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1 1 (October 19, 2023)

handle is hein.crs/govenez0001 and id is 1 raw text is: Congressional Research & Informing the IegisIative debate since 191 0 October 19, 2023 FCC Adopts Proposed Net Neutrality Rule On October 19, 2023, the Federal Communications Commission (FCC) adopted a Notice of Proposed Rulemaking (NPRM) that proposes to reclassify broadband internet access service (BIAS) as a Title II common carrier service and reinstate net neutrality rules. The NPRM is the FCC's latest action on a subject with a lengthy regulatory and legal history. This In Focus provides an overview of net neutrality regulation, a brief discussion of how the FCC's classification of broadband affects that regulation, a summary of the NPRM, and a discussion of potential legal challenges and policy considerations. Net Neutrahity Regulation Net neutrality generally refers to the idea that internet service providers should neither control how consumers lawfully use their networks nor discriminate among the content providers that use their networks. The FCC has sought to implement net neutrality rules several times, most recently in 2015. In its 2015 net neutrality order, the FCC laid out what it called clear, bright-line rules that BIAS providers were required to follow. Specifically, they were prohibited from: (1) blocking lawful content, applications, services, or non-harmful devices; (2) throttling (i.e., impairing or slowing) lawful internet traffic on the basis of content, applications, services, or use of non-harmful devices; and (3) engaging in paid prioritization, which is defined as favoring some internet traffic over others in exchange for consideration. The FCC also imposed a broad catch-all rule referred to as the general conduct standard. That standard prohibited BIAS providers from unreasonably interfering with or disadvantaging users and edge providers (i.e., persons or companies providing content and services to a BIAS provider's subscribers) in accessing or providing the lawful content, applications, services, or devices of their choice. The FCC repealed most of its net neutrality rules, however, in an order adopted at the end of 2017. Net Neutrality and Broad band C lassification The FCC's ability to adopt net neutrality rules depends on the legal classification of BIAS under the Communications Act of 1934 (the Act). As amended, the act defines two mutually exclusive categories of services: telecommunications services and information services. While telecommunications service providers are treated as highly regulated common carriers under Title II of the act, the FCC has much more limited regulatory authority over information service providers. The FCC has alternated between classifying BIAS as a telecommunications service and an information service. The U.S. Supreme Court and U.S. Court of Appeals for the D.C. Circuit have affirmed the FCC's discretion to make- and to change-this classification decision. The D.C. Circuit has also held that the FCC may enact net neutrality rules only if it has classified BIAS as a telecommunications service. Currently, per the FCC's 2017 order, BIAS is classified as an information service. The NPRM The NPRM proposes to again reclassify BIAS as a telecommunications service and to reinstate the 2015 net neutrality rules, including the general conduct standard. As in 2015, the NPRM proposes to forbear from applying many Title II requirements to BIAS providers. It also emphasizes that the FCC would not use Title II to prospectively set the rates BIAS providers can charge. The NPRM further asserts that Title II reclassification would allow the FCC to further goals other than net neutrality, including national security, public safety, network resiliency, and privacy. National Security. The NPRM explains that reclassification would enhance the FCC's ability to respond to national security threats by subjecting BIAS providers to authorization requirements under Section 214 of the act. The FCC has used this authority to ban several China- affiliated Title II carriers from operating in the United States for national security reasons. The NPRM indicates that the FCC could take similar action with BIAS providers deemed to pose a threat to national security. Public Safety. The NPRM states that the FCC could use the reclassification in combination with other statutory authority to ensure BIAS meets the needs of public safety entities and individuals when they use those services for public safety purposes. For example, the agency believes the proposed reclassification would enable the FCC to support public safety officials' use of BIAS for public safety purposes; ensure BIAS is available to the public to communicate with first responders during emergency situations; allow the public to access public safety resources and information; and provide consumers with the connections they need to operate home safety and security systems (such as cameras and window sensors). Network Resiliency. The NPRM tentatively concludes that reclassifying BIAS as a telecommunications service would enhance the FCC's ability to ensure the nation's communications networks are resilient and reliable. In particular, the reclassification may allow the FCC to require that BIAS providers report network outages to the Network Outage Reporting System (NORS). The NPRM explains that such reporting requirements could inform the FCC's network resiliency efforts and give officials greater transparency during outages. Privacy. The NPRM tentatively concludes that reclassification of BIAS as a telecommunications service would support the FCC's goal to safeguard consumers' privacy and data security. As discussed further in a CRS te

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