidmore v.
Swift & Co. Commenters in the record take various positions about
possible judicial deference regimes that might (or might not) apply to
our classification decision. We need not linger over those disputes
given that we find our classification of BIAS reflects the best reading
of the Act irrespective of such considerations. We also conclude that
BIAS is not best classified as an information service.
83. Our application of the statutory definitions to BIAS is driven
by how typical users understand the BIAS offering. For an offering to
meet the ``telecommunications service'' definition, the
telecommunications component of the offering, from the perspective of
the end user, must have
[[Page 45422]]
a sufficiently separate identity from the other components to
constitute a separate offering of service. As the Supreme Court
explained in Brand X, ``[i]t is common usage to describe what a company
`offers' to a consumer as what the consumer perceives to be the
integrated finished product, even to the exclusion of discrete
components that compose the product.'' The D.C. Circuit affirmed that
consumer perception is important to determining the proper
classification of a service in USTA. Furthermore, the Commission has
consistently analyzed consumers' understanding of the offering in its
decisions classifying broadband services. The 2015 Open Internet Order
and RIF Order both analyzed their classification decisions based on
consumers' understanding of the offering. That we should understand the
Act's definitional terms based on the consumer perception of the
offering is also supported by the references to the ``user'' in the
definition of ``telecommunications.'' The record also provides support
for relying on consumer perception to conduct our classification
analysis, and in light of the record and the well-established basis for
relying on consumer perception and BIAS provider marketing, we disagree
with commenters who argue that this consideration is unsuitable to our
classification analysis.
84. Our classification decision also is guided by an evaluation of
the statutory definitions based on the factual particulars of how the
technology that enables the delivery of BIAS functions. In Brand X, the
Supreme Court noted that the question of what service is being offered
depends on ``the factual particulars of how internet technology works
and [how the service] is provided.'' Past Commission classification
decisions also indicate that evaluation of the underlying technology is
an important factor. Consistent with the 2015 Open Internet Order, we
also find that the functionality of the offering is also informed by
how BIAS providers market the offering, including whether the offering
is focused on the transmission capabilities of the service or any
information service component or capabilities that may be provided with
the transmission component. We therefore disagree with commenters who
argue that this consideration should not apply to our classification
analysis.
1. BIAS Is an Offering of Telecommunications for a Fee Directly to the
Public
85. We conclude that BIAS is best classified as a
``telecommunications service'' under the Act because it is an
``offering of telecommunications for a fee directly to the public.''
The RIF Order did not dispute that BIAS providers offer BIAS directly
to the public for a fee. In support of this conclusion, we find that
BIAS provides ``telecommunications,'' as defined in the Act, because it
provides ``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.''
86. As the Commission has previously observed, the critical
distinction between a telecommunications service and an information
service turns on what the provider is ``offering.'' The record in this
proceeding leads us to the conclusion that BIAS is perceived by
consumers and functions as a transmission conduit that does not alter
the information it transmits. The record also demonstrates that
consumers perceive--and BIAS providers market--BIAS as a standalone
offering of such telecommunications, which is separate and distinct
from the applications, content, and services to which BIAS provides
access, and which are generally information services offered by third
parties. While we ground our conclusion that consumers perceive--and
BIAS providers market--BIAS as a telecommunications service on the
record before us in this proceeding, we also find that the conclusions
reached by the 2015 Open Internet Order about consumer perception and
BIAS provider marketing were not only accurate regarding the BIAS
offered at the time, but remain accurate concerning BIAS today.
Additionally, no party in the record disputes that BIAS providers
routinely market BIAS widely and directly to the public for a fee, and
therefore that BIAS is not a private carriage service.
a. BIAS Provides Telecommunications
87. The record evinces significant support for the general
proposition that BIAS provides ``telecommunications''; that is, BIAS
provides ``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.''
88. BIAS Transmits Information of the User's Choosing. BIAS
transmits information of a user's choosing both functionally and from a
user's perspective, providing two independent, alternative grounds for
this conclusion. Functionally, as a packet-switched transmission
service using Internet Protocol (IP), BIAS transmits information of a
user's choosing because a user decides what information to place in
each IP packet that is transmitted when the user decides what
information to send and receive. A user chooses to send or receive
particular information when the user visits a particular website, uses
a particular application, or operates a particular online device or
service. We are therefore unpersuaded by USTelecom's argument that BIAS
does not provide telecommunications because users often receive
information that is not of their choosing, such as display advertising
on a web page. That the user may not know exactly what information the
user will receive does not mean that the information was not ``of the
user's choosing.'' Just as traditional voice service provides
telecommunications even though a user making a telephone call does not
necessarily know who will answer or what information will be conveyed
in the call, BIAS provides telecommunications even when a user does not
necessarily know exactly what information will be received in response
to the user's selections. We are likewise unconvinced by NCTA's
argument that BIAS does not transmit information of the user's choosing
because, ``unlike traditional, circuit-switched voice services, in
which the user chooses and sends the information--i.e., his or her
voice--to a particular called party, broadband involves continual
interaction between computers and the transmission network, as well as
among computers themselves.'' To the extent BIAS is continually sending
and receiving information, it is doing so because users are choosing to
interact with websites, applications, or online devices or services,
and they are therefore directing the sending and receiving of such
information.
89. BIAS Transmits Information Between or Among Points Specified by
the User. The consumer perspective and technological functionality
confirm that BIAS transmits information between or among points
specified by the user, providing two independent, alternative grounds
for this conclusion as well. A typical consumer understands the phrase
``points specified by the user'' to mean the person, business, or
service provider with which the user intends to share information.
Therefore, when a consumer chooses to use a particular
[[Page 45423]]
website, application, or online device or service, the user perceives
that the user is specifying the points for the transmission of the
information that the user is sending or receiving. The ordinary meaning
of the terms ``specify'' and ``point,'' taken together, demonstrates
that users understand that when they ``specify'' the ``point,'' of
their choosing, they are specifying the website, application, online
device, or service with which they wish to communicate, regardless of
its physical or virtual location. We conclude that when BIAS users
expressly or explicitly identify to BIAS providers the particular
website, application, or online device or service they wish to access,
they would understand themselves to be specifying the points between or
among which the relevant information will be transmitted. Even assuming
arguendo that ``points specified by the user'' should be interpreted
more narrowly, the applications users are controlling to access
information may actually know the specific destination before the
transmission occurs, which provides an independent alternative basis
for our conclusion. This is true, contrary to some commenters' claims,
even if a user does not know the specific geographic location of that
person, business, or service provider or the precise physical or
virtual location or address where the requested content is stored.
Functionally, a user is also specifying the IP address of their desired
point even when the user enters a fully qualified domain name, such as
<a href="http://www.example.com">www.example.com</a>, because the domain is resolved by the DNS to the
appropriate IP address. Additionally, the fact that users may specify a
point associated with more than one virtual location or address (e.g.,
due to load balancing) ``does not transform that service to something
other than telecommunications.'' Indeed, the Commission has ``never
understood the definition of `telecommunications' to require that users
specify--or even know--information about the routing or handling of
their transmissions along the path to the end point, nor do we do so
now.'' This understanding of the ``points specified by the user''
phrase is consistent with the 2015 Open Internet Order, which noted
that users ``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.''
Thus, ``there is no question that users specify the end points of their
internet communications.''
90. That users specify the points for the transmission of their
information when using BIAS is consistent with the functionality of
other forms of telecommunications. For example, in the context of
mobile voice service, when a user dials a number, the call is routed to
a cell tower near the called party--likely the one that would provide
the best user experience--just as how a BIAS user's query to a video
streaming service is often directed toward the server nearest to the
user. In neither case does the user know the precise geographic
location of the ``point'' specified. With toll-free 800 service, a call
dialed to a single telephone number may route to multiple locations
that are unknown to the user. Similarly, with call bridging services,
when a user dials a telephone number, the call is routed often to
multiple points, all with geographic locations that are unknown to the
user. Additionally, when the Commission first had the opportunity to
classify a broadband service--namely, digital subscriber line (xDSL)-
based advanced service--in the Advanced Services Order (63 FR 45140
(Aug. 24, 1998)), it concluded that the end user chooses the
destination of the IP packets sent beyond the central office where the
tariffed service of Bell Operating Companies (BOCs) ended, relying on
the function of such voice services. The Commission did not understand
any of these services to fall outside the meaning of telecommunications
simply because the user did not know the precise location of the
points.
91. The statutory context reinforces this understanding. The 1996
Act, which enacted the ``telecommunications'' definition, also included
section 706, which directs the Commission to ``encourage the deployment
. . . of advanced telecommunications capability,'' and to conduct
marketplace reviews in that regard. Section 706 defines the specific
sorts of ``telecommunications capability'' at issue as ``enabl[ing]
users to originate and receive high-quality voice, data, graphics, and
video telecommunications using any technology''--but does not
separately define ``telecommunications capability'' or
``telecommunications.'' Consequently, pursuant to section 3(b) of the
1996 Act, the definition from section 3 of the Communications Act--
i.e., the ``telecommunications'' definition we are applying here--
applies to the use of ``telecommunications'' in section 706 of the 1996
Act. It is improbable that users could be expected to have more
knowledge of the specific geographic or virtual locations between or
among which ``high-quality voice, data, graphics, and video'' are
transmitted than they do in the case of BIAS transmissions. Similarly,
that Congress considered the information a user receives in the form of
``high-quality voice, data, graphics, and video'' to fall within
``advanced telecommunications capability'' accords with the
understanding that users likewise have chosen the information they
receive when accessing the internet using BIAS, even if they have not
anticipated and specified its minutest details.
92. BIAS Transmits Information Without Change in the Form or
Content as Sent and Received. BIAS transmits information ``without a
change in its form or content as sent and received'' from a user
perspective. The record demonstrates that users expect that their
information will be sent and received without change and does not show
that these user expectations are not being met. There is even record
evidence that consumers have rejected past attempts by BIAS providers
to change the form or content of their information. When a user
``chooses'' to stream a music video, for example, the user expects to
hear the song and see the choreography without it being changed by
their BIAS provider. The record does not show that the user perceives
any processing or intelligence that is employed to deliver the video,
let alone understands that processing or intelligence to cause a change
in the form or content of that information.
93. BIAS also does not change the form or content of the
information it transmits from a technical perspective. As we explain
above, BIAS transmits the information of users' choosing because users
decide what information should be placed in the packets that are
transmitted. There is no change in the form or content of that
information because the packet payload is not altered in transit.
Although BIAS may use a variety of protocols to deliver information
from one point to another, the fundamental premise of the internet is
to enable the transmission of information without change in the form or
content across interconnected networks, and any such changes would
undermine that very functionality.
94. It is therefore not the case, as some commenters at the time of
the RIF Order contended and some commenters here repeat, that the
processing or intelligence that is combined with the transmission
component, and that may act upon a user's information for routing
purposes, changes the form or content of that information. NCTA argues,
for example, that while packet content may
[[Page 45424]]
not change, the packet switching architecture itself--``the breaking
apart, routing, and reconfiguration of these packets''--``involves a
`change in the form or content' of the information requested or sent by
the user.'' Making a similar argument, CTIA uses streaming a video as
an example, claiming that the ``significant information-processing,
from transforming keystrokes and clicks into machine readable
languages, to dividing information into packets, to intelligently
routing those packets to a server close to the user, to retrieving and
processing the video data for transmission,'' is what makes BIAS an
information service. CTIA also suggests that the form of information
transmitted by BIAS is changed because the ``coded information actually
being transmitted looks quite different from anything the user would
recognize.'' But the salient question under the statute is whether
there is a change in form or content of the information ``as sent and
received.'' The statutory focus thus is on either end of the
transmission, irrespective of any processing that occurs in between.
With data communications, while the information may be fragmented into
packets and unintelligible to users while in transit, ``such
fragmentation does not change the form or content, as the pieces are
reassembled before the packet is handed over to the application at the
destination,'' and thus the information is delivered to or from the
desired endpoint as it was sent and therefore without a change in
``form or content'' within the meaning of the statute. The Commission
has found in other contexts that protocol ``processing'' involved in
broadband transmission causes no net change in the form or content of
the information being transmitted. CTIA erroneously argues that the
Non-Accounting Safeguards Order (62 FR 2991 (Jan. 21, 1997)) held that
all protocol processing is an information service while ignoring the
Commission's finding that non-net protocol processing falls under the
telecommunications systems management exception.
95. NCTA's and CTIA's arguments also fail to acknowledge that BIAS
is not unique or distinguished from processing and intelligent routing
used by traditional telecommunications services. Mobile voice telephone
service for example, relies on similar processing to support essential
functions including mobile call routing, mobile paging, and handover
between cellular towers. For circuit-switched calls on these networks,
when a mobile user moves from one serving base station area to another
serving base station area, the call is handed over from the current
serving base station to the new serving base station with the help of
the base station controller and the mobile switching center. Similarly,
modern voice telephony (both fixed and mobile) can convert circuit-
switched voice transmissions into IP packets, route those packets using
the same processing as a BIAS provider does, and convert those packets
back to a circuit-switched format to deliver the call. Similar
conversions historically have been present in other packet-switched
transmission services as well. Contrary to NCTA's and CTIA's view, none
of these services are or can be understood to fall outside the meaning
of telecommunications on the theory that there is a change in the form
or content of the information as sent or received. CTIA tries to
distinguish voice and data services, arguing that ``the internet and
PSTN are two fundamentally different networks'' because the internet
uses packet switching to route data while the PSTN uses SS7 signaling
to route calls, which it says explains why they ``are completely
incompatible with each other and cannot directly interoperate.'' But
CTIA does not explain why these distinct protocols and their
incompatibility are independently relevant to classification
determinations, and its argument merely underscores that both BIAS and
voice networks involve inherent processing and signaling to ensure that
information is efficiently and correctly routed. Indeed, given the
prevalence of such technologies used in transmission, reaching a
contrary conclusion effectively would suggest that no transmission
services could ever be telecommunications, which could not have been
what Congress intended. The only services that reclassification
opponents argue include a net protocol conversion are certain forms of
VoIP. But even assuming arguendo the merits of the commenters'
technological description, they do not demonstrate that users of VoIP
consider the conversion to effectuate material changes, let alone that
they should inform our understanding of how BIAS users perceive that
service, as relevant to the ``telecommunications'' definition.
96. Our understanding of the ``telecommunications'' definition in
this regard also is supported by the scope of services encompassed by
the meaning of ``advanced telecommunications capability'' in section
706 of the 1996 Act. The purported changes in form or content that some
commenters associate with BIAS are no less likely to be associated with
the accessing of ``high-quality voice, data, graphics, and video'' that
Congress included within the scope of ``advanced telecommunications
capability'' under section 706. This elicits harmonization within the
1996 Act between the ``telecommunications'' definition and section 706,
supporting our application of the ``telecommunications'' definition to
BIAS here. Elsewhere, the Order interprets section 706 of the 1996 Act
as a grant of regulatory authority. We make clear, however, that our
consideration of section 706 in our analysis here does not depend on
whether section 706 is understood as a grant of regulatory authority.
Separately, we recognize that the RIF Order concluded that BIAS is made
available ``via telecommunications'' by reference to an amorphous set
of inputs that BIAS providers use when offering service. But even
accepting that, it raises more questions than answers as far as section
706 is concerned. For instance, it fails to address whether a BIAS
provider's own use of telecommunications as an input into BIAS would be
enough to bring it within the scope of section 706, and if so, whether
the entirety of the service would fall within the scope or just those
aspects--ill-defined by the RIF Order--that rely on telecommunications
inputs. The RIF Order also fails to explain how those amorphous details
about the underlying inputs used in BIAS could be a meaningful factor
in understanding the ``telecommunications'' definition from a user
perspective. Even if those questions had answers, we find our approach
best harmonizes the ``telecommunications'' definition and the meaning
of ``advanced telecommunications capability'' in section 706.
97. The user perspective and functionality of BIAS is also
consistent with the ordinary meaning of the words ``form'' and
``content,'' as they were understood at the time of the 1996 Act's
adoption. The word ``form'' was understood as ``a shape; an arrangement
of parts,'' ``the outward aspect (esp. apart from colour) or shape of a
body,'' or ``the mode in which a thing exists or manifests itself (took
the form of a book)''; ``the shape or appearance of something'' or
``the particular mode in which a thing or person appears: wood in the
form of paper''; and ``the shape and structure of something as
distinguished from its material.'' In support of its view, CTIA cites a
recent Second Circuit case purporting to define ``form'' as ``pattern
or schema,'' which we do not find to differ fundamentally from the
definitions we provide from the time of the 1996 Act's passage. Thus,
in the context of BIAS, the
[[Page 45425]]
question is whether the shape or appearance of the information being
transmitted is changed. This might occur, for example, if BIAS
manipulated the appearance of a website that a user is accessing or the
presentation of the information that appears in an application--but it
does not. When a user visits a website or uses an application, the
information is presented in exactly the form intended by the content
provider, and not a form determined by the BIAS provider. USTelecom
also argues that content filtering and video optimization means that
information transmission virtually never occurs ``without change in the
form or content.'' Insofar as this involves ``content filtering,'' the
filtered-out information is not information we consider the user to
have chosen to receive in the first place. Similarly in the case of
measures that guard against the distribution of malware, whether or not
consumers must affirmatively opt-in to such services, the record
provides no reason to believe that malware is information that BIAS
users have chosen to receive. Additionally, USTelecom cites video
optimization--e.g., to ``reduce the demand of high-resolution video on
mobile devices with small screens, mobile operators optimize the
content so as to consume less bandwidth.'' But such functionality
likely falls within the telecommunications systems management exception
to the information service definition, and in any event, USTelecom does
not suggest that video optimization causes the desired video not to
play, changes the content of the video as originally sent, or causes
the content not to present to the user as a video. The relevant
statutory question is whether a BIAS user would see video optimization
as sufficient to constitute a change in the form or content of the
information chosen by the user, and the record here does not make that
case. As such, BIAS transmits the form of the information to and from
an end user as it is sent. The same holds true for the ``content'' of
the information, a term which was understood at the time of the 1996
Act's adoption as ``the substance or material dealt with (in a speech,
work of art, etc.) as distinct from its form or style''); ``the meaning
or substance of a piece of writing, often as distinguished from its
style or form''); ``substance, gist'' or ``meaning, significance.''
BIAS providers do not change the substance of a news article on a
website, a social media post, the lyrics or melody of a streaming song,
or the images that appear in a photograph or video, and thus BIAS
providers do not change the content under the ordinary meaning of that
term. ACA Connects argues that BIAS includes certain capabilities,
namely retrieval and storage, that can fit within the information
service definition even though they do not require net protocol
conversion. But ACA Connects does not explain if the capabilities to
which it is referring are actually offered by BIAS providers (as
opposed to edge providers) or are different from those we already
address in the Order. ACA Connects also does not appear to grapple with
whether such capabilities--if indeed there are any we have not already
addressed--would fall under the telecommunications systems management
exception or are otherwise separable. In any event, that some
information-processing capabilities do not necessarily change the form
or content of information only further demonstrates that when
information-processing capabilities facilitate the use of BIAS, they do
not inherently cause BIAS to change the form or content of the
information it transmits.
b. BIAS Is a Telecommunications Service
98. BIAS is a ``telecommunications service'' because consumers
perceive it--and BIAS providers market it--as a standalone ``offering''
of telecommunications that is separate and distinct from the
applications, content, and services to which BIAS provides access, and
which are generally information services offered by third parties. BIAS
providers also market BIAS directly to the public for a fee, and it
therefore is not a private carriage service.
99. Consumers Perceive BIAS as a Standalone Offering of
Telecommunications. As evidenced in the record, there is wide
agreement, among both supporters and even some opponents of
reclassification, that consumers today perceive BIAS to be a
telecommunications service that is primarily a transmission conduit
used as a means to send and receive information to and from third-party
services. The D.C. Circuit recognized this in 2016, when it stated that
``[e]ven the most limited examination of contemporary broadband usage
reveals that consumers rely on the service primarily to access third-
party content.'' Since that time, this consumer perception of BIAS as a
gateway to third-party services has only become more pronounced. The
dramatic increase in consumers' reliance on BIAS to participate in
vital aspects of daily life during the COVID-19 pandemic set in stark
relief the central--and critical--importance of using BIAS to access
third-party services. And, as Home Telephone notes, while a consumer
``may decide to use edge services provided by the ISP, . . . the
consumer certainly is not expecting the ISP to dictate the edge
services available to them when subscribing to BIAS.'' It is thus
clearer now, more than ever before, that consumers view BIAS as a
neutral conduit (or, in the words of one commenter, a ``dumb pipe'')
through which they may transmit information of their choosing, between
or among points they specify, ``without change in the form or content
of the information as sent and received,'' and ``not as an end in
itself.'' It is also clear from the record that the third-party
services themselves rely on the neutral-conduit property of BIAS to
reach their customers. Netflix emphasizes that ``[their] members . . .
depend on an open internet that ensures that they can access our
content and the content of many other companies through their ISP's
networks without interruption.''
100. BIAS Providers Market BIAS as a Standalone Offering of
Telecommunications. We also find that BIAS providers market BIAS as a
telecommunications service that is essential for accessing third-party
services, and this marketing has become more pronounced during and
since the COVID-19 pandemic. In the 2015 Open Internet Order, the
Commission concluded that BIAS providers 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. BIAS providers'
marketing today appears even more focused than in 2015 on the
capability of BIAS to transmit information of users' choosing between
internet endpoints, rather than any 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. INCOMPAS notes that ``some mobile BIAS
providers offering 5G services are now marketing their network capacity
to serve the fixed BIAS marketplace.'' Public Knowledge notes that
``[a] brief
[[Page 45426]]
survey of television and online advertising for both mobile and fixed
broadband shows that ISPs compete with each other on the basis of
speed, price, ease of use, reliability and availability.'' In those
cases where BIAS providers mention edge provider services, they often
advertise them as separate offerings that can be bundled with or added
on to their broadband internet access services, such as discounted
subscriptions to unaffiliated video and music streaming services or
access to mobile security apps.
101. BIAS Providers Market BIAS Directly to the Public for a Fee.
The concept of the ``offering'' within the telecommunications service
definition is based on the principles of common carriage. If the
offering meets the statutory definition of ``telecommunications
service,'' then the Act makes clear that a provider ``shall be treated
as a common carrier'' under the Act ``to the extent that it is engaged
in providing'' such a service. The Commission also has interpreted the
language of the ``telecommunications service'' definition in such a way
that meeting that definition also necessarily means the service meets
the definition of a common carrier service. We note that a service can
be a telecommunications service even where the service is not held out
to all end users equally.
102. The record does not dispute that BIAS providers market BIAS
directly to the public for a fee. This factual reality aligns with our
definition of BIAS as a mass-market retail service as such services are
necessarily offered to the public for a fee. Because BIAS providers do
in fact offer BIAS as a mass-market retail service, we conclude, as the
Commission did previously, that BIAS is not a private carriage
offering. Because the RIF Order concluded that BIAS was an information
service, it did not need to reach the question of whether any aspect of
the BIAS transmission offering was common or private carriage. We note
that no party argues that BIAS is offered on a private carriage basis.
While ADTRAN argues that the Commission permits ``a carrier to choose
how to structure its offerings and decide whether to operate as a
common carrier or a private carrier,'' it does not argue that any
particular BIAS offering is structured as a private carriage service.
103. Additionally, since we conclude below that BIAS includes the
exchange of traffic by an edge provider or an intermediary with the
BIAS provider's network (i.e., peering, traffic exchange or
interconnection), we again conclude that the implied promise to make
arrangements for such exchange does not make the traffic exchange
itself a separate offering from BIAS--private carriage, or otherwise.
Even if a traffic exchange arrangement involves some individualized
negotiation, that does not change the underlying fact that a BIAS
provider holds the end-to-end service out directly to the public. We
again conclude that some types of individualized negotiations are
analogous to other telecommunications carriers whose customer service
representatives may offer variable terms and conditions to customers in
circumstances where the customer threatens to switch service providers.
Therefore the end-to-end service remains a telecommunications service.
2. BIAS Is Not an Information Service
104. We find that BIAS, as offered today, is not an information
service under the best reading of the Act because it is not itself
``the offering of a capability for generating, acquiring, storing,
transforming, processing, retrieving, utilizing, or making available
information via telecommunications.'' Rather, BIAS functions as a
conduit that provides end users the ability to access and use
information services that provide those capabilities. DNS, caching, and
other information-processing capabilities, when used with BIAS, either
fall within the telecommunications systems management exception to the
definition of ``information service,'' or are separable information
services not inextricably intertwined with BIAS, or both, and therefore
do not convert BIAS into an information service. Additionally, BIAS is
not perceived by consumers or marketed by BIAS providers as an
information service.
a. BIAS Does Not Offer the Capability To Process Information in the
Ways Provided in the Act
105. Information services are applications whose information
payload is transmitted via telecommunications. These applications
provide end users with the capability to process the information they
send or receive via telecommunications in the ways Congress specified
in the information service definition, including the capability to:
``generate'' and ``make available'' information to others through email
and blogs; ``acquire'' and ``retrieve'' information from sources such
as websites, online streaming services, and file sharing tools;
``store'' information in the cloud; ``transform'' and ``process''
information through image and document manipulation tools, online
gaming, cloud computing, and machine learning capabilities; ``utilize''
information by interacting with stored data; and publish information on
social media sites. We use the term ``process'' to reference all the
terms described in the information service definition: generating,
acquiring, storing, transforming, processing, retrieving, utilizing, or
making available. In all these respects, information services are the
platforms that edge providers offer today. Furthermore, all these
information services are completely distinct from the conduit--i.e.,
the telecommunications--via which the payload for these services is
sent and received. Although BIAS providers may separately offer some of
these services to their subscribers, the information services most
often accessed by users are provided by third parties. Below we discuss
how certain such services can be used for the management, control, and
operation of a telecommunications system or management of a
telecommunications service, and how in those instances, those services
fall into the telecommunications systems management exception to the
information service definition.
106. ACA Connects argues that since ``information services by
definition are offered `via telecommunications,' . . . just because a
service has a material transmission component does not necessarily mean
it is a telecommunications service.'' We acknowledge in our discussion
of precedent that information services are offered ``via
telecommunications'' and that the existence of a material transmission
component does not necessarily render a service a telecommunications
service, but the classification of a service depends on the how
consumers understand it and the factual particulars of how the
technology functions. As we explain at length, BIAS is best classified
as a telecommunications service because consumers perceive it as such
and because the transmission component has a distinct identity from any
information-processing capabilities. By contrast, ACA Connects
diminishes, if not ignores, the core nature of the transmission
component to BIAS. Moreover, ACA Connects' entire claim that BIAS is an
information service offering ``via telecommunications'' rests entirely
on its assertion that BIAS is an offering of DNS, caching, and third-
party information service offerings. But the service BIAS providers
offer that we are classifying is BIAS, and as we explain herein, BIAS
is not those other services.
[[Page 45427]]
107. The RIF Order and its proponents who commented in this
proceeding engage in analytical gymnastics in an attempt to fit BIAS
into the definition of ``information service.'' We are unconvinced.
They first claim that BIAS itself offers subscribers the ability to
process information in the ways prescribed by Congress's information
service definition. This claim simply rehashes old arguments about the
integration of DNS, caching, or other information-processing
capabilities into BIAS offerings, which we address below. For its own
part, the RIF Order arbitrarily found that the term ``capability'' is
``broad and expansive'' and then used that understanding to reach the
conclusion that the information service definition encompasses BIAS.
But the RIF Order's focus was misplaced. The question is not how broad
the meaning of ``capability'' is, but what the service itself has the
capability to do. As even the RIF Order makes clear, BIAS does not
itself have the capability to process information in the ways the
statute prescribes, it only ``has the capacity or potential ability to
be used to engage in the activities within the information service
definition.'' The RIF Order tries to prop up its flawed analysis by
claiming that the ``fundamental purposes'' of BIAS are ``for its use
in'' processing information in the ways described in the information
service definition and that BIAS was ``designed and intended'' to
perform those functions. But this claim amounts to nothing more than
statutory eisegesis: reading words into the definition of ``information
service'' that are not there to reach the RIF Order's predetermined
outcome. Having the ``fundamental purpose'' or being ``designed and
intended'' to do something does not mean a service actually has the
capability to do that thing. In any event, the fundamental purpose of
BIAS is to serve as a conduit through which users can access and use
the applications we describe above that are themselves information
services. Put differently, a consumer with a BIAS connection could not
generate, acquire, store, transform, process, retrieve, utilize, or
make available information using that connection if those applications
did not exist. We thus disagree with ACA Connects' conflation of the
service offered by edge providers and the service offered by BIAS
providers.
108. The RIF Order's expansive reading of ``capability'' also
logically sweeps into the information service definition a category of
services that is objectively different and obliterates the statutory
distinction between telecommunications services and information
services. For instance, under the RIF Order's conception of information
services, the broadband internet access services provided by BIAS
providers like Comcast, Verizon, and AT&T are classified as the same
type of services provided by edge providers like Netflix, DuckDuckGo,
and Wikipedia. But that defies reality. Furthermore, if the RIF Order's
framework was followed through to its logical conclusion, even the most
obvious of telecommunications services, 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
(e.g., through a simple phone call with another person), and utilize
stored information from others (e.g., by interacting with a call menu
or accessing voice mailbox services). The RIF Order tries to get around
this problem by comparing the ``design,'' ``functionality,''
``nature,'' and ``purpose'' of traditional telephony and BIAS, and then
concluding that because they are different, BIAS cannot be a
telecommunications service. But Congress did not design the Act's
definitional terms to preclude the Commission from ever classifying new
offerings that differ from traditional telephony as telecommunications
services. If Congress had intended to foreclose that option, it could
have easily done so. Rather the Act simply provides the Commission with
statutory definitions for ``telecommunications service'' and
``information service'' with which the Commission can make
classification determinations on an ongoing basis. As discussed above,
the better reading of these definitions makes clear that BIAS is a
telecommunications service as defined by the 1996 Act.
109. We are also unpersuaded by the RIF Order's contention, and
that of some commenters in this proceeding, that BIAS is an information
service by virtue of its provision of access to third-party information
services. For instance, NCTA points to the U.S. Supreme Court's
statement that, ``[w]hen an end user accesses a third-party's website,
. . . he is equally using the information service provided by the cable
company that offers him internet access as when he accesses the
company's own website . . .'' However, the Court's statement stemmed
from its affirmation of the reasonableness of the Commission's
``understanding of the nature of cable modem service,'' as offered at
the time, an understanding which we do not find applicable to BIAS as
offered today. This argument conflates the critical distinction between
the information services that are typically offered by third parties
and are not part of the BIAS offering itself with the
telecommunications services that BIAS providers offer to their
customers. In doing so, the RIF Order and its supporters largely
eliminate the category of ``telecommunications services'' established
in the Act, which Congress could not have intended. Congress would not
have devised a scheme where the definition of ``information service''
would largely moot the ``telecommunications service'' definition or
confine it only to telephone service, particularly when Congress was
aware that non-telephone transmission services had been offered for
years under the Computer Inquiries as basic services. Specifically,
under the RIF Order's framework, all telecommunications offerings used
to access third-party information services that themselves have the
``capability'' to ``store'' or ``transform'' information would
logically be transformed into information services. Such a conclusion
would be inconsistent with Commission precedent. But the Commission has
never, until the RIF Order, imputed the capabilities of such third-
party information services to the telecommunications services that
provide access to them. The RIF Order implicitly acknowledges the
absurdity of this argument in finding the need to clarify that
information services accessed via traditional telephone service do not
convert that telephone service into an information service.
b. DNS and Caching, When Used With BIAS, Fall Within the
Telecommunications Systems Management Exception
110. We find that information-processing capabilities, such as DNS,
caching, and others, when used with BIAS, fall within the
telecommunications systems management exception to the definition of
``information service.'' The Act excludes from the definition of
information service the use of information-processing capabilities
``for the management, control, or operation of a telecommunications
system or the management of a telecommunications service.'' We refer to
this as the ``telecommunications systems management exception.'' BIAS
providers sometimes use information-processing capabilities, such as
DNS and caching, to manage, control, and operate the telecommunications
system
[[Page 45428]]
they operate and the telecommunications service they offer. Thus, when
BIAS providers use DNS, caching, and other information-processing
capabilities in that way, those services fall within the
telecommunications systems management exception and therefore do not
serve to convert the entire BIAS offering into an information service.
ACA Connects suggests that we ``disregard or downplay information
processing capabilities'' used by BIAS providers even though we provide
a fulsome analysis herein of the role those capabilities play in the
provisioning of BIAS. At the same time, in its filings, ACA Connects
disregards or downplays the existence of the telecommunications systems
management exception and how it applies to those capabilities.
111. We disagree with those commenters who argue that we should
treat the transmission component of BIAS differently than the complete
BIAS offering that often uses information-processing capabilities, like
DNS and caching, to facilitate competition and achieve policy goals.
For instance, ADTRAN advocates that we give BIAS providers a choice
between complying with Title II requirements from which we do not
forbear and our open internet rules for their BIAS offerings, or
alternatively offering the transmission component of BIAS as a separate
service subject to Title II regulation. And Mitchell Lazarus advocates
that the Commission institute a Title II regime for the transport
component of BIAS and forbear from all Title II regulation except a
requirement that facilities-based ISPs open their facilities to
competing ISPs. Both these proposals share the same fault in that they
fail to recognize that the entire BIAS offering is best classified as a
telecommunications service, as we explain in the Order. Because we
already have identified a legally sound approach to address the issues
taken up in the Order we are not persuaded that we should instead take
these approaches, which these commenters recognize would likely
necessitate that we defer action and issue a further notice of proposed
rulemaking to address the practical details of these alternative
approaches. And at least to the second proposal, it would likely compel
all BIAS providers to separately offer the transmission component of
BIAS as a telecommunications service, but the Commission, in 2017,
expressed doubt about its ``statutory authority to compel common
carriage offerings . . . if the provider has not voluntarily'' offered
such a service itself.
112. We find that DNS, caching, and other services the BIAS
providers use with their BIAS offering comfortably fit within the
telecommunications systems management exception, either because they
are used to manage a telecommunications service; used to manage,
control, or operate a telecommunications system; or both. Even if
specific capabilities might seem most naturally to fit in one category
or another, so long as they ultimately fit within the
telecommunications systems management exception as a whole--which we
find to be the case for all the capabilities at issue here--we need not
precisely identify the specific category. We reach this conclusion by
evaluating these services under the exception based on the text,
structure, and context of the Act in light of the functionality of the
service, how the service is offered, and how consumers perceive the
service. We also take into consideration the harmonization of the 1996
Act's definitional framework with the pre-1996 Act classification
framework, as we discuss in greater detail below.
113. The text, structure, and context of the Act reveal that the
telecommunications systems management exception operates in the
aggregate to exempt from the ``information service'' definition those
capabilities that facilitate the operation of the telecommunications
system and the telecommunications service offered or provided on such
system. While ``telecommunications service'' is a statutorily defined
term, ``telecommunications system'' is not. Based on a number of uses
of ``system'' in the Act, as well as the ordinary meaning of
``system,'' we find that ``telecommunications system'' is best
understood as the facilities, equipment, and devices that a provider
uses in a network to offer or provide telecommunications services.
Definitions from specialized sources provide similar definitions. Thus,
management of a telecommunications service necessarily is closely
interrelated with the management, control, and operation of the
underlying network, equipment, and facilities used to offer or provide
that service. While ``manage,'' ``control,'' and ``operate'' each have
independent meanings, their ordinary meanings substantially overlap. We
find that these terms are therefore best viewed as sweeping into the
exception any uses of information-processing capabilities with the
telecommunications service or telecommunications system that satisfy
that aggregate understanding, regardless of whether one might think
they are better categorized within one of those terms or another. Read
together, we find that these terms are meant to encompass the full
scope of how a provider may use information-processing capabilities to
manage a telecommunications service or manage, control, or operate a
telecommunications system. Consequently, we ultimately need not resolve
the precise contours of the individual terms in order to determine the
proper classification of BIAS, and we elect not to do so at this time
because such decisions could have broader implications for other
classification decisions outside the context of this proceeding.
114. When evaluating information-processing capabilities under the
telecommunications systems management exception, it is immaterial that
a service may benefit consumers as well as providers. As the D.C.
Circuit affirmed in USTA, the relevant question for determining whether
a service falls within the exception is whether ``a carrier uses a
service that would ordinarily be an information service--such as DNS or
caching--to manage a telecommunications service'' or to manage,
control, or operate a telecommunications system. Inevitably, a
capability used to manage a telecommunications service or manage,
control, or operate a telecommunications system will provide benefits
to the provider, but the provider may also choose to use such
capabilities to benefit consumers. Indeed, a service that facilitates
the use of the system and service may provide better resource
management for the provider and a better experience for the consumer.
The relative benefit to providers and to consumers falls on a spectrum,
rather than being a bright line distinction. It is therefore not the
case, as the RIF Order claimed and some commenters reassert, that the
primary or exclusive benefit of a service that falls within the
telecommunications systems management exception must be directed to the
providers' operations.
115. DNS Falls Within the Telecommunications Systems Management
Exception. We conclude that DNS, when used with BIAS, falls within the
telecommunications systems management exception to the definition of
``information service.'' As explained in the 2015 Open Internet Order,
DNS, when offered on a standalone basis by third parties, is likely an
information service. DNS ``is most commonly used to translate domain
names, such as `<a href="http://nytimes.com">nytimes.com</a>,' into numerical IP addresses that are used
by network equipment to locate the desired
[[Page 45429]]
content.'' We note, as we did in 2015, that although a BIAS provider's
DNS server may offer other functionalities, BIAS does not depend on
such functionalities and therefore they are separable from BIAS. By
analogy, just as a telephone book or 411 directory assistance service
enables customers of telephone service to ascertain the telephone
number of a desired call recipient, DNS enables customers of BIAS to
ascertain the IP address of a desired internet endpoint. DNS may still
be considered analogous to an adjunct-to-basic service that would not
impact the classification of the transmission service under Commission
precedent, given that it facilitates use of BIAS and does not alter the
fundamental character of BIAS. DNS uses computer processing to convert
the domain name that the end user enters into an IP address number
capable of routing the communication to the intended recipient. In
addition to providing benefits to consumers, a BIAS provider's DNS
service benefits the provider, as it ``may significantly reduce the
volume of DNS queries passing through its network'' and can be employed
by BIAS providers for ``load balancing'' and enabling efficient use of
limited network resources during periods of high traffic or congestion.
We thus agree with the 2015 Open Internet Order's conclusion that DNS
``allows more efficient use of the telecommunications network by
facilitating accurate and efficient routing from the end user to the
receiving party.''
116. USTelecom argues that because DNS is ``undeniably [an]
information service[ ] when offered by third parties,'' we cannot also
conclude that same service is used for telecommunications management by
BIAS providers. It contends that Brand X's holding--that the statutory
definitions do not distinguish between facilities-based and non-
facilities-based carriers but on the capabilities the provider offers
via the service--forecloses that conclusion. We disagree. As the
statute's text makes clear, the telecommunications systems management
exception explicitly provides that information-processing capabilities
are not information services when they are used for the purposes of
managing a telecommunications service or managing, controlling, or
operating a telecommunications network. Thus, the purpose for which a
capability is used is key to evaluating the capability under the
exception. We note that USTelecom attempts to relitigate an argument
that was settled by the D.C. Circuit in USTA. We are not persuaded to
depart from the court's understanding as reflected in USTA. In the case
of DNS, ``[i]t is important to distinguish between a DNS server
operated by a broadband provider and a DNS server operated by an
unaffiliated entity, as they have different reasons for operating a DNS
server.'' While DNS offered by a third party likely does not fall
within the exception because the third party is not ``us[ing] . . .
such capability for the management, control, or operation of a
telecommunications system or the management of a telecommunications
service,'' the fact that BIAS providers use DNS to manage BIAS or
manage, control, or operate their BIAS networks causes it to fall
within the exception.
117. Caching Falls Within the Telecommunications Systems Management
Exception. We conclude that caching, when used with BIAS, falls within
the telecommunications systems management exception to the definition
of ``information service.'' Caching ``is the storing of copies of
content at locations in a network closer to subscribers than the
original source of the content.'' BIAS providers use caching ``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 thereby offer
faster BIAS to consumers. A BIAS provider also uses caching for a
number of internal benefits, including ``to decrease its own
bandwidth'' and for ``capacity management,'' so that the strain of
subscribers' traffic on certain network segments or equipment is
reduced, and to ``reduce its own transit costs, because cached
information need[ ] not be retrieved across a tier-1 backbone
network.'' Indeed, Verizon currently describes its caching of video
content as ``network management.'' We are therefore unpersuaded by
assertions that caching is used primarily or exclusively to benefit end
users, and for the reasons provided above, disagree that any benefits
to users disqualify caching from the telecommunications systems
management exception. Richard Bennett similarly argues that caching
falls outside the exception because it ``does not affect the
transmission rate of bits on the network medium.'' But Richard Bennett
does not point to any statutory language or Commission precedent that
requires a service to ``affect the transmission rate of bits'' in order
to fall within the exception. For these reasons, we conclude that
caching, when offered by a BIAS provider, falls within the
telecommunications systems management exception to the definition of
information service.
118. Caching used by BIAS providers is distinct from content
delivery network (CDN) caching. CDNs are a ``system of computers
networked together across the internet that cooperate transparently to
deliver content to end users, in order to improve performance,
scalability, and cost efficiency.'' These servers, typically owned and
managed by third-party CDN providers and not BIAS providers, cache edge
provider content close to BIAS subscribers to improve subscribers' load
times. As explained in the 2015 Open Internet Order, CDNs, when offered
on a standalone basis, such as by third parties, likely provision an
information service. As discussed below, we exclude third-party CDNs
from the scope of BIAS. One commenter references an amicus brief to
argue that caching ``is not a network management function'' because
``caching is often done not by BIAS providers, but by third parties.''
This only serves to demonstrate how dispensable caching is to the
provisioning of BIAS and highlights how a service can fall within the
telecommunications systems management exception when used by a provider
to provision a telecommunications service and not fall within the
exception when it is used for another purpose.
c. Information-Processing Capabilities Are Not Inextricably Intertwined
With BIAS
119. Even if, arguendo, DNS, caching, and other information-
processing capabilities did not fall within the telecommunications
systems management exception to the definition of ``information
service,'' BIAS providers offer these capabilities as separate
components that are not inextricably intertwined with BIAS, and
therefore they do not convert BIAS into an information service.
120. Whether an information service is inextricably intertwined
with a telecommunications service turns principally on whether users
view the offering as a bundle of a telecommunications service and one
or more information services or instead as a single integrated offering
that is an information service. Users' perception of the offering can
be supported by a functional evaluation focused on whether the
information service components are separable from the
telecommunications service components. Thus, the mere act of bundling
an information service with a telecommunications service, does not, on
its own, automatically cause the services to become inseparable or
inextricably intertwined. In this case,
[[Page 45430]]
the evidence of consumer perception and the separability of the
functions at issue both point to one conclusion--BIAS is not an
integrated information service. To the extent that prior Commission
decisions suggested that an ``inextricably intertwined'' analysis was
an independent prerequisite to a telecommunications service
classification, we are now changing course in light of our evaluation
of the statute.
121. We base our conclusion first and foremost on an examination of
the consumer perception of the BIAS offering, which shows that
consumers do not perceive the offering as an information service. We
also examine the role that DNS, caching, and other information-
processing capabilities functionally play in provisioning BIAS today
and find that they are separable. We reiterate the factual reality that
the core element of BIAS, as offered by BIAS providers today, is the
transmission component. Our definition of BIAS, remaining unchanged
since 2010, makes clear that the ``data transport service,'' or
``telecommunications component,'' and BIAS are indeed one in the same.
Without the transmission component, BIAS, as offered today, would be no
service at all. As we elaborate below, the same cannot be
[…truncated; see source link]Indexed from Federal Register on May 22, 2024.
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