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



[[Page 76047]]

Vol. 88

Friday,

No. 212

November 3, 2023

Part V





Federal Communications Commission





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47 CFR Parts 8 and 20





Safeguarding and Securing the Open Internet; Proposed Rule

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

[[Page 76048]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 8 and 20

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


Safeguarding and Securing the Open Internet

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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

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

ADDRESSES: You may submit comments, identified by WC Docket No. 23-320 
by any of the following methods:
    <bullet> Electronic Filers: Comments may be filed electronically 
using the internet by accessing ECFS: https://www.fcc.gov/ecfs/.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
    <bullet> U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 45 L Street NE, Washington, DC 20554.
    <bullet> Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, 35 FCC Rcd 2788 (2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#9bfdf8f8aeabafdbfdf8f8b5fcf4ed"><span class="__cf_email__" data-cfemail="b8dedbdb8d888cf8dedbdb96dfd7ce">[email protected]</span></a> or call the 
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice).

FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau, 
Competition Policy Division, <a href="/cdn-cgi/l/email-protection#226d52474c4b4c5647504c475610121011624441410c454d54"><span class="__cf_email__" data-cfemail="bef1cedbd0d7d0cadbccd0dbca8c8e8c8dfed8dddd90d9d1c8">[email protected]</span></a>. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, send an email to 
<a href="/cdn-cgi/l/email-protection#12424053527471713c757d64"><span class="__cf_email__" data-cfemail="69393b28290f0a0a470e061f">[email protected]</span></a> or contact Nicole Ongele, <a href="/cdn-cgi/l/email-protection#37795e54585b5219785950525b527751545419505841"><span class="__cf_email__" data-cfemail="5f11363c30333a711031383a333a1f393c3c71383029">[email protected]</span></a>.

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

Initial Paperwork Reduction Act of 1995 Analysis

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

Providing Accountability Through Transparency Act

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

Synopsis

I. Proposed Classification of Broadband Internet Access Service

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

[[Page 76049]]

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

A. Broadband Internet Access Service Is Essential

    2. While BIAS connections have long been important to full 
participation in our society and economy, we believe the COVID-19 
pandemic dramatically changed the importance of the internet today, and 
seek comment on our belief. Not unlike other essential utilities, such 
as electricity and water, BIAS connections have proved essential to 
every aspect of our daily lives, from work, education, and healthcare, 
to commerce, community, and free expression. BIAS connections were so 
critical during the pandemic that Congress undertook a number of 
federal initiatives to improve the accessibility and affordability of 
BIAS across America, finding in the preamble to Sec.  60101 of the 
bipartisan Infrastructure Investment and Jobs Act (Infrastructure Act) 
that ``access to affordable, reliable, high-speed broadband is 
essential to full participation in modern life in the United States.'' 
A Pew Research Center survey highlighted this reality, showing that 
high speed internet was essential or important to 90 percent of U.S. 
adults during the COVID-19 pandemic. That finding is backed by the 
tremendous use during the pandemic of text messaging applications, 
voice services, and video conferencing for work, school, civic 
engagement, and connecting with family and communities, accessed 
through consumers' fixed and mobile broadband connections. The 
increased importance of BIAS connections has persisted post-pandemic. 
Compared to last year, nearly 45 percent of respondents to one survey 
said their internet usage had increased, while the average amount of 
time respondents spent actively using the internet on a phone, tablet, 
or computer was eight hours, excluding passive activities, such as 
streaming music or video in the background. OpenVault reports that 
almost 50 percent of fixed broadband subscribers in the U.S. used 533 
gigabytes (GB) or more of bandwidth per month through the fourth 
quarter of 2022, compared to about 10 percent of subscribers in 2017. 
From year-end 2020 to year-end 2021, monthly data usage per smartphone 
subscriber rose to an average of 12.1 GB per subscriber per month--an 
increase of approximately 12 percent. We seek comment on how consumers' 
usage and view of BIAS has changed since 2018, when Title II 
classification was reversed, and particularly since the onset of the 
pandemic in 2020. In what ways has the importance of BIAS to consumers 
stayed the same? How should any evolution in the importance of BIAS to 
consumers drive our analysis today? We also seek comment on how the 
importance of BIAS is expected to evolve going forward.
    3. We tentatively conclude that developments in the importance of 
the internet to consumers demonstrate that consumers perceive and use 
BIAS as a standalone service that provides telecommunications. In the 
2015 Open Internet Order (80 FR 19737 (April 13, 2015)), the Commission 
concluded that consumers perceive BIAS both as a standalone offering 
and as providing telecommunications. The D.C. Circuit found in USTA 
that these conclusions had ``extensive support in the record and 
together justify the Commission's decision to reclassify broadband as a 
telecommunications service.'' As the D.C. Circuit recognized, ``[e]ven 
the most limited examination of contemporary broadband usage reveals 
that consumers rely on the service primarily to access third-party 
content.'' We believe that the increased importance of BIAS to 
consumers since the onset of the pandemic shows that consumers' 
perception and use of BIAS as a standalone telecommunications service 
is even more pronounced now than it was in 2015. Indeed, consumers' use 
of BIAS today appears to go to the very heart of the purposes for which 
consumers have historically utilized ``telecommunication services'': to 
``transmi[t], between or among points specified by the user, of 
information of the user's choosing, without change in the form or 
content of the information as sent and received.'' We seek comment on 
our tentative conclusion and this analysis.
    4. We also believe that the COVID-19 pandemic, and the increased 
importance of BIAS to consumers, has spurred ISPs to market BIAS as a 
telecommunications service that is essential to accessing separate 
data-related ``add-on'' offerings. In the 2015 Open Internet Order, the 
Commission concluded that ISPs ``market and offer consumers separate 
services that are best characterized as (1) a broadband internet access 
service that is a telecommunications service; and (2) `add-on' 
applications, content, and services that are generally information 
services'' separate from the underlying broadband service. The 
Commission specifically found that ISPs market their BIAS ``primarily 
as a conduit for the transmission of data across the internet,'' with 
fixed providers distinguishing service offerings on the basis of 
transmission speeds, while mobile providers advertise speed, 
reliability, and coverage of their networks. Although the RIF Order 
contended that ``ISPs generally market and provide information 
processing capabilities and transmission capabilities together as a 
single service,'' it did not provide examples. Examples of ISP 
marketing today appear even more focused than in 2015 on the capability 
of BIAS to transmit information of users' choosing between internet 
endpoints, rather than its capability to generate, acquire, store, 
transform, process, retrieve, utilize, or make available that 
information. Such marketing emphasizes faster speeds aimed at 
connecting multiple devices, unlimited data for mobile service, and 
reliable and secure coverage. At the same time, ISPs appear to 
advertise data-related offerings as separate services that can be 
bundled with or added on to their BIAS services, including 
subscriptions to unaffiliated video and music streaming services, new 
devices, access to Wi-Fi hotspots, or mobile security apps. We seek 
comment generally on how BIAS offerings are advertised today. Have 
fixed or mobile ISPs changed their marketing or advertising of BIAS 
since 2018? We seek evidence and examples of how the BIAS market is 
shaped today, and particularly how it has changed in response to 
developments in consumers' perception about the essential nature of 
BIAS connections. How does the current marketing of BIAS by ISPs bear 
on our tentative determination that such service is a 
telecommunications service? We also seek comment on ways ISPs' 
advertising of bundled services and devices as ``add-ons'' to their 
BIAS offerings has evolved as a result of recent changes in the 
importance of BIAS to consumers. How do these additional offerings 
modify the underlying BIAS offered by the ISP, if at all?
    5. We further seek comment on the development of third-party 
services and devices that utilize BIAS. We believe that since the 2018 
reclassification of BIAS, and particularly as a result of the COVID-19 
pandemic, there is substantial market proliferation of third-party 
services and devices and that

[[Page 76050]]

consumers' use of these offerings significantly outweigh their use of 
ISPs' affiliated offerings. We seek comment on this observation. How 
have trends in third-party services and devices impacted consumer use 
of BIAS? In what ways have these services and devices driven demand for 
fixed and mobile BIAS?

B. Reclassification is Necessary To Ensure Internet Openness, Safeguard 
National Security, Protect Public Safety, and Support Other Public 
Interest Goals

    6. Given how essential BIAS is to consumers' daily lives, we 
believe that our proposed reclassification of BIAS as a 
telecommunications service is necessary to unlock tools the Commission 
needs to fulfill its objectives and responsibilities to safeguard this 
vital service. Critical among these is enabling the Commission to 
ensure that the internet is open and fair, including by establishing a 
national regulatory approach that would provide consistent protections 
for consumers and certainty for ISPs. We also believe that the proposed 
reclassification would enhance the Commission's ability to safeguard 
national security and protect public safety. Further, we anticipate 
that returning BIAS to its telecommunications service classification 
would provide us with better tools to address policy initiatives to 
protect consumers when they use communications services and support 
their ability to access BIAS, including through the Commission's 
universal service programs. We believe the RIF Order's reclassification 
of BIAS as an information service not only inhibits the Commission's 
ability to achieve these outcomes, but that its policy rationales 
failed to support that reclassification. Below, we seek comment on 
these views and on any other considerations bearing on the grounds for 
us to return to a telecommunications service classification of BIAS, 
including the impact of our proposed reclassification on small ISPs and 
other small entities. In seeking comment on potential reclassification, 
we also welcome the submission of economic analyses that weigh the 
costs and benefits of the Commission taking such action. We also invite 
commenters to identify whether there are any other regulatory 
frameworks administered by the Commission, not discussed below, that 
might be affected by our proposed reclassification, and seek comment on 
how such reclassification would affect those frameworks.
    7. Beyond these issues, we invite comment on additional public 
policy considerations we should examine in our analysis of BIAS 
classification. For instance, to what extent are there any reasonable 
reliance interests we should consider? We expect any commenters 
claiming reliance to submit evidence demonstrating the existence, 
magnitude, and reasonableness of any alleged reliance interests.
1. Ensuring Internet Openness
    8. In light of how essential BIAS connectivity is to consumers 
following the COVID-19 pandemic, we believe that the open internet must 
be protected to ensure consumers can use their BIAS connections in all 
the lawful ways they see fit. We tentatively conclude that 
reclassification of BIAS as a telecommunications service will allow the 
Commission to safeguard the open internet and seek comment on this 
tentative conclusion. As an initial manner, following Title II 
classification, the Commission could rely on its authority in sections 
201 and 202 of the Act to address practices that are unjust, 
unreasonable, or unreasonably discriminatory. Below, we also propose to 
reinstate rules that prohibit ISPs from blocking or throttling the 
information transmitted over their networks or engaging in paid or 
affiliated prioritization arrangements. Additionally, we propose to 
reinstate a general conduct standard that would prohibit practices that 
cause unreasonable interference or unreasonable disadvantage to 
consumers or edge providers. Our proposal would leave the existing 
transparency requirements undisturbed. The proposed rules would 
establish clear standards for ISPs to maintain internet openness and 
would give the Commission a solid basis on which to take enforcement 
action against conduct that prevents consumers from fully accessing all 
of the critical services available through the internet. We seek 
comment on this analysis. In particular, how would these rules ensure 
that consumers can continue to use their internet connections for 
healthcare, education, work, commerce, and civic engagement? What would 
be the potential impact on these uses if the open internet is not 
secured?
    9. We further believe reclassification would enable the Commission 
to establish a nationwide framework of open internet rules for ISPs. In 
both the 2015 Open Internet Order and the RIF Order, the Commission 
expressed concern that potentially inconsistent state laws could 
increase burdens for ISPs and hinder the broadband market. With the 
goal of avoiding this, the Commission, in each instance, attempted to 
establish a framework that would preempt any inconsistent state laws. 
However, by reclassifying broadband as a Title I service and 
eliminating the conduct rules established in the 2015 Open Internet 
Order, the RIF Order failed to achieve this goal, because the Mozilla 
court vacated the RIF Order's blanket preemption of inconsistent state 
laws, concluding that the Commission ``fail[ed] to ground its sweeping 
Preemption Directive . . . in a lawful source of statutory authority.'' 
Thus, instead of creating ``a uniform set of federal regulations,'' the 
RIF Order's hands-off approach to BIAS has led to the existence of 
state-by-state open internet requirements it sought to avoid. We remain 
concerned that differing state open internet requirements may be 
burdensome for ISPs, particularly small ISPs, thus hindering the 
broadband market, and at the same time, fail to ensure that all 
consumers are protected from conduct harmful to internet openness. We 
believe that reclassification will put our authority to preempt any 
inconsistent state laws on substantially stronger legal footing, 
thereby enabling the Commission to create a set of open internet 
standards that will apply nationwide. We seek comment on this analysis.
2. Safeguarding National Security and Preserving Public Safety
    10. We tentatively conclude that the demonstrated need to address 
national security and public safety concerns makes it necessary and 
timely to revisit the statutory classification of BIAS. The D.C. 
Circuit criticized the RIF Order for giving short shrift to the 
evidence of public safety concerns in the record before it. The RIF 
Remand Order (86 FR 994 (Jan. 7, 2021)), in declining to reclassify 
BIAS as a telecommunications service on that basis, largely dismissed 
such concerns as speculative. But developments in recent years have 
highlighted national security and public safety concerns arising in 
connection with the U.S. communications sector, ranging from the 
security risks posed by malicious cyber actors targeting network 
equipment and infrastructure to the loss of communications capability 
in emergencies through service outages. We believe it is now timely for 
us to reevaluate the classification of BIAS to ensure the Commission 
can use all of its capabilities to address threats to national security 
and public safety.
    11. National Security and Law Enforcement. We tentatively conclude 
that authority under applicable Title II provisions, reinforced by the 
Commission's existing authority, would

[[Page 76051]]

enhance the Commission's efforts to protect the national defense. The 
Commission's attention to national security is a responsibility that 
underlies its other statutory obligations, as evidenced by Congress's 
statement in the Communications Act that among the reasons it created 
the Commission was ``for the purpose of the national defense.'' This 
responsibility was affirmed by Presidential Policy Directive 21, which 
described how the FCC could, to the extent permitted by law, exercise 
its authority and expertise to identify and address vulnerabilities in 
the communications sector. We seek comment generally on how 
reclassification would advance the Commission's fulfillment of its 
national security responsibilities and how it specifically would affect 
the Commission's efforts, in coordination with other agencies, and with 
ISPs themselves, to protect the nation's communications networks from 
entities and equipment and services that pose threats to national 
security and law enforcement.
    12. We tentatively conclude that our proposed reclassification 
would enhance the Commission's ability to protect the nation's 
communications networks from entities that pose threats to national 
security and law enforcement pursuant to its authority under section 
214 of the Act, and we seek comment on this tentative conclusion. Under 
section 214, carriers must be authorized by the Commission to provide 
domestic and international telecommunications service in the United 
States. Section 214, however, applies to common carriers, and thus does 
not apply to BIAS under its current classification as an information 
service, potentially exposing the nation's communications networks to 
national security and law enforcement threats by entities providing 
BIAS. In the China Telecom Americas Order on Revocation and 
Termination, China Unicom Americas Order on Revocation, and Pacific 
Networks and ComNet Order on Revocation and Termination, the Commission 
extensively evaluated national security and law enforcement 
considerations raised by existing section 214 authorizations and 
determined, based on the record, that the present and future public 
interest, convenience, and necessity was no longer served by those 
carriers' retention of their section 214 authority. In particular, the 
Commission identified national security and law enforcement concerns 
with respect to those entities' access to Internet Points of Presence 
(PoPs) (usually located within data centers) and other harms in 
relation to the services provided by those entities pursuant to section 
214 authorization. The Commission concluded that China Telecom 
Americas' (CTA) provision of services pursuant to its section 214 
authority, ``whether offered individually or as part of a suite of 
services--combined with CTA's physical presence in the United States, 
CTA's ultimate ownership and control by the Chinese government, and 
CTA's relationship with its indirect parent [China Telecommunications 
Corporation], which itself maintains a physical presence in the United 
States--present unacceptable national security and law enforcement 
risks to the United States,'' and it reached similar conclusions in the 
other proceedings. We believe the same national security and law 
enforcement threats identified in those proceedings equally exist with 
respect to entities providing BIAS, and that reclassifying BIAS as a 
telecommunications service would allow the Commission to use its 
section 214 authority to address those threats and other threats to our 
communications networks. We seek comment on this analysis.
    13. We also seek comment on other ways the proposed 
reclassification would enhance the Commission's ability to address 
national security and law enforcement threats by entities providing 
BIAS. Are there other specific national security and law enforcement 
risks in connection with the provision of BIAS resulting from the 
current classification of BIAS as an information service? Have there 
been relevant and demonstrable changes with respect to how nation-
states have sought to exploit the technological convergence of 
broadband and other services that present vulnerabilities affecting the 
national defense? We ask commenters to provide detailed comments on any 
regulatory requirements designed to address such risks that would newly 
apply to these entities if the Commission were to reclassify BIAS as a 
telecommunications service. For instance, could the Commission prohibit 
ISPs from entering into internet traffic exchange arrangements with 
certain companies that operate data centers or other Internet Exchange 
Points in the U.S.? Would reclassification enable the Committee for the 
Assessment of Foreign Participation in the United States 
Telecommunications Services Sector to review telecommunications 
licenses or authorizations meeting appropriate thresholds of foreign 
ownership or control for national security and law enforcement 
concerns? Would reclassification increase law enforcement agencies' 
ability to seek lawful assistance, including identification and 
disruption of illegal activity, for investigations involving ISP 
networks? For mobile BIAS, would reclassification extend the foreign 
ownership restrictions for wireless common carriers that the Commission 
applies under section 310(b) of the Act and its implementing rules? In 
the absence of reclassification, does the Commission have other 
authority that it could use that is sufficient to protect the nation's 
communications networks against ISPs that pose national security and 
law enforcement threats? If so, we ask commenters to indicate the 
statutory authority and how the Commission could use such authority to 
ensure national security and law enforcement concerns are addressed.
    14. We also seek comment on how reclassification would support the 
Commission's efforts to safeguard the nation's communications network 
infrastructure from equipment and services that pose a security threat. 
Pursuant to its universal service authority in section 254 of the Act, 
its authority to regulate equipment in sections 302 and 303 of the Act, 
and new mandates established by Congress through the Secure and Trusted 
Communications Networks Act of 2019, as amended, and the Secure 
Equipment Act of 2021 to address communications equipment and service 
that poses an unacceptable risk to national security, the Commission 
has undertaken significant efforts to improve supply chain security. In 
particular, the Commission has: prohibited the use of universal service 
fund (USF) support to purchase or obtain any equipment or services 
produced or provided by companies posing a national security threat; 
prohibited the use of federal subsidies administered by the Commission 
and used for capital expenditures to provide advanced communications 
service to purchase, rent, lease, or otherwise obtain such equipment or 
services; created and maintained a list of communications equipment and 
services that pose an unacceptable risk to the national security 
(``covered equipment and services''); established the Secure and 
Trusted Communications Networks Reimbursement Program (Reimbursement 
Program) to reimburse the costs providers incur to remove, replace, and 
dispose of covered Huawei and ZTE equipment and services from their 
networks; and prohibited the authorization of equipment that poses a

[[Page 76052]]

threat and the marketing and importation of such equipment in the 
United States. We seek comment on how reclassification may allow the 
Commission to further these efforts. For instance, would 
reclassification give the Commission additional authority to restrict a 
larger class of entities from using equipment and services that pose a 
threat? Additionally, would reclassification give the Commission more 
robust authority to require more entities to remove and replace covered 
Huawei and ZTE communications equipment and services? Could the 
Commission prohibit the use of covered equipment or services in any 
network infrastructure that is used to route or transmit 
communications, including data centers and internet exchange 
facilities? Could we use the additional authority under Title II to 
prohibit carriers from interconnecting with other carriers who have a 
PoP within the U.S. and its territories that use such equipment and 
services? Are there other ways Title II authority could be used to 
address national security threats arising from equipment and services 
outside the scope of our prior actions? How does the Commission's role 
fit with that of other agencies that help to address potential security 
threats from foreign actors to the nation's communications network and 
equipment, and how would enhancements to the Commission's regulatory 
authority as a result of reclassification bolster that role?
    15. Cybersecurity. We believe that returning BIAS to its 
telecommunications service classification would reinforce the 
Commission's authority to support its efforts to enhance cybersecurity 
in the communications sector, and we seek comment on this tentative 
conclusion. Among such efforts are those pursuant to Presidential 
Policy Directive 21, which tasks the Commission with ``identifying 
communications sector vulnerabilities and working with industry and 
other stakeholders to address those vulnerabilities . . . [and] to 
increase the security and resilience of critical infrastructure within 
the communications sector. . . .'' The Commission is actively involved 
in federal interagency cybersecurity planning, coordination, and 
response activities. However, the current classification of BIAS limits 
the regulatory and operational actions that the Commission can take to 
address cyber incidents impacting the communications sector, as well as 
other critical infrastructure sectors. For example, the Commission has 
limited authority to require providers of non-Title II services (e.g., 
ISPs) to adopt cybersecurity standards or performance goals, which 
inhibits the Commission's ability to protect U.S. communications 
services and infrastructure from cyber-attacks and to ensure that 
communications devices and equipment do not pose security risks to 
other critical infrastructure sectors. While the Commission will 
continue to work closely with ISPs to secure their networks, 
reclassification of BIAS as telecommunications service would provide 
the Commission with the authority to act in the absence of voluntary 
action by ISPs or in cases of emergency or significant risk. We 
tentatively conclude that the proposed reclassification could address 
this issue by enhancing the Commission's cybersecurity authority, and 
we seek comment on this tentative conclusion.
    16. Another initiative is the Commission's inquiry into 
vulnerabilities threatening the security and integrity of the Border 
Gateway Protocol (BGP), which impacts ``the transmission of data from 
email, e-commerce, and bank transactions to interconnected Voice-over 
Internet Protocol (VoIP) and 9-1-1 calls.'' The Commission noted that 
``BGP's initial design, which remains widely deployed today, does not 
include security features to ensure trust in the information that it is 
used to exchange,'' which allows a bad network actor to ``deliberately 
falsify BGP reachability information to redirect traffic to itself or 
through a specific third-party network, and prevent that traffic from 
reaching its intended recipient.'' Would reclassification provide the 
Commission with additional authority to address BGP vulnerabilities, 
including, for example, by requiring providers to deploy solutions to 
address BGP vulnerabilities in the absence of voluntary action?
    17. In what other ways could reclassification bolster the 
Commission's authority to address cybersecurity in the communications 
sector? For instance, would it strengthen the Commission's ability to 
establish rules mandating that service providers implement 
cybersecurity practices and risk management plans? Similarly, would 
reclassification permit the Commission to consider cybersecurity in its 
annual inquiry under section 706 of the Telecommunications Act 1996? 
For example, could the Commission determine that only broadband 
services that meet certain cybersecurity standards constitute 
``advanced telecommunications capability''? To what extent would 
reclassification allow us to address threats related to the DNS, which 
enables domain names to resolve to the correct IP addresses, and other 
naming protocols? Could the Commission use Title II authority to 
require ISPs to block IP addresses that originate malicious software 
and ransomware? Would reclassification allow the Commission to mandate 
the adoption of Communications Security, Reliability, and 
Interoperability Council (CSRIC) best practices directed to ISPs and 
audit or enforce the implementation? Would it likewise enable the 
Commission to use Title II authority to require ISPs to implement or 
certify to their implementation of network security practices, such as 
those recommended in Executive Order 14028, the National Cybersecurity 
Strategy, or related cybersecurity measures recommended by the Deputy 
National Security Advisor, the Office of National Cyber Director, and 
other government agencies or intergovernmental agencies, such as the 
Federal Acquisition Security Council (FASC)? Would reclassification 
give the Commission sufficient authority to establish cybersecurity 
requirements for other components that facilitate communications 
between end points, such as internet exchange facilities and data 
centers that route communications and deliver applications? Could the 
Commission rely on authority in section 218 to require more 
comprehensive cyber incident reporting? Would reclassification permit 
the Commission to rely on a broader range of regulatory tools to ensure 
network and service reliability and better support an effective 911 and 
emergency preparedness efforts?
    18. Public Safety. We next tentatively conclude that reclassifying 
BIAS as a telecommunications service would enable the Commission to 
advance several public safety initiatives, and we seek comment on this 
tentative conclusion. As the Commission recognized in the RIF Remand 
Order, ``[a]dvancing public safety is one of our fundamental 
obligations.'' Indeed, the Commission is ``required to consider public 
safety by . . . its enabling act.'' The Mozilla court explained that 
when ```Congress has given an agency the responsibility to regulate a 
market such as the telecommunications industry that it has repeatedly 
deemed important to protecting public safety,' then the agency's 
decisions `must take into account its duty to protect the public.' '' 
We believe that the Commission's responsibility to address public 
safety is becoming increasingly important as the severity and frequency 
of natural

[[Page 76053]]

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

[[Page 76054]]

development of connected ambulance services for faster patient 
transport. BIAS connections are also playing a more important role in 
home safety and security as consumers increasingly purchase home 
security and monitoring systems that use connected devices to monitor, 
deter, and address theft, breaking and entering, and other home threats 
and BIAS connections are increasingly important for in-home monitoring 
of individuals who are elderly or disabled. We seek comment on the 
impact that reclassification may have on these and other public safety 
applications that rely on BIAS.
    24. Network Resiliency and Reliability. We tentatively conclude 
that reclassifying BIAS as a telecommunications service would enhance 
the Commission's ability to ensure the nation's communications networks 
are resilient and reliable, and we seek comment on this tentative 
conclusion. For instance, under the Commission's Network Outage 
Reporting System (NORS), qualifying communications providers are 
required to report to the Commission network outages that satisfy 
certain criteria, and the Commission uses this information to advance 
network resiliency and reliability. Because this reporting requirement 
has generally been limited to outages affecting voice services, the 
Commission has historically lacked reliable outage information for 
today's modern, essential broadband networks, which inhibits the 
Commission from fully ensuring the resiliency and reliability of those 
networks. Would reclassification support the Commission's ability to 
expand the scope of NORS to require ISPs to submit outage reports in 
response to service incidents that cause outages or the degradation of 
communications services, such as cybersecurity breaches, wire cuts, 
infrastructure damages from natural disaster, and operator errors or 
misconfigurations? Under rules implemented in 2022, Federal, State, 
Tribal and Territorial public safety agencies are eligible to obtain 
direct read-only access to outage information filed in NORS and the 
Disaster Information Reporting System (DIRS) for their jurisdictions. 
Would reclassification and enhanced NORS reporting afford public safety 
officials greater transparency during outages and disasters to assess 
the operational status of networks for dissemination of emergency 
information or to assess where support is needed? Would it support 
reliability efforts for calls and texts to 911 and the 988 Suicide and 
Crisis Lifeline? How, if at all, would reclassification allow us to 
further our goal to improve the reliability of wireless networks? Would 
broadband reclassification give the Commission additional authority to 
facilitate the use of Wi-Fi calling during emergencies or network 
outages, and if so, to what extent could the Commission apply 
reliability standards for Wi-Fi calling? Are there other ways that 
reclassification of BIAS would help us improve network resiliency and 
reliability, such as requirements for network upgrades and changes, 
rules relating to recovery from network outages, and improving our 
incident investigation and enforcement authority? What impact would any 
such actions have on ISPs, particularly small ISPs?
3. Protecting Consumers' Privacy and Data Security
    25. Since before the adoption of the 1996 Act, the Commission has 
consistently protected consumers from activities that undermine their 
ability to use communications services freely, fairly, and free from 
abuse by bad actors. As the communications industry has changed and the 
tactics used by bad actors have evolved, so too have the Commission's 
efforts. The current information service classification of BIAS, 
however, appears to inhibit the Commission's ability to fully ensure 
that consumers are protected from harmful conduct when they use 
communications services today and able to utilize these services in a 
fair and secure manner. We believe that classification of BIAS as a 
telecommunications service could support the Commission's efforts to 
protect consumers' privacy and data security and relieve them from 
unlawful robocalls and robotexts. We seek comment on this view.
    26. Privacy and Data Protection. We tentatively conclude that 
reclassification of BIAS as a telecommunications service would support 
the Commission's efforts to safeguard consumers' privacy and data 
security, and we seek comment on this tentative conclusion. 
Highlighting the Commission's important role in this area, earlier this 
year, Chairwoman Rosenworcel established the FCC Privacy and Data 
Protection Task Force to coordinate the agency's efforts to protect 
against and respond to consumer privacy infringements and data breaches 
by communications providers. The Commission's efforts will rely on, 
among other things, its authority under section 222 of the Act. That 
provision governs telecommunications carriers' protection and use of 
information obtained from their customers or other carriers, and 
calibrates the protection of such information based on its sensitivity. 
Congress imposed a duty on every telecommunications carrier to protect 
the confidentiality of its customers' proprietary information, 
according the category of customer proprietary network information 
(CPNI) the greatest level of protection.
    27. When the Commission classified BIAS as a telecommunications 
service in the 2015 Open Internet Order, it declined to forbear from 
applying section 222 of the Act, citing the need to protect consumers' 
privacy regardless of whether they communicate via broadband or 
telephone services. The RIF Order eliminated these statutory 
protections for broadband customers and surrendered the Commission's 
authority over ISPs' privacy and data protection practices. We believe 
that ISPs are situated to collect vast swaths of information about 
their customers, including personal information, financial information, 
and information regarding subscriber online activity. We further 
believe that consumers currently may not fully comprehend--and 
therefore may not be able to meaningfully consent to--ISPs' collection, 
processing, and disclosure of customer information, including 
potentially through the use of artificial intelligence models. We are 
also concerned that, absent statutory and regulatory requirements to do 
so, ISPs may not adopt adequate administrative, technical, physical, 
and procedural safeguards to protect their customers' data. Indeed, 
ISPs appear to continue to be attractive targets to hackers and other 
bad actors, putting BIAS customer data at significant risk of 
compromise. We seek comment on these views.
    28. Based on the foregoing, we once again propose herein not to 
forbear from section 222. Returning BIAS to its telecommunications 
service classification would bring ISPs back under the section 222 
privacy and data security framework, and therefore restore those 
protections for consumers. Additionally, classifying BIAS as a 
telecommunications service could support a consistent privacy and data 
security framework for voice and data services, which we believe 
consumers often subscribe to from one provider in a bundle and perceive 
to be part of the same service, particularly for mobile services. We 
seek comment on this proposed analysis.
    29. We further believe that, in addition to protecting consumers, 
reclassifying BIAS as a telecommunications service and declining to 
forbear from section 222 would protect information concerning entities 
that interact with ISPs. Section

[[Page 76055]]

222 places an obligation on telecommunications carriers to protect the 
confidentiality of the proprietary information of and relating to other 
telecommunication carriers (including resellers), equipment 
manufacturers, and business customers. We seek comment on how 
reclassification of BIAS will affect telecommunications carriers and 
equipment manufacturers who interact with ISPs, as well as the 
customers those entities serve, such as content creators and edge 
providers. Would these protections also have national security benefits 
by, for example, deterring ISPs from contracting with foreign companies 
that may pose a national security threat or are owned by, controlled 
by, or subject to the jurisdiction or direction of foreign adversaries? 
Would these section 222 requirements create a meaningful burden on 
ISPs, especially small ISPs?
    30. Robocalls and Robotexts. We seek comment on whether 
reclassification can serve to enhance the Commission's authority to 
support consumer privacy by combating illegal robocalls and robotexts. 
In recent years, the Commission has undertaken extensive efforts to 
address these invasive communications, including by establishing rules 
for call authentication, robocall mitigation, and call blocking; 
expanding requirements and restrictions to robotexts; and taking 
enforcement action against providers who originate and transport these 
communications. Yet bad actors continue to evolve their techniques to 
find new ways to interrupt consumers and perpetuate fraud. We note that 
many illegal robocalls are transmitted via VoIP networks and many 
illegal robotexts are transmitted by OTT messaging services (e.g., 
iMessage, WhatsApp, and Signal). We seek comment on the extent to which 
Title II classification would help the Commission in its efforts to 
combat these practices. Would Title II classification grant the 
Commission oversight to reach a larger class of entities, particularly 
for messages and calls delivered via broadband networks? For example, 
to the extent robotext scams include links to spoofed websites designed 
to defraud consumers, would reclassification allow us to require that 
ISPs block traffic to IP addresses associated with those websites? 
Would reclassification allow the Commission to apply new requirements 
and restrictions beyond what it can achieve under the sources of 
authority the Commission has relied on to date for its robocall and 
robotext actions? If so, how? Are there other ways in which 
reclassification would help the Commission combat illegal robocalls and 
robotexts? How would this affect ISPs, especially small ISPs?
4. Supporting Access to Broadband Internet Access Service
    31. From the Commission's inception, it has played a critical role 
in facilitating the proliferation of communications networks and 
ensuring that consumers have access to the services these networks 
provide. While these efforts are crucial to the Commission's mission, 
we believe that the information service classification of BIAS has 
limited the Commission's efforts to achieve these goals for the 
communications service that has become fundamental to consumers' 
everyday lives. Classifying BIAS as a telecommunications service will 
enable the Commission to better support the deployment of wireline and 
wireless infrastructure, advance universal service, and increase the 
accessibility of communications networks. We seek comment on this 
tentative conclusion. We also seek comment on whether, and how, we 
could leverage our proposed reclassification in other proceedings to 
further encourage access to BIAS by all consumers.
    32. Wireline and Wireless Infrastructure. We seek comment on the 
public policy impact of our proposed reclassification of BIAS on the 
Commission's goals to support investment in and deployment of wireline 
and wireless infrastructure. For example, section 224(b) of the Act 
grants the Commission clear authority to regulate the rates, terms, and 
conditions of pole attachments by a cable television system or provider 
of telecommunications service. Since 2011, the Commission has 
undertaken a series of reforms with the goal of improving access to 
poles to, among other things, help speed the deployment of broadband 
infrastructure. However, in the RIF Order, the Commission effectively 
eliminated section 224 pole attachment rights of broadband-only 
providers as a result of its classifying broadband as an information 
service. In 2020, following the Mozilla court's direction that the 
Commission ``grapple with the lapse in legal safeguards'' for 
broadband-only providers that resulted from the RIF Order, the 
Commission concluded that while there were potentially adverse effects 
to this class of providers resulting from the loss of pole attachment 
rights, the benefits of returning BIAS to an information service 
classification outweighed any drawbacks. We tentatively conclude that 
the Commission erred in its 2020 analysis and believe that 
reclassifying BIAS as a telecommunications service will help support 
the Commission's goals to facilitate broadband deployment, and we seek 
comment on this tentative conclusion. How has the market for broadband-
only ISPs changed since 2015, in particular for new entrants and those 
ISPs seeking infrastructure access via pole attachments? What effect 
has the Commission's elimination of pole attachment rights for 
broadband-only ISPs had on the deployment of broadband, particularly to 
unserved or underserved areas? How would reinstatement of pole 
attachment rights benefit or burden ISPs, particularly small ISPs? As 
the Commission has recognized, Congress recently has made available 
unprecedented levels of federal funding for broadband buildout, 
including a variety of programs administered by the National 
Telecommunications and Information Administration (NTIA), including the 
Broadband, Equity, Access, and Deployment Program (BEAD), the State 
Digital Equity Capacity Grant Program and its federal counterpart, the 
Middle Mile Infrastructure Grant Program, and the Tribal Broadband 
Connectivity Program. We believe that ensuring the protections of 
section 224 are restored to all ISPs, including broadband-only 
providers, will pave the way for quicker and less expensive broadband 
deployment, thereby enabling that funding to go as far as possible. We 
seek comment on that view.
    33. We also seek comment on how reclassifying BIAS as a 
telecommunications service and classifying mobile BIAS as a commercial 
mobile service will impact the Commission's authority over wireless 
infrastructure. Although section 332(e)(7) of the Act, and Commission 
interpretation thereof, regulate state and local authority over the 
placement, construction, and modification of personal wireless service 
facilities, are there ways in which classifying broadband as a 
telecommunications service can further advance the Commission's goals 
to ``improve service quality and lower prices for consumers'' for 
broadband access? Finally, we also seek comment on how reclassification 
of BIAS as a telecommunications service may affect the Commission's 
application of the Act's preemption frameworks in sections 253(d) and 
332(c)(3) regarding infrastructure used to provide broadband-only 
services.
    34. Universal Service. We tentatively conclude that classifying 
BIAS as a telecommunications service will strengthen our policy 
initiatives to

[[Page 76056]]

support the availability and affordability of BIAS through USF 
programs, and we seek comment on this tentative conclusion. The 
Communications Act defines universal service as an ``evolving level of 
telecommunications services,'' and charges the Commission with 
periodically establishing such services. BIAS is now clearly an 
essential service upon which consumers rely, and we believe that 
placing BIAS outside of the Commission's Title II authority weakens the 
Commission's ability to deliver universal service support for that 
essential service, especially in rural areas. We seek comment on this 
view. In Mozilla, the court found that the Commission failed to explain 
how its universal service authority over telecommunications carriers in 
section 254(e) of the Act could extend to ISPs without BIAS classified 
as a telecommunications service for purposes of the Lifeline program, 
and it remanded the issue back to the Commission. Although the 
Commission conceded in the RIF Remand Order that under a Title I 
regime, BIAS could not be a section 254(c) supported service because 
section 254(c) defines universal service as an ``evolving level of 
telecommunications services,'' it nevertheless asserted a theory under 
section 254(e) to enable Lifeline support for BIAS offered by eligible 
telecommunications carriers (ETCs), similar to the theory under which 
the Commission has funded broadband-capable networks through the High-
Cost Program.
    35. We tentatively conclude that reclassifying BIAS as a 
telecommunications service will bolster the Commission's ability to 
provide High-Cost and low-income support, and seek comment on this 
tentative conclusion. Among other things, we believe that reclassifying 
BIAS as a telecommunications service could eventually allow broadband-
only providers to once again participate in the Lifeline program, and 
would give the Commission the ability to adjust certain service 
obligations for ETCs. We further believe that reclassifying BIAS as a 
telecommunications service would enhance our ability to connect low-
income households in rural areas, including through the Link Up 
program, which provides support to reduce connection charges for 
eligible residents of Tribal lands who subscribe to telecommunications 
service from a telecommunications carrier receiving high-cost support. 
We seek comment on these views, including how this may impact ISPs, 
especially smaller ISPs and ISPs serving rural areas.
    36. We also tentatively conclude that classification of BIAS as a 
telecommunications service protects public investments in BIAS access 
and affordability. Since the inception of BIAS, the Commission, along 
with other federal and state entities, have made significant 
investments to ensure that BIAS networks reach all consumers and are 
affordable, particularly through the Affordable Connectivity Program. 
These efforts increased dramatically since the beginning of the COVID-
19 pandemic as Congress directed a large influx of funding in broadband 
deployment and consumer access. We believe our proposed 
reclassification will enable the Commission to protect these 
investments on an ongoing basis by enabling the Commission to ensure 
the connections supported by these funds align with the other policy 
goals we detail here: advancing national security and public safety and 
protecting consumers. In doing so, we believe we can ensure these 
connections continue to achieve their primary purpose of benefiting 
consumers. We seek comment on these views.
    37. Multiple-Tenant Environments (MTEs). We seek comment on how 
reclassification may impact the Commission's authority to take action 
to promote tenant choice and competition in the provision of broadband 
services to the benefit of those who live and work in MTEs. The 
Commission has long prohibited agreements between providers of certain 
communications services and MTE owners that grant the provider 
exclusive access and rights to provide service to the MTE. In 2019, the 
Commission released a Notice of Proposed Rulemaking that sought comment 
about these practices and others that could have the effect of 
dampening competition or deployment, and on the Commission's authority 
to target different kinds of entities, including telecommunications 
providers, MVPDs, and broadband-only providers. In 2022, relying on 
sections 201 and 628 of the Act, the Commission adopted rules to 
prohibit telecommunications carriers and MVPDs from entering into 
exclusive and graduated revenue sharing agreements, and to require that 
telecommunications carriers and MVPDs include disclaimers on marketing 
materials distributed to MTE tenants that inform tenants of the 
existence of an exclusive marketing arrangement, among other things. 
The Commission determined that it was appropriate to ``proceed 
incrementally,'' but cautioned that it would ``continue to monitor 
competition in MTEs to determine whether we should alter the scope of 
our rules to cover other providers,'' including broadband-only 
providers. We seek comment whether reclassification of BIAS would 
provide additional authority for the Commission to further promote 
competition and consumer choice in communications services in MTEs.
    38. Free Expression. We believe BIAS connections promote diversity 
of viewpoints by allowing traditionally disadvantaged communities to 
express themselves outside of traditional media. Social media websites 
and other platforms particularly have become important platforms for 
free expression, political engagement, and social activism. Indeed, 
Congress has recognized that ``the internet offer[s] a forum for a true 
diversity of political discourse, unique opportunities for cultural 
development, and myriad avenues for intellectual activity.'' 
Accordingly, we invite comment on any free expression-related 
considerations associated with classifying BIAS as a telecommunications 
service and any benefits or drawbacks of such classification for 
relevant communications.
    39. Digital Equity. The Commission, as part of its continuing 
effort to advance digital equity for all, including people of color, 
persons with disabilities, persons who live in rural or Tribal areas, 
and others who have been historically underserved, marginalized, and 
adversely affected by persistent poverty and inequality, invites 
comments on any equity-related considerations and benefits (if any) 
that may be associated with the proposals and issues discussed herein. 
Specifically, we seek comment on how our proposals may promote or 
inhibit advances in diversity, equity, inclusion, and accessibility, as 
well as the scope of the Commission's relevant legal authority.
5. Access for Persons With Disabilities
    40. We seek comment on how reclassification may impact the 
Commission's authority to ensure that individuals with disabilities can 
communicate using BIAS. People with disabilities ``increasingly rely 
upon internet-based video communications, both to communicate directly 
(point-to-point) with other persons who are deaf or hard of hearing who 
use sign language, and through video relay service.'' Section 716 of 
the Act requires that interoperable video conferencing services be 
accessible, regardless of how those services are transmitted--by 
broadband or otherwise--and also requires that text messaging, email,

[[Page 76057]]

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

C. Scope of Reclassification

    44. Broadband Internet Access Service. We propose to continue using 
the definition of ``broadband internet access service'' as a ``mass-
market retail service by wire or radio that provides the capability to 
transmit data to and receive data from all or substantially all 
internet endpoints, including any capabilities that are incidental to 
and enable the operation of the communications service, but excluding 
dial-up internet access service,'' as well as ``any service that the 
Commission finds to be providing a functional equivalent of the service 
described [in the definition] or that is used to evade the protections 
set forth'' in part 8 of the Commission's rules. The Commission has 
chiefly retained this definition since it first defined broadband 
internet access service in the 2010 Open Internet Order (76 FR 60754 
(Sept. 30, 2011)). We seek comment on whether there is any reason to 
depart from this definition of broadband internet access service.
    45. Similarly, we propose to continue to define ``mass market'' as 
the Commission did in the 2015 Open Internet Order and RIF Order--``a 
service marketed and sold on a standardized basis to residential 
customers, small businesses, and other end-user customers such as 
school and libraries.'' In addition to including broadband internet 
access service purchased with support from the E-Rate, Lifeline, and 
Rural Health Care programs, as well as any broadband internet access 
service offered using networks supported by the Connect America Fund or 
the Rural Digital Opportunity Fund, we propose that such ``mass 
market'' services would also include any broadband internet access 
service purchased with support from the Affordable Connectivity Program 
and the Connected Care Pilot Program. Consistent with the 2015 Open 
Internet Order and RIF Order, the proposed definition excludes 
enterprise service offerings, which are typically offered to larger 
organizations through customized or individually negotiated 
arrangements, and special access services. We seek comment on our 
proposal. Should we apply the modified definition of broadband internet 
access service used for the broadband label requirement in this context 
to make clear that enterprise services are excluded even when they are 
supported by the Commission's broadband access and affordability 
programs?
    46. We also propose to remain consistent with the Commission's 
conclusions in prior Orders to include in the term ``broadband internet 
access service'' those services provided over any technology platform, 
including but not limited to wire, terrestrial wireless (including 
fixed and mobile wireless services using licensed or unlicensed 
spectrum), and satellite. We seek comment on this proposal. We continue 
to intend broadband internet access service ``to cover the entire 
universe of internet access services at issue in the Commission's prior 
broadband classification decisions, as well as all other broadband 
internet access services offered over other technology platforms that 
were not addressed by prior classification orders.'' As in prior 
orders, we propose that ``fixed''

[[Page 76058]]

broadband internet access service refers to a broadband internet access 
service that serves end users primarily at fixed endpoints using 
stationary equipment, such as the modem that connects an end user's 
home router, computer, or other internet access device to the internet, 
and encompasses the delivery of fixed broadband service over any 
medium, including various forms of wired broadband service (e.g., 
cable, DSL, fiber), fixed wireless broadband service (including fixed 
services using unlicensed spectrum), and fixed satellite broadband 
service. Likewise, we propose that ``mobile'' broadband internet access 
service refers to a broadband internet access service that serves end 
users primarily using mobile stations, and includes, among other 
things, services that use smartphones or mobile-network-enabled tablets 
as the primary endpoints for connection to the internet, as well as 
mobile satellite broadband service. Consistent with the existing 
definition, we propose to include within the definition of broadband 
internet access service any such service, regardless of whether the ISP 
leases or owns the facilities used to provide the service. We seek 
comment on our proposals.
    47. We also propose that to the extent coffee shops, bookstores, 
airlines, private end-user networks such as libraries and universities, 
and other businesses acquire broadband internet access service from an 
ISP to enable patrons to access the internet from their respective 
establishments, provision of such service by the premise operator would 
not itself be considered BIAS unless it was offered to patrons as a 
retail mass-market service. Likewise, when a user employs, for example, 
a wireless router or a Wi-Fi hotspot to create a personal Wi-Fi network 
that is not intentionally offered for the benefit of others, we believe 
he or she is not offering a broadband internet access service under our 
proposed definition, because the user is not marketing and selling such 
service to residential customers, small businesses, and other end-user 
customers. Such proposed findings are consistent with the manner in 
which the Commission has historically defined broadband internet access 
service, and we seek comment on any changed circumstances that would 
justify a different outcome.
    48. We seek comment on whether there are other types of services we 
should address in defining the scope of broadband internet access 
service. For example, with respect to 5G deployments, new network 
architectures and uses of the technology are emerging, including some 
that offer both private and public 5G connectivity, like 5G Internet of 
Things (IoT). We seek comment on how we should view these services for 
purposes of defining broadband internet access service--are these types 
of services best viewed as enterprise services excluded from the 
definition of broadband internet access service or should they be 
treated as non-BIAS data services?
    49. Non-BIAS Data Services. We also seek comment on whether to 
continue excluding non-BIAS data services (formerly ``specialized 
services'') from the scope of broadband internet access service. In the 
2015 Open Internet Order, the Commission explained that certain 
services offered by ISPs that share capacity with broadband internet 
access service over ISPs' last-mile facilities were not broadband 
internet access service and provided examples and characteristics of 
services that, at that time, likely fit within this category of non-
BIAS data services. The Commission defined characteristics of these 
services, explaining that they (1) are not used to reach large parts of 
the internet; (2) are not a generic platform, but rather a specific 
``application level'' service; and (3) use some form of network 
management to isolate the capacity used by these services from that 
used by broadband internet access service. We seek comment on whether 
these characteristics still appropriately describe non-BIAS data 
services. Are there any other characteristics of such services on which 
we should rely? Are these still appropriate examples of data services 
that are outside the scope of broadband internet access service? Have 
the distinctions between mass-market retail and non-BIAS data services 
changed, particularly from a consumer, technical, or other perspective, 
to warrant reconsideration of this exclusion?
    50. We also tentatively conclude that we should maintain the 2015 
Open Internet Order's approach to continue closely monitoring the 
development of non-BIAS data services. In the 2015 Open Internet Order, 
the Commission emphasized that non-BIAS data services might still be 
subject to enforcement action if the Commission determined that: (1) a 
particular service is providing the functional equivalent of BIAS; (2) 
an ISP claimed or attempted to claim that a service that is the 
equivalent of BIAS is a non-BIAS data service not subject to any rules 
that would otherwise apply; or (3) a non-BIAS data service offering is 
undermining investment, innovation, competition, and end-user benefits. 
We are especially concerned about activities that may undermine 
national security and public safety, consumers' use of broadband 
internet access service, and the ability of consumers to access 
broadband internet access service. We also share the Commission's 
concern in the 2015 Open Internet Order ``that over-the-top services 
offered over the internet are not impeded in their ability to compete 
with other data services.'' We seek comment on our proposed approach.
    51. Internet Traffic Exchange. We next tentatively conclude that 
broadband internet access service, as we propose to define it, includes 
arrangements for the exchange of internet traffic by an edge provider 
or an intermediary with the ISP's network, referred to as internet 
peering, traffic exchange or interconnection, to the extent they 
provide the ``capability to transmit data to and receive data from all 
or substantially all internet endpoints . . . [and] enable the 
operation of the communications service.'' We seek comment on this 
position. As the Commission explained in 2015, ``[t]he representation 
to retail customers that they will be able to reach `all or 
substantially all internet endpoints' necessarily includes the promise 
to make the interconnection arrangements necessary to allow that 
access'' and ``the promise to transmit traffic to and from those 
internet end points back to the user.'' We tentatively conclude that 
the Commission's findings and rationale regarding internet traffic 
exchange in the 2015 Open Internet Order--that such ``edge service'' is 
derivative of broadband internet access service and constitutes the 
same traffic--remain valid, and we seek comment on our tentative 
conclusion. We observe that the RIF Order does not appear to dispute 
the Commission's previous conclusion that broadband internet access 
service includes this ``edge service,'' and instead determined that 
internet traffic exchange arrangements were appropriately regulated as 
an information service by virtue of its conclusion that broadband 
internet access service is an information service. We seek comment on 
whether there are circumstances under which ``edge service'' would not 
be best characterized as a part of broadband internet access service, 
and how commenters would characterize that service, given the Verizon 
court's conclusion that, in addition to the retail service provided to 
consumers, ``broadband providers furnish a service to edge providers, 
thus undoubtedly functioning as edge providers' `carriers.' '' We seek 
comment on the Verizon court's characterization of broadband internet 
access service in

[[Page 76059]]

relation to service provided to both consumers and edge providers. How, 
if at all, has edge service changed in relation to broadband internet 
access service? Are there any grounds to depart from the Commission's 
prior treatment of edge service and edge providers as a ``derivative'' 
service of broadband internet access service?
    52. We also seek comment on whether we should exclude any 
particular services or functions from the definition of broadband 
internet access service. For example, should we exclude virtual private 
network (VPN) services, web hosting services, and/or data storage 
services from the scope of broadband internet access service? For 
purposes of this NPRM, ``data storage services'' refers to the 
provision of access to data storage platforms. The term is distinct 
from ``caching,'' which involves the temporary storage of data for 
purposes of delivering content to specific endpoints. While the 
Commission has previously excluded content delivery networks (CDNs) and 
internet backbone services, including transit arrangements, we seek 
comment whether a different approach may be warranted because these 
services are integral to transmitting data and delivering 
communications to internet endpoints, thus falling within the proposed 
definition of ``broadband internet access service.'' We observe that 
these services directly or indirectly provide data on behalf of their 
clients. For example, while VPN servers reflect one end-point of an 
underlying communication stream, they act as a launching pad to forward 
traffic to the destination identified by the user. We seek comment on 
this proposed analysis. Do these services fall within the scope of 
broadband internet access service, as we propose to define it?

D. Classifying Broadband Internet Access Service as a 
Telecommunications Service

    53. The 1996 Act enacted the ``telecommunications service'' and 
``information service'' definitional frameworks, and since that time, 
the Commission and courts have grappled with the classification of 
internet access services as technology and the communications 
marketplace have evolved and the internet has become essential to our 
daily lives. Courts have long recognized the Commission's authority to 
interpret and implement the Communications Act of 1934. Both the 2015 
Open Internet Order and the RIF Order recognized this authority. And on 
review of each of those decisions, the D.C. Circuit accepted the 
Commission's authority to make classification decisions, even when this 
involved a change in course. In addressing a prior Commission decision 
classifying BIAS, in Brand X, the Supreme Court confirmed not only that 
an administrative agency can change its interpretation of an ambiguous 
statute, but that it ``must consider varying interpretations and the 
wisdom of its policy on a continuing basis, for example in response to 
. . . a change in administrations.'' In light of this precedent, we 
believe that we not only have the authority to classify BIAS, but that 
we must reevaluate the 2018 information service classification in 
consideration of the policy rationales and marketplace developments we 
have described above as warranting a return to the telecommunications 
service classification. We seek comment on this view.
    54. In evaluating the classification of BIAS, three definitional 
terms are relevant. First, the Act defines ``telecommunications'' as 
``the transmission, between or among points specified by the user, of 
information of the user's choosing, without change in the form or 
content of the information as sent and received.'' Second, the Act 
defines ``telecommunications service'' as ``the offering of 
telecommunications for a fee directly to the public, or to such classes 
of users as to be effectively available directly to the public, 
regardless of the facilities used.'' Finally, the Act defines 
``information service'' as ``the offering of a capability for 
generating, acquiring, storing, transforming, processing, retrieving, 
utilizing, or making available information via telecommunications . . . 
, but does not include any use of any such capability for the 
management, control, or operation of a telecommunications system or the 
management of a telecommunications service.'' When Congress enacted the 
definitions of ``telecommunications service'' and ``information 
service'' in the 1996 Act, it substantially incorporated the ``basic'' 
and ``enhanced'' service classifications from the Computer Inquiries 
line of decisions. Under the Computer Inquiries, facilities-based 
telephone companies were obligated to offer the transmission component 
of their enhanced service offerings--including broadband internet 
access service offered via DSL--to unaffiliated enhanced service 
providers on nondiscriminatory terms and conditions pursuant to tariffs 
or contracts governed by Title II. Thus, there is no disputing that 
until 2005, Title II applied to the transmission component of DSL 
service. Further, because the statutory definitions substantially 
incorporated the Commission's terminology under the Computer Inquiries, 
Commission decisions regarding the distinction between basic and 
enhanced services--in particular, decisions regarding features that are 
``adjunct to basic'' services--are relevant to our analysis, as 
discussed further below, because the Commission's definition of 
``adjunct to basic'' services has been instrumental in determining 
which functions fall within the ``telecommunications systems 
management'' exception to the ``information service'' definition.
    55. We tentatively conclude that both a reasonable and the best 
reading of these definitional provisions supports classifying BIAS as a 
telecommunications service. As explained in the 2015 Open Internet 
Order, ``the critical distinction between a telecommunications and an 
information service turns on what the provider is `offering.' '' If the 
provider is offering ``telecommunications'' to the public for a fee, 
then the service is necessarily a telecommunications service. Thus, in 
2015, the Commission interpreted these terms to classify BIAS as a 
telecommunications service, finding that BIAS, as then offered, is 
sufficiently independent from the information services that ISPs may 
also offer. Consistent with the Commission's finding in 2015, we 
believe that BIAS is best understood as making available high-speed 
access to the internet (that may be bundled with other applications and 
functions)--and therefore that it provides telecommunications--and that 
ISPs offer BIAS to the public for a fee. Accordingly, we tentatively 
conclude the best reading of the Act is that BIAS, as offered to and 
understood by consumers today, is a telecommunications service rather 
than an information service. We seek comment on this tentative 
conclusion.
    56. Broadband Internet Access Service Provides Telecommunications. 
We tentatively conclude that BIAS provides ``telecommunications'' as it 
is defined under the Act, and seek comment on this conclusion. As 
discussed above, the Act defines ``telecommunications'' as ``the 
transmission, between or among points specified by the user, of 
information of the user's choosing, without change in the form or 
content of the information as sent and received.'' As discussed above, 
we believe that users rely on BIAS to transmit ``information of the 
user's choosing,'' ``between or among points specified by the user.'' 
We further believe, as the Commission has previously found, that the 
term ``points

[[Page 76060]]

specified by the user'' is ambiguous, and that ``uncertainty concerning 
the geographic location of an endpoint of communication is irrelevant 
for the purpose of determining whether a broadband internet access 
service is providing `telecommunications.' '' We also contend that 
these points are not constrained to be defined in one particular 
format. They may be in the form of an IP address or perhaps more 
commonly associated with fully qualified domain names resolved by the 
DNS, such as www.example.com. This is consistent with the Commission's 
prior deduction that while consumers often do not know the precise 
physical or virtual location of the edge provider or other user they 
want to access, ``there is no question that users specify the end 
points of their internet communications'' and ``would be quite upset if 
their internet communications did not make it to their intended 
recipients or the website addresses they entered into their browser 
would take them to unexpected web pages.'' As the Commission explained, 
``numerous forms of telephone service qualify as telecommunications 
even though the consumer typically does not know the geographic 
location of the called party,'' including cell phone service, toll free 
800 service, and call bridging service. Likewise, the fact that DNS may 
resolve the same domain name to one or more virtual locations (e.g., 
due to load balancing), just as in the toll free arena a single 
telephone number may route to multiple locations, ``does not transform 
that service to something other than telecommunications.'' In the RIF 
Order, the Commission conceded that at least some telecommunications 
are used as an input into BIAS and ``an ISP makes use of 
telecommunications'' in the provision of BIAS, but found that it ``need 
not further address the scope of the `telecommunications' definition in 
order to justify [its] classification of broadband internet access 
service,'' and did not further address the Commission's interpretation 
and application of the ``telecommunications'' definition in the 2015 
Open Internet Order. We seek comment on the analysis that BIAS provides 
``telecommunications,'' including whether there is any reason to depart 
from it.
    57. We further tentatively conclude that there is no change or 
modification to the form or content of information during transmission, 
and seek comment on this analysis. In 2015, the Commission explained 
that ``the packet payload (i.e., the content requested or sent by the 
user) is not altered by the variety of headers that a provider may use 
to route a given packet'' and therefore, the ``form and content of the 
information'' is the same when an IP packet is sent by the sender as 
when the same packet is received by the recipient. We seek comment on 
whether this analysis of packet transmission remains accurate and 
relevant today. Have there been any developments or changes in how BIAS 
is provisioned that would cause us to reconsider this analysis? How do 
ISPs transmit data information from one point on the network to 
another? How does it differ from how PSTN calls are transmitted today?
    58. Broadband Internet Access Service is a Telecommunications 
Service. Here, we propose to build off our tentative conclusion that 
BIAS provides telecommunications and our belief that current factual 
circumstances show that consumers perceive BIAS as a standalone 
offering used to access third-party services and, as such, ISPs 
routinely market BIAS widely to the general public. Viewed together, 
ISPs would necessarily offer BIAS ``for a fee directly to the public, 
or to such classes of users as to be effectively available directly to 
the public, regardless of the facilities used,'' and therefore we 
tentatively conclude that BIAS is a telecommunications service as 
defined in the Act. We seek comment on our tentative conclusion and 
assessment. We further propose to find that the implied promise to make 
arrangements for exchange of internet traffic as part of the BIAS 
offering does not constitute a private carriage arrangement, and that 
the rationale adopted in the 2015 Open Internet Order remains 
persuasive. We seek comment on this approach. How do internet traffic 
arrangements with negotiated terms differ from mass-market services 
offered to the public? Have there been any significant developments in 
the internet traffic exchange market since 2015 that would cause us to 
reconsider these proposals? We observe that in 2015, the Commission 
concluded that ``some individualization in pricing or terms is not a 
barrier to finding that a service is a telecommunications service,'' 
and the RIF Order does not appear to disturb this finding. We seek 
comment on this analysis.
    59. Broadband Internet Access Service Is Not Best Classified an 
Information Service. We tentatively conclude that, as offered today, 
BIAS is not an information service under the best reading of the Act. 
The Act defines an information service as the offering ``of a 
capability for generating, acquiring, storing, transforming, 
processing, retrieving, utilizing, or making available information via 
telecommunications.'' We believe that the Commission's reasoning in the 
RIF Order--that because BIAS has the ``capability'' to be used to 
engage in the activities within the information service definition, it 
is best interpreted as an information service--is flawed. Concluding 
that BIAS ``is an information service irrespective of whether it 
provides the entirety of any end user functionality or whether it 
provides end user functionality in tandem with edge providers,'' as the 
Commission did in the RIF Order, fails to recognize the relationship of 
BIAS transmission services to other functions, which may be offered by 
either the ISP or a third party of the end user's choice. Logically, 
under the framework set out in the RIF Order, even traditional switched 
telephone service would be classified as an information service, as it 
provides customers with the ability to make information available to 
others (e.g., public service announcements), retrieve information from 
others, and process and utilize stored information from others (e.g., 
by interacting with a call menu). We tentatively conclude that the best 
and more reasonable interpretation of the statutory language is that 
BIAS is a telecommunications service, while the applications that run 
over BIAS either constitute distinct information services or fall 
within the exception to the information service definition for 
capabilities used ``for the management, control, or operation of a 
telecommunications system or the management of a telecommunications 
service.'' We seek comment on this proposed analysis.
    60. We tentatively conclude that companion services, such as DNS 
and caching, when provided with BIAS, fit within the telecommunications 
systems management exception to the definition of ``information 
service,'' and therefore when these services are provided with BIAS, 
they do not convert BIAS into an information service. We seek comment 
on this tentative conclusion. The Act's telecommunications systems 
management exception excludes from the definition of ``information 
service'' ``any use of any such capability for the management, control, 
or operation of a telecommunications system or the management of a 
telecommunications service.'' In the 2015 Open Internet Order, the 
Commission concluded that when DNS and caching are offered with BIAS, 
they ``either fall within the telecommunications systems management 
exception or are separate offerings that are not inextricably 
integrated with broadband internet

[[Page 76061]]

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

[[Page 76062]]

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

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

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

[[Page 76063]]

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

[[Page 76064]]

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

F. Preemption of State and Local Regulation of Broadband Service

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

II. Proposed Forbearance

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

[[Page 76065]]

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

A. Forbearance Framework

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

B. Proposed Forbearance

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

[[Page 76066]]

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

[[Page 76067]]

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

III. Proposed Open Internet Rules

    100. Today we propose to return to the basic framework the 
Commission adopted in 2015 to protect the openness of the internet. In 
2015, consistent with its longstanding policy approach to protect 
internet openness through basic conduct ``rules of the road,'' the 
Commission adopted a set of carefully tailored conduct rules to prevent 
specific practices harmful to an open internet--blocking, throttling, 
and paid prioritization--as well as a strong standard of conduct 
designed to prevent deployment of new practices that would harm 
internet openness, and enhancements to the existing transparency rule. 
In the RIF Order, the Commission broke with this longstanding approach 
by altogether eliminating the open internet conduct rules, which we 
believe left consumers exposed to behavior that can hinder their 
ability to access the open internet. Below, we propose to reinstate 
straightforward, clear rules that are designed to prevent ISPs from 
engaging in practices harmful to consumers, competition, and public 
safety, and that would provide the basis for a national regulatory 
approach toward BIAS.
    101. We first propose to reinstate the rules adopted in the 2015 
Open Internet Order that prohibit ISPs from blocking, throttling, or 
engaging in paid or affiliated prioritization arrangements. We 
similarly propose to reinstate the general conduct standard adopted in 
the 2015 Open Internet Order, which would prohibit practices that cause 
unreasonable interference or unreasonable disadvantage to consumers or 
edge providers. Finally, with regard to transparency, we propose to 
retain the current disclosures, and we seek comment on the means of 
disclosure, the interplay between the transparency rule and the 
broadband label requirements, and any additional enhancements or 
changes we should consider. The rules we propose today are consistent 
with numerous other steps the Commission has taken to ensure that this 
country has access to affordable, competitive, secure, and reliable 
broadband. The proposed rules would establish clear standards for ISPs 
to maintain internet openness and would give the Commission a solid 
basis on which to take enforcement action against conduct that prevents 
people from fully accessing all of the critical services available 
through the internet.

A. Need for Rules

    102. We believe that the rules we propose today will establish a 
baseline that the Commission can use to prevent and address conduct 
that harms consumers and competition when it occurs. Above, we express 
our belief that consumers perceive and use BIAS as an essential 
service, critical to accessing healthcare, education, work, commerce, 
and civic engagement. Because of its importance, we further believe it 
is paramount that consumers be able to use their BIAS connections 
without degradation due to blocking, throttling, paid prioritization, 
or other harmful conduct. The rules we propose today are designed to 
ensure these protections. Below, we seek comment on particular issues 
that inspire the need for these rules, including protecting public 
safety, ISPs' incentives and abilities to harm internet openness, the 
effects of harmful conduct on consumer demand and edge innovation, 
reliance on the Commission's communications sector expertise to address 
harmful conduct, and how the RIF Order's oversight framework addresses 
harmful conduct. We invite commenters to submit economic analyses that 
weigh the costs and benefits of the Commission potentially adopting 
open internet rules.
1. Promoting Innovation and Free Expression
    103. In the 2015 Open Internet Order, the Commission found that 
internet openness helps promote innovation, investment, and free 
expression, among other goals. Among other things, the Commission found 
that the record there ``overwhelmingly support[ed] the proposition that 
the internet's openness is critical to its ability to serve as a 
platform for speech and civic engagement,'' facilitate ``the 
development of diverse content,

[[Page 76068]]

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

[[Page 76069]]

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

[[Page 76070]]

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

[[Page 76071]]

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

[[Page 76072]]

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

B. Conduct Rules

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

[[Page 76073]]

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

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

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

[[Page 76074]]

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

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

    As in 2015, we intend this rule to prohibit conduct that impairs or 
degrades lawful traffic to a non-harmful device or class of devices, 
which includes any conduct by an ISP to impair, degrade, slow down, or 
render effectively unusable particular content, services, applications, 
or devices, that is not reasonable network management. We also propose 
to give the same meaning to ``content, applications, and services'' as 
we propose in the context of the no-blocking rule, and we seek comment 
on this proposal. Have there been any technological changes or 
advancements in network management since 2015 that we should reflect in 
the proposed rule? As written, does the proposed rule provide clear 
guidance to ISPs and customers on what is considered prohibited 
conduct? As in 2015, we propose that transfers of unlawful content or 
unlawful transfers of content would not be protected by the no-
throttling rule. Further, as with our proposed no-blocking rule, we 
propose to prohibit ISPs from imposing a fee on edge providers to avoid 
having the edge providers' content, service, or application throttled. 
We seek comment on these proposals. What other aspects and consequences 
of a no-throttling rule should we consider?
    141. As in 2015, we propose that while a no-throttling rule would 
address instances in which an ISP targets particular content, 
applications, services, or non-harmful devices, it would not address 
the practice of slowing down an end user's connection to the internet 
based on a choice clearly made by the end user. For example, an ISP may 
offer a data plan in which a subscriber receives a set amount of data 
at one speed tier and any remaining data at a lower tier. We seek 
comment on our proposal to maintain this distinction. We do not intend 
to leave such data plans without oversight, however, and therefore 
propose to allow the Commission to review the particulars of a certain 
data plan, as required by sections 201 and 202 of the Act, which 
prohibit unjust and unreasonable charges and practices, or our proposed 
general conduct standard, discussed below.
    142. As discussed above, because BIAS connections were so essential 
during the pandemic, we believe ISPs have been under increased scrutiny 
by the Commission, the media, and the public since March 2020, and 
therefore have had a strong incentive to follow their voluntary 
commitments to maintain service consistent with certain conduct rules 
established in the 2015 Open Internet Order. We believe that this, 
coupled with unprecedented consumer demand for BIAS during the pandemic 
and state regulations addressing ISP conduct, helped to constrain ISPs 
from engaging in conduct that could harm internet openness. These 
constraints, however, are neither permanent nor uniform, and we believe 
that incentives for ISPs to degrade competitors' content, applications, 
or devices remain; as such, we propose that rules are needed to protect 
consumers' right to access lawful internet traffic of their choice 
without impairment or degradation. We seek comment on this proposed 
analysis, and invite comment on ISPs' incentives to engage in 
throttling conduct harmful to internet openness. As the Commission 
recognized in the RIF Order, ``[t]he potential consequences of blocking 
and throttling lawful content on the internet ecosystem are well-
documented in the record and in Commission precedent.'' Even after the 
repeal of the no-throttling rule, ISPs continue to advertise on their 
websites that they do not throttle traffic except in limited 
circumstances. As a result, we anticipate that prohibiting throttling 
of lawful internet traffic will impose a minimal compliance burden on 
ISPs. Do commenters agree? We seek comment on specific costs or 
technical concerns that our proposed rule would impose on ISPs, 
including small providers. We also seek comment on the reasoning 
underlying the Commission's repeal of the no-throttling rule in 2018. 
We seek specific comment regarding any instances of an ISP throttling 
lawful content, applications, services, or non-harmful devices in the 
years since the no-throttling rule was repealed.
3. No Paid or Affiliated Prioritization
    143. We next propose to ban arrangements in which an ISP accepts 
consideration (monetary or otherwise) from a third party to manage its 
network in a manner that benefits particular content, applications, 
services, or devices. Under this proposal, we would also prohibit 
arrangements in which a provider manages its network in a manner that 
favors the content, applications, services, or devices of an affiliated 
entity. The Act defines ``affiliate'' as ``a person that (directly or 
indirectly) owns or controls, is owned or controlled by, or is under 
common ownership or control with, another person. For purposes of this 
paragraph, the term `own' means to own an equity interest (or the 
equivalent thereof) of more than 10 percent.'' In 2015, the Commission 
adopted a rule banning these type of paid or affiliated prioritization 
agreements, finding that such practices ``harm consumers, competition, 
and innovation, as well as create disincentives to promote broadband 
deployment.'' We tentatively conclude that this reasoning remains 
applicable today. We seek comment on this proposal and the underlying 
analysis.
    144. Tracking the language of the Commission's 2015 Open Internet 
Order, we propose to adopt the following definition of ``paid 
prioritization'' and rule banning such arrangements:

    A person engaged in the provision of broadband internet access 
service, insofar as such person is so engaged, shall not engage in 
paid prioritization. ``Paid prioritization'' refers to the 
management of a broadband provider's network to directly or 
indirectly favor some traffic over other traffic, including through 
use of techniques such as traffic shaping, prioritization, resource 
reservation, or other forms of preferential traffic management, 
either (a) in exchange for consideration (monetary or otherwise) 
from a third party, or (b) to benefit an affiliated entity.

    In adopting a ban on paid prioritization in 2015, the Commission 
sought to prevent the bifurcation of the internet into a ``fast'' lane 
for those with the means and will to pay and a ``slow'' lane for 
everyone else. This development, the Commission reasoned, would 
introduce artificial barriers to entry, distort the market, harm 
competition, harm consumers, discourage innovation, undermine public 
safety and universal service, and harm free expression. The Commission 
was concerned that preferential treatment arrangements would create a 
chilling effect, disrupting the internet's virtuous cycle of 
innovation, consumer demand, and investment, and that the widespread 
use of paid prioritization practices would cause damage to

[[Page 76075]]

internet openness that would be difficult to reverse and challenging to 
track. We tentatively conclude that these concerns remain valid today, 
and we seek comment on this conclusion. What are some examples of harms 
or categories of harms that paid prioritization arrangements might 
cause to the open internet and to consumers? Does the language of the 
proposed rule make clear the scope of this proposed prohibition? What 
other aspects or consequences of a ban on paid prioritization practices 
should we consider?
    145. Previously, the Commission has found it well-established that 
ISPs have both the incentive and the ability to engage in paid 
prioritization. In its Verizon opinion, the D.C. Circuit noted the 
powerful incentives ISPs have to accept fees from edge providers in 
return for excluding their competitors or for granting prioritized 
access to end users. Some ISPs continue to advertise that they do not 
engage in paid or affiliated prioritization practices. Even with 
similar promises from ISPs in 2015, the Commission concluded that the 
potential harm to the open internet was too significant to rely on mere 
promises from ISPs because ``the future openness of the internet should 
not turn on the decision of a particular company.'' We tentatively 
conclude that this reasoning remains valid today, and we seek comment 
on this tentative conclusion, and any alternatives we should consider.
    146. In choosing to repeal the ban on paid prioritization in 2018, 
the Commission found that the costs of a ban outweighed the benefits, 
and that the transparency rule and the enforcement of existing 
antitrust and consumer protection laws would sufficiently address many 
of the concerns regarding the dangers of paid prioritization 
arrangements. We seek comment on that assessment from 2018. In weighing 
the costs and benefits, the Commission did not identify specific 
compliance costs, but rather identified the costs in the form of 
forgone benefits. While we do not dispute that some potential benefits 
may result from paid prioritization arrangements, we tentatively 
conclude that the potential harms to consumers and the open internet 
outweigh any speculative benefits. Do commenters agree? Why or why not? 
What compliance costs might ISPs incur as a result of such a ban, 
including small providers? The Commission also found in 2018 that paid 
prioritization could be a tool in helping to close the digital divide 
by reducing BIAS subscription prices for consumers. Do commenters agree 
with this assessment? We tentatively conclude that the Commission's 
2018 finding that existing antitrust and consumer protection laws, in 
conjunction with some form of a transparency rule, offer enough 
protection against the potential harms caused by paid prioritization 
arrangements was erroneous. We seek comment on this tentative 
conclusion.
    147. As part of a rule prohibiting paid prioritization 
arrangements, we also propose to adopt a rule concerning waiver of such 
a ban that establishes a balancing test. Under our waiver rules, the 
Commission may waive any rule in whole or in part, ``for good cause 
shown.'' A general waiver of the Commission's rules is only appropriate 
if special circumstances warrant a deviation from the general rule and 
such a deviation will service the public interest. In 2015, the 
Commission found that it was appropriate to adopt specific rules 
concerning the factors that it will use to examine a waiver request of 
the paid prioritization ban. We tentatively conclude that it remains 
appropriate to accompany a rule prohibiting paid prioritization 
arrangements with specific guidance on how the Commission would 
evaluate subsequent waiver requests. We seek comment on this 
conclusion. Tracking the language of the 2015 Open Internet Order, we 
propose to adopt the following rule, and seek comment on this proposal:

    The Commission may waive the ban on paid prioritization only if 
the petitioner demonstrates that the practice would provide some 
significant public interest benefit and would not harm the open 
nature of the internet.

    148. Following the framework the Commission established in 2015, we 
propose to require an applicant seeking a waiver of our proposed rule 
to prohibit paid prioritization arrangements to make two related 
showings. First, the applicant would need to demonstrate that the 
practice will have some significant public interest benefit. The 
applicant could make such a showing by providing evidence that the 
practice furthers competition, innovation, consumer demand, or 
investment. Second, the applicant would need to demonstrate that the 
practice does not harm the nature of the open internet. This second 
showing would include, but is not limited to, providing evidence that 
the practice: (i) does not materially degrade or threaten to materially 
degrade the BIAS of the general public; (ii) does not hinder consumer 
choice; (iii) does not impair competition, innovation, consumer demand, 
or investment; and (iv) does not impede any forms of expression, types 
of service, or points of view. We seek comment on the continued 
relevance of these four examples. Should the Commission consider other 
factors when considering a request to waive our proposed ban on paid 
prioritization arrangements? Do commenters agree that this language 
creates a ``high bar'' for potential applicants to meet, ensuring that 
the Commission would only grant waiver relief in exceptional cases?
4. General Conduct Rule
    149. We propose to adopt a general conduct standard, which would 
prohibit practices that unreasonably interfere with or disadvantage 
consumers or edge providers. In 2015, the Commission adopted a standard 
to prohibit, on a case-by-case basis, practices that unreasonably 
interfere with or unreasonably disadvantage the ability of consumers to 
reach the internet content, services, and applications of their 
choosing or of edge providers to access consumers using the internet. 
The Commission reasoned that while the bright-line rules against 
blocking, throttling, and paid prioritization arrangements would act as 
``critical cornerstone[s] in protecting and promoting the open 
internet,'' it also needed a mechanism to respond to ``other current or 
future practices that cause the type of harms our rules are intended to 
address.'' The general conduct standard was necessary, in other words, 
to ensure that ISPs did not find a technical or economic means to evade 
these bright line bans to wield their gatekeeper power in a way that 
would compromise the open internet. We agree with the Commission's 
conclusion in 2015 that it is ``critical that access to a robust, open 
internet remains a core feature of the communications landscape, but 
also that there remains leeway for experimentation with innovative 
offerings.'' We believe that this reasoning continues to support the 
adoption of a general conduct standard to operate as the catch-all 
backstop to the three bright-line prohibitions, and we seek comment on 
this analysis.
    150. We propose to adopt a general conduct standard that tracks the 
language of the 2015 Open Internet Order, and we seek comment on this 
proposal:

    Any person engaged in the provision of broadband internet access 
service, insofar as such person is so engaged, shall not 
unreasonably interfere with or unreasonably disadvantage (i) end 
users' ability to select, access, and use broadband internet access 
service or the lawful internet content,

[[Page 76076]]

applications, services, or devices of their choice, or (ii) edge 
providers' ability to make lawful content, applications, services, 
or devices available to end users. Reasonable network management 
shall not be considered a violation of this rule.

    In 2015, the Commission found that careful application of this 
standard would act to not only balance the benefits of innovation 
against the harms to end users and edge providers, but also act to 
protect free expression. If adopted, we anticipate that this general 
conduct standard would accomplish these same goals going forward, and 
we seek comment on this prediction. Does the proposed language capture 
the scope of behaviors that the Commission might need to address? Have 
there been any technical or market developments that should affect our 
approach? Is there an alternative standard we should adopt to establish 
a general conduct rule?
    151. Consistent with the Commission's 2015 approach, we propose to 
enforce this standard with a framework and in a manner that would 
provide certainty and flexibility to the industry and encourage 
innovation, while best protecting the open internet. First, we propose 
to follow a case-by-case approach that would consider the totality of 
the circumstances when analyzing whether conduct satisfies the 
standard. Second, we propose a non-exhaustive list of factors that we 
would consider to aid in our analysis. These factors would include: (i) 
whether a practice allows end-user control and enables consumer choice; 
(ii) whether a practice has anti-competitive effects in the market for 
applications, services, content, or devices; (iii) whether a practice 
affects consumers' ability to select, access, or use lawful broadband 
services, applications, or content; (iv) the effect a practice has on 
innovation, investment, or broadband deployment; (v) whether a practice 
threatens free expression; (vi) whether a practice is application 
agnostic; and (v) whether a practice conforms to best practices and 
technical standards adopted by open, broadly representative, and 
independent internet engineering, governance initiatives, or standards-
setting organizations. Do all of these factors remain relevant in 
today's internet ecosystem? If not, why not? Are there other factors we 
should consider including in this non-exhaustive list that would aid 
with industry compliance or Commission enforcement?
    152. We believe that the general conduct standard we propose today, 
mirroring that adopted in the 2015 Open Internet Order, provides 
sufficient guidance to ISPs for purpose of compliance, a conclusion 
affirmed by the D.C. Circuit. Nonetheless, in 2018, the Commission 
repealed the general conduct standard because it found that it was 
``vague and ha[d] created regulatory uncertainty in the marketplace 
hindering investment and innovation.'' We seek comment on whether there 
are additional steps we should take to ensure that ISPs understand the 
types of conduct and practices that might be prohibited under our 
proposal. Are there any specific practices that would or would not 
violate this proposed rule, and if so, should we provide examples of 
those practices? For example, are there any zero rating or sponsored 
data practices that raise particular concerns under the proposed 
general conduct standard? What would the compliance costs be for ISPs, 
particularly small providers? How would our proposed general conduct 
standard affect current and future ISP business practices? What other 
aspects or consequences of imposing a general conduct standard should 
we consider? We seek comment on whether the Commission's prediction in 
2018 that eliminating the internet conduct standard will ``benefit 
consumers, increase competition, and eliminate regulatory uncertainty 
that has a `corresponding chilling effect on broadband investment and 
innovation' '' has been borne out. Is it reasonable to attribute any 
growth and development in broadband markets and services to elimination 
of the general conduct rule, or is such a potential connection too 
attenuated? The RIF Order also found that ``the benefits of the 
internet conduct standard provides approximately zero additional 
benefits'' when compared to the antitrust and consumer protection 
enforcement in place through the FTC, while imposing negative benefits 
in the form of delayed or never-brought-to-market innovations. We seek 
comment on whether elimination of the general conduct rule has resulted 
in new innovations which would not have been permissible under the 
general conduct rule.
    153. In the alternative, we seek comment on whether we should 
instead rely on the ``just and reasonable'' standards in sections 201 
and 202 of the Act. In 2015, the Commission explained that the general 
conduct rule was its interpretation of sections 201 and 202 in the 
broadband context. We seek comment on whether it remains necessary to 
enunciate a specific rule, like the proposed general conduct standard 
described above, by interpreting sections 201 and 202 in the context of 
broadband, or whether it would be sufficient to rely on sections 201 
and 202 alone to address potential harmful practices and behaviors. 
Would the latter alternative approach provide sufficient certainty and 
clarity to ISPs regarding what practices would violate the Act's 
standard? If we choose not to adopt a general conduct rule, are there 
other ways for us to aid our enforcement efforts related to sections 
201 and 202 in the broadband context?

C. Transparency Rule

    154. Policymakers have consistently recognized the importance of 
transparency regarding the terms and service characteristics of 
broadband offerings, even as certain details of the Commission's 
transparency requirements have changed over time. This includes not 
only transparency requirements that have been in place since they 
originally were adopted in the 2010 Open Internet Order, but also the 
broadband label the Commission adopted in 2022, which gives consumers a 
convenient tool to research and compare broadband offerings. We propose 
to build upon the foundation of our existing transparency rule, 
informed by our recent experience in adopting broadband label 
requirements, and we seek comment on possible modifications or 
additions to update the transparency rule to ensure that end users, 
edge providers, the broader internet community, and the Commission have 
the information they need to assess ISPs' terms and conditions for BIAS 
in a timely and effective manner.
1. Policy Benefits of Transparency Requirements
    155. We anticipate transparency requirements are likely to continue 
playing a key role in the broadband marketplace. In the 2010 Open 
Internet Order, the Commission adopted its original BIAS transparency 
rule, explaining that ``[e]ffective disclosure of broadband providers' 
network management practices and the performance and commercial terms 
of their services promotes competition--as well as innovation, 
investment, end-user choice, and broadband adoption.'' The Commission 
echoed this policy judgment in the 2015 Open Internet Order, going on 
to adopt additional clarifications and enhancements to the transparency 
rule--along with a broadband label safe harbor--to ``better enable end-
user consumers to make informed choices about broadband services by 
providing them with timely information tailored more specifically to 
their needs,'' and to ``provide edge providers with the information 
necessary to develop new content,

[[Page 76077]]

applications, services, and devices that promote the virtuous cycle of 
investment and innovation.'' In discussing transparency in the RIF 
Order, the Commission noted that ``[d]isclosure supports innovation, 
investment, and competition by ensuring that entrepreneurs and other 
small businesses have the technical information necessary to create and 
maintain online content, applications, services, and devices, and to 
assess the risks and benefits of embarking on new projects.'' In that 
Order, however, the Commission elected to ``return, with minor 
adjustments, to the transparency rule adopted in the 2010 Open Internet 
Order,'' under the theory that such an approach would ``provide[ ] 
consumers and the Commission with essential information while 
minimizing the burdens imposed on ISPs.'' We seek comment on how the 
Commission can ensure that its transparency rule most effectively 
advances these longstanding policy goals.
    156. In 2021, Congress enacted and the President signed the 
Infrastructure Act, which, in relevant part, directs the Commission 
``to promulgate regulations to require the display of broadband 
consumer labels,'' using as an initial point of reference the broadband 
label established in connection with the enhanced transparency rule 
adopted in the 2015 Open Internet Order. The Infrastructure Act 
recognizes the benefits of a label ``to disclose to consumers 
information regarding broadband internet access service plans,'' 
further observing that consumers need the ability to ``evaluate 
broadband internet access service plans'' through information that is 
``available, effective, and sufficient'' to meet that need. In November 
2022, the Commission adopted the broadband consumer label rules and 
sought further comment in the accompanying Broadband Label Further 
Notice. These broadband label requirements promote ``consumer access to 
clear, easy-to-understand, and accurate information about the cost for 
broadband services and will empower consumers to choose services that 
best meet their needs and match their budgets and ensures that they are 
not surprised by unexpected charges or service quality that falls short 
of their expectations.'' We seek comment on the interplay between the 
broadband label requirements adopted in the Broadband Label Order, the 
possible amendments raised in the Broadband Label Further Notice, and 
any modifications to the transparency rule that we might adopt here. 
For example, to the extent that the content of the required disclosures 
under the two requirements diverge, how can we avoid any undue 
duplication of effort in making each required disclosure, particularly 
for small providers? Should the broadband label requirements and the 
transparency rule as it might be modified here be legally distinct, or 
legally interrelated, requirements?
2. Content of Required Disclosures
    157. We seek comment on what, if any, additional disclosures should 
be required under the transparency rule. As a starting point, we 
believe that the disclosures required under the current transparency 
rule are an appropriate baseline, and we propose to retain them in the 
transparency rule going forward. We seek comment on this proposal. As 
the Commission recently explained when adopting broadband label 
requirements, ``the transparency rule seeks to enable a deeper dive 
into details of broadband internet service offerings, which could be 
relevant not only for consumers as a whole, but also for consumers with 
particularized interests or needs, as well as a broader range of 
participants in the internet community--notably including the 
Commission itself.'' Are the current requirements of the transparency 
rule sufficient to enable that deeper dive into details of broadband 
internet service offerings?
    158. We seek comment on whether enhancements to the content of 
disclosures required by the transparency rule under the 2015 Open 
Internet Order should be incorporated in a revised transparency rule 
here. With respect to required disclosure of commercial terms, the 2015 
Open Internet Order provided additional specifications regarding ISPs' 
disclosures about price and related terms and their relationship with 
disclosures regarding privacy and redress options. Regarding the 
disclosure of performance characteristics, the 2015 Open Internet Order 
provided additional specifications regarding the disclosure of network 
performance and network practices. The RIF Order eliminated those 
enhancements under the theory that their burdens to ISPs exceeded their 
benefits. The Broadband Label Order, on the other hand, required ISPs 
to disclose in the broadband labels their typical upload and download 
speeds and typical latency metrics associated with their broadband 
services, noting that speed in particular ``remains the network 
performance metric of greatest interest to the consumer.'' The 
Commission similarly found that low delay or latency is important to 
any application involving users interacting with each other, a device, 
or an application. We seek comment on these assessments, including 
updated evidence regarding the relative costs and benefits of the 
transparency enhancements based on experience following the RIF Order. 
To the extent that the transparency requirements were intended to 
provide needed information not only to consumers but also edge 
providers, the broader internet community, and the Commission, how 
should that affect our assessment of the overall benefits of the 
enhanced transparency requirements? Would the enhancements to the 
transparency rule adopted in the 2015 Open Internet Order, or other 
modifications to the current transparency rule, assist the Commission 
in monitoring and enforcing compliance with the conduct rules proposed 
here? Are there any metrics that are particularly important to some 
subset of consumers that we should consider including despite those 
metrics not being of significant value to the average consumer?
    159. In addition, we seek comment on other considerations relevant 
to possible changes to the content ISPs may be required to disclose 
under the transparency rule. For one, we seek comment on whether we 
should revise the transparency rule to incorporate the Commission's 
clarifications and guidance regarding prior versions of the 
transparency rule. For example, a 2011 Public Notice (2011 Advisory 
Guidance) provided ``examples of approaches to disclosure that would 
satisfy the transparency rule,'' discussing point-of-sale disclosures, 
service descriptions, the extent of required disclosures, disclosures 
for the benefit of edge providers, and disclosures regarding security 
measures. A 2014 Public Notice (2014 Advisory Guidance) summarized the 
applicability and requirements of the transparency rule and the 
potential enforcement consequences if it were violated, and emphasized 
the importance of consistency between ISPs' disclosures under the 
transparency rule and their advertising claims or other public 
statements. And a 2016 Public Notice (2016 Advisory Guidance) provided 
guidance regarding acceptable methodologies for disclosure of network 
performance information and point-of-sale disclosures consistent with 
the 2015 Open Internet Order. The RIF Order subsequently eliminated the 
enhancements adopted in 2015, and the clarifications in the 2016 
Advisory Guidance along with it. The RIF Order endorsed the 
clarifications in the 2011 Advisory Guidance, but neither endorsed nor 
disclaimed the

[[Page 76078]]

clarifications in the 2014 Advisory Guidance. We seek comment on 
whether and to what extent the Commission should reaffirm, reject, or 
elaborate on any of that prior guidance in connection with any 
modification of the transparency rule here. Are there other areas where 
additional clarification or guidance would be beneficial either under 
the existing transparency rule or a revised transparency rule?
    160. We also seek comment on the availability of information that 
ISPs can or should use to comply with the content of disclosures 
required under the current or modified transparency rule. For example, 
the RIF Order allowed fixed ISPs participating ``in the Measuring 
Broadband America (MBA) program [to] disclose their results as a 
sufficient representation of the actual performance their customers can 
expect to experience.'' Should we continue that approach here, or make 
use of the MBA program in some other way? To what extent can or should 
we allow ISPs to use other specific information sources or measurement 
approaches to provide transparency disclosures? Should we clarify that 
certain sources of information are permissible to rely on in making the 
required disclosures? Or should we go further in particular cases and 
require the use of certain data sources for reasons of uniformity, 
reliability, or otherwise? Should the Commission require ISPs to 
include additional information in transparency disclosures regarding 
their measurement methodologies and practices?
    161. Finally, we seek comment on any other considerations relevant 
to our evaluation of the appropriate content of required disclosures 
under the transparency rule. Is there additional content that we should 
require? For example, the 2015 Open Internet Order considered, but 
ultimately did not adopt, additional disclosure requirements regarding 
``the source, location, timing, or duration of network congestion,'' 
packet corruption and jitter, and ``disclosures that permit end users 
to identify application-specific usage or to distinguish which user or 
device contributed to which part of the total data usage.'' In light of 
subsequent experience, should we revisit the decisions not to require 
such disclosures? Should the Commission consider requiring more 
detailed disclosures regarding the requirements, restrictions, or 
standards for enforcement of data caps, and if so, how? We also seek 
comment on whether different content disclosures should be required for 
mobile ISPs than for fixed ISPs.
3. Means of Disclosure
    162. We seek comment on how best to ensure that the content of the 
required disclosures is made available in a timely and effective manner 
without undue burdens on ISPs, both as a general matter and in the 
specific respects discussed below. In the RIF Order, the Commission 
allowed providers to make the required disclosures either ``on a 
publicly available, easily accessible website,'' or by ``transmit[ting] 
their disclosures to the Commission,'' which would then make them 
``available on a publicly available, easily accessible website.'' We 
seek comment on practical experiences with that approach, and whether 
that approach should be retained in its current form, modified, or 
eliminated in favor of disclosures required specifically on provider 
websites--as had been the case under prior versions of the transparency 
rule. When the Commission recently adopted broadband label rules, it 
required ISPs to display labels on their websites, as well as at other 
points of sale. While it ``aim[ed] to give providers flexibility in how 
they display labels,'' the Commission also sought ``to ensure that the 
labels are prominently displayed on any device on which the consumer 
accesses and views the labels, including mobile devices'' and in a 
uniform format that will best assist consumers in comparing pricing, 
fees, performance characteristics, and data allowances across different 
providers. Are there lessons from the Commission's recent experience 
crafting broadband label requirements that should inform our approach 
to the manner of making disclosures under the transparency rule?
    163. We also seek comment on whether any additional requirements 
are warranted regarding ISPs' website disclosures under the 
transparency rule. For ISPs electing to make the required disclosures 
on a ``publicly available, easily accessible website,'' the RIF Order 
``reaffirm[ed] the means of disclosure requirement from the [2010] Open 
Internet Order and the clarification found in the 2011 Advisory 
Guidance.'' Should the approach reflected in the current transparency 
rule, as informed by the 2010 Open Internet Order and 2011 Advisory 
Guidance, be retained or modified? Should we require the disclosures to 
be in machine-readable format, akin to the Commission's recently-
adopted approach for broadband consumer labels?
    164. We also seek comment on whether disclosures under the 
transparency rule should be required in additional locations. For 
instance, are there places on an ISP's website besides a point of sale 
where disclosures should be made?
    165. Ensuring that disclosures under the transparency rule are 
accessible to individuals with disabilities is a priority. The RIF 
Order explained that ISPs making website disclosures under the 
transparency rule must make them ``in a manner accessible by people 
with disabilities.'' Has this direction been adequate, or are 
additional requirements warranted to ensure that disclosures under the 
transparency rule are accessible to individuals with disabilities? For 
example, should we encourage or require that website disclosures under 
the transparency rule follow guidance developed by the Web 
Accessibility Initiative? Most recently, the Commission required ISPs 
to post broadband label information on their websites in an accessible 
format, and strongly encouraged them to use the most current version of 
the Web Content Accessibility Guidelines (WCAG). In the Broadband Label 
Further Notice, it sought comment on whether to adopt specific 
criteria, based on the WCAG standard. Are there other industry 
guidelines that providers should be encouraged or required to follow? 
To the extent that we ultimately require transparency disclosures in 
locations other than websites and in alternative formats besides 
websites, is there additional guidance or requirements we should adopt 
to ensure accessibility to individuals with disabilities?
    166. Further, we seek comment on possible ``direct notification'' 
requirements, including the costs and benefits of such requirements. 
The 2015 Open Internet Order had imposed such an obligation, but the 
RIF Order eliminated that requirement. The Commission also recently 
declined to adopt a direct notification requirement in the context of 
its broadband label rules, finding that the broadband labels are 
specifically intended to inform consumers at the time of purchase. We 
note, however, the broader purpose of the transparency rule compared to 
the broadband labels. We therefore seek further comment and updated 
information on the benefits and burdens of such a requirement in the 
specific context of the transparency rule, in light of this more recent 
experience.
    167. Finally, we seek comment on any other changes to our 
transparency rule regarding the means of disclosure. Are there 
additional requirements regarding the means of disclosure under the 
transparency rule that the Commission should adopt to ensure that 
information is available in a timely and effective

[[Page 76079]]

manner? Conversely, are there existing requirements regarding the means 
of disclosure that commenters believe impose burdens that outweigh 
their benefits, and thus should be eliminated?
4. Implementation and Other Issues
    168. We seek comment on any implementation issues associated with 
potential modifications to the transparency rule, and whether we should 
consider additional time for compliance by small providers.
    169. We also seek comment on whether the Commission should adopt 
new safe harbors for compliance with the transparency rule. Are there 
particular data sources or methodologies for complying with particular 
elements of the transparency rule, whether in its current form or as it 
may be modified, that the Commission should treat as a safe harbor or 
otherwise presumptively reasonable? Are there safe harbors the 
Commission should adopt for compliance with the transparency rule as a 
whole, akin to the broadband label safe harbor adopted in the 2015 Open 
Internet Order?
    170. Further, we seek comment on whether we should adopt 
recordkeeping requirements governing the types of information or 
records ISPs rely upon to support the content of their disclosures made 
under the transparency rule. Would such a requirement be helpful to our 
enforcement of the transparency rule by enabling us to evaluate the 
reasonableness of ISPs' claims? Would such requirements help inform our 
evaluation of the effectiveness of the rule and the need for changes 
over time? This requirement could, for example, help to identify and 
account for particular data sources or methodologies that prove to be 
especially reliable or unreliable. In the Broadband Label Order, the 
Commission required ISPs to maintain an archive of all labels no longer 
posted on their websites and at alternate sales channels, along with 
evidence sufficient to support the accuracy of the labels' content. 
Given that ISPs must have a basis for the claims made in their 
disclosures under the transparency rule, are there particular ways of 
retaining that information that could minimize the burden on ISPs? If 
we elect to adopt recordkeeping requirements, what period of time would 
best balance the benefits to the Commission from having the information 
available against the compliance burden for ISPs?
    171. In addition, we seek comment on the overall cost effectiveness 
of modifications we might adopt to the transparency rule. What are the 
most cost-effective ways of ensuring that consumers and edge providers 
receive the information they need in a timely and effective manner? How 
can we minimize implementation and compliance burdens for ISPs, 
consistent with those goals?

D. Scope of Open Internet Rules

    172. Internet Traffic Exchange. We propose to decline to apply any 
open internet rules to internet traffic exchange. We tentatively 
conclude, consistent with the 2015 Open Internet Order and as discussed 
further below, that case-by-case review under sections 201 and 202 is 
``an appropriate vehicle for enforcement where disputes are primarily 
over commercial terms and that involve some very large corporations, 
including companies like transit providers and CDNs, that act on behalf 
of smaller edge providers.'' We believe that the best approach with 
respect to internet traffic exchange is to ``watch, learn, and act as 
required'' but to not intervene with prescriptive rules. We seek 
comment on our proposed approach.
    173. Reasonable Network Management. We also propose that reasonable 
network management would not be considered a violation of prohibitions 
on blocking and throttling, or the general conduct rule, and seek 
comment on our proposal. In 2015, the Commission concluded that a 
reasonable network management exception to the conduct rules was 
necessary for ISPs to optimize overall network performance and maintain 
a consistent quality experience for consumers while carrying a variety 
of traffic over their networks. We tentatively conclude this analysis 
remains equally applicable today and seek comment on this tentative 
conclusion. Is excluding reasonable network management practices still 
both necessary and advisable? In the RIF Order, the Commission defined 
``reasonable network management'' to mean ``a practice `appropriate and 
tailored to achieving a legitimate network management purpose, taking 
into account the particular network architecture and technology of the 
broadband internet access service,' '' returning to the definition the 
Commission adopted in the 2010 Open Internet Order. In 2015, the 
Commission had slightly modified that definition, adding that ``a 
network management practice is a practice that has a primarily 
technical network management justification, but does not include other 
business practices.'' We seek comment on how we should define 
``reasonable network management'' for the purposes of our proposed open 
internet rules, and invite commenters to provide examples of how this 
term is best interpreted with regard to management of today's broadband 
networks. Is it necessary for the Commission to provide further 
guidance on the reasonable network management exception to provide 
certainty for ISPs? How can we ensure that the reasonable network 
management exception is not used to circumvent the proposed rules, 
while also providing regulatory certainty to ISPs and enabling them to 
appropriately manage their networks?

E. Enforcement of Open Internet Rules

    174. We seek comment on the best framework for enforcing any 
potential open internet rules. Our aims are to enable effective and 
timely conflict resolution and to provide clear guidance on allowed and 
prohibited practices. We seek comment on what enforcement regime will 
be most efficient and least burdensome for customers, edge providers, 
and ISPs, including small entities.
    175. In 2010, the Commission adopted a multipart framework to 
ensure prompt and effective enforcement of the open internet rules and 
encouraged informal and private resolution of matters. The first 
component involved informal complaints filed under Sec.  1.41 of the 
Commission's rules. The Commission noted that this vehicle was 
``already available'' and that ``no filing fee is required.'' 
``Although individual informal complaints will not typically result in 
written Commission orders,'' the Commission explained that the 
Enforcement Bureau ``will examine trends or patterns in [informal] 
complaints to identify potential targets for investigation and 
enforcement action.'' Should informal or other means fail to resolve a 
dispute, the Commission adopted new procedures for filing formal 
complaints that would ``permit anyone--including individual end users 
and edge providers--to file a claim alleging that another party has 
violated a statute or rule, and asking the Commission to rule on the 
dispute.'' The Commission opted to base the formal complaint rules on 
the Part 76 cable access complaint rules, finding that those rules are 
``more streamlined and thus preferable.'' Citing sections 403 and 
503(b) of the Act, the Commission further observed that it has the 
authority to initiate enforcement actions on its own motion, including 
the issuance of forfeitures.
    176. Advisory Opinions and Enforcement Advisories. In 2015, the 
Commission concluded that the use of advisory opinions, similar to 
those issued by DOJ's Antitrust Division,

[[Page 76080]]

would be in the public interest and had the potential to provide 
clarity, guidance, and predictability concerning the Commission's open 
internet rules. The RIF Order eliminated the advisory opinion process 
established in the 2015 Open Internet Order, reasoning that without 
conduct rules, advisory opinions were no longer necessary, and 
concluding that the advisory opinion process did not diminish 
regulatory uncertainty, particularly for small providers, but rather 
added costs, caused uncertain timelines, and inhibited innovations. The 
elimination of the advisory opinion process was based on predictive 
comments in the record because no ISP had yet requested an advisory 
opinion through the Commission's process. When the D.C. Circuit in USTA 
rejected the challenge to the 2015 Open Internet Order's general 
conduct standard as being unconstitutionally vague, the Court relied in 
part on the advisory opinion process the Commission had created in that 
Order. The D.C. Circuit found that the opportunity for parties to 
obtain prospective guidance through the advisory opinion process 
``provide[d] regulated entities with relief from [remaining] 
uncertainty.''
    177. In light of the D.C. Circuit's reasoning in USTA, and to 
advance our goal of legal certainty in the enforcement of any potential 
open internet rules, we propose to adopt an advisory opinion process if 
we adopt a general conduct standard. We seek comment on this proposal. 
In practice, we believe that advisory opinions have the potential to 
lower costs for providers by creating certainty up front, rather than 
risking potentially costly formal complaint litigation, remediation, or 
fines after the fact. Do commenters agree? Are there examples of other 
federal or state advisory opinion processes from which the Commission 
could learn? Are there specific barriers that would prevent smaller 
ISPs from engaging with the advisory opinion process, and if so, how 
could we address them? We seek comment on whether we should adopt the 
mechanisms delineated in the 2015 Open Internet Order for the issuance 
of advisory opinions and enforcement advisories. What changes, if any, 
should we make to the process the Commission established in the 2015 
Open Internet Order? As an alternative to adopting an advisory opinion 
process, would a detailed explanation of the factors the Commission 
would use when analyzing potential violations of the general conduct 
standard be sufficient under the D.C. Circuit's reasoning to provide 
fair warning to regulated entities of what the standard requires?

F. Investigations and Complaints

    178. We next seek comment on whether it would be beneficial to re-
establish a formal complaint process for complaints arising under our 
open internet rules, as the Commission did in 2015. In 2015, the 
Commission preserved the three avenues for enforcement of its open 
internet rules that the Commission had created in the 2010 Open 
Internet Order: (i) parties could file informal complaints under Sec.  
1.41 of the Commission's existing rules; (ii) parties could file formal 
complaints under a new process that the Commission had created for this 
purpose; or (iii) the Commission could initiate enforcement actions on 
its own motion. While the informal complaint process under Sec.  1.41 
of the Commission's rules would remain available to parties with 
respect to any concerns arising out of any open internet rules that may 
be ultimately adopted, we seek comment on whether we should also adopt 
a formal complaint process. Is there value in providing parties with 
both of these options? Is our formal complaint process established 
pursuant to section 208 of the Act sufficient for this purpose, or is 
it necessary to establish a standalone formal complaint process? The 
Commission eliminated the open internet-specific formal complaint 
process in 2018. If we were to adopt a formal complaint process, should 
we implement one that returns to the rules the Commission adopted in 
the 2010 Open Internet Order and preserved in the 2015 Open Internet 
Order? If not, what alternatives do commenters recommend? The section 
208 formal complaint rules were modified in 2018 and consolidated with 
the Commission's pole attachment rules. Should we use these existing 
rules for open internet disputes? We also seek comment on whether the 
Commission's informal complaint mechanism would be sufficient to 
resolve disputes under our proposed open internet rules.

G. Legal Authority

    179. We seek comment on our authority to adopt open internet rules, 
including both the proposed conduct rules and any revised transparency 
rules. With respect to our proposed conduct rules, we propose to rely 
on the same sources of authority that the Commission relied upon when 
it adopted rules in the 2015 Open Internet Order. As discussed below, 
we propose to return to our prior interpretation, upheld by the D.C. 
Circuit, that sections 706(a) and (b) of the 1996 Act are grants of 
regulatory authority and rely on that as a basis for our open internet 
rules. We also propose to rely on our authority under Title II of the 
Act with forbearance where appropriate under section 10 of the Act, 
insofar as we reclassify BIAS as a Title II service. And we propose to 
once again rely on our broad spectrum management authority under Title 
III of the Act as additional authority specifically in the case of 
mobile providers. With respect to any modifications to the transparency 
rule, we propose to rely on those same sources of authority along with 
section 257 (and associated authority now in section 13) of the Act, 
consistent with the reasoning of the 2010 Open Internet Order and the 
RIF Order. We seek comment on those proposals, and any additional 
sources of authority for our proposed open internet rules, both as a 
general matter and in the specific respects discussed below. We also 
seek comment on how policy goals enumerated in the Act or other federal 
statutes should inform our exercise of regulatory authority here.
1. Section 706 of the 1996 Act
    180. We seek comment on returning to an interpretation of section 
706 of the 1996 Act as granting the Commission regulatory authority 
and, in turn, relying on that authority as a basis for open internet 
rules. In particular, although the RIF Order departed from the 
Commission's prior interpretation of section 706 and instead concluded 
that the provision was merely hortatory, we propose to return to the 
Commission's prior view and interpret sections 706(a) and (b) of the 
1996 Act as grants of regulatory authority. We propose to do so in 
light of the considerations that persuaded the Commission to adopt such 
interpretations in the past, and that persuaded courts to affirm those 
interpretations. Consistent with that prior approach, we propose to 
rely on section 706(a) as part of our authority for open internet 
rules. We also propose to rely on section 706(b), in the event that the 
Commission were to conclude under section 706(a) that advanced 
telecommunications capability is not being deployed to all Americans in 
a reasonable and timely fashion. We seek comment on those proposals 
generally.
    181. First, we seek comment on the grounds for returning to the 
prior judicially affirmed interpretations of sections 706(a) and (b) of 
the 1996 Act as granting the Commission regulatory authority. The RIF 
Order principally grounded its rationale for changing the 
interpretation of section 706 on its view that section 706 was better 
interpreted

[[Page 76081]]

as hortatory, rather than as a grant of regulatory authority. To the 
extent that we instead believe that interpreting sections 706(a) and 
(b) as grants of regulatory authority represent the better reading of 
the statute, we believe that likewise should provide a basis for us to 
change our interpretation. We seek comment on this view. In addition, 
we seek comment on any other arguments bearing on whether and to what 
extent we should return to the prior interpretation of sections 706(a) 
and (b) as grants of regulatory authority.
    182. Second, we seek comment on specific rationales for 
interpreting sections 706(a) and (b) of the 1996 Act as grants of 
regulatory authority. In the 2010 Open Internet Order, the Commission 
explained why sections 706(a) and (b) each represent a grant of 
regulatory authority to the Commission after considering the statutory 
text, regulatory and judicial precedent, and legislative history, and 
rejecting objections to that interpretation. In addition, in the 2015 
Open Internet Order, the Commission built on the foundation of its 
explanations in the 2010 Open Internet Order, rejecting various 
objections to the interpretation of sections 706(a) and (b) as grants 
of regulatory authority and elaborating on the Commission's authority 
to adopt rules implementing that provision, and to enforce those rules. 
We seek comment on that reasoning and conclusions regarding the 
interpretation and implementation of section 706, and on the extent to 
which we should rely on that today. We also seek comment on whether and 
to what extent we also should draw upon the reasoning of court 
decisions affirming the Commission's interpretation of section 706 of 
the 1996 Act as granting regulatory authority--in particular, the D.C. 
Circuit's 2014 decision in Verizon and its 2016 decision in USTA, as 
well as the Tenth Circuit's 2014 decision in In re FCC 11-161.
    183. Third, to the extent that we interpret sections 706(a) and (b) 
of the 1996 Act as grants of regulatory authority, we propose to use 
that authority to adopt open internet rules here. The Commission 
previously concluded in the 2015 Open Internet Order and 2010 Open 
Internet Order that open internet rules were a reasonable way to 
implement Commission authority under sections 706(a) and (b), and the 
nexus between open internet rules and the directives in sections 706(a) 
and (b) was affirmed by the D.C. Circuit in Verizon. For those same 
reasons, we believe the open internet rules we seek comment on here 
would be a reasonable exercise of section 706(a) authority. We likewise 
believe that, in the event that the Commission concludes that advanced 
telecommunications capability is not being deployed to all Americans in 
a reasonable and timely fashion under section 706(b), the open internet 
rules we seek comment on here would be a reasonable exercise of 
authority under that provision as well.
    184. Finally, we seek comment on any other issues bearing on our 
interpretation and implementation of section 706 of the 1996 Act here, 
including possible objections to the interpretation of sections 706(a) 
and (b) as grants of regulatory authority. For example, when the D.C. 
Circuit concluded that the RIF Order permissibly reinterpreted section 
706 as hortatory, rather than as a grant of regulatory authority, the 
court focused on the recognized ambiguity of the statutory language and 
the Commission's justification ``that Section 706 lacks details 
`identify[ing] the providers or entities whose conduct could be 
regulated,' whereas other provisions of the Act that unambiguously 
grant regulatory authority do specify such details.'' We seek comment 
on that rationale. How is section 706 of the 1996 Act distinct in this 
regard from other provisions understood as grants of authority in the 
Telecommunications Act of 1996, the Communications Act of 1934, or 
other federal statutes? The RIF Order itself recognized that, in 
relying on section 257 of the Act as authority for the transparency 
rule, it was interpreting that provision as a grant of authority 
notwithstanding its lack of any identified universe of entities from 
which information could be obtained, explaining that ``other aspects of 
section 257 persuade us that our interpretation of that provision as a 
grant of authority.'' To what extent do other aspects of section 706 
bear on the reasonableness of interpreting sections 706(a) and (b) as 
grants of authority?
    185. We also seek comment on other theories discussed in the RIF 
Order as a basis for why section 706 of the 1996 Act not just 
permissibly could, but affirmatively should, be interpreted as merely 
hortatory, rather than a grant of regulatory authority to the 
Commission. For example, the RIF Order contended that interpreting 
sections 706(a) and (b) as grants of regulatory authority would allow 
the Commission ``to impose duties or adopt regulations equivalent to 
those directly addressed by the provisions of the Communications Act 
focused on promoting competition and/or deployment that go beyond the 
entities, contexts, and circumstances that bounded the Communications 
Act provisions.'' The RIF Order also argued that if sections 706(a) and 
(b) were interpreted as grants of regulatory authority that would 
enable the internet and information services to be heavily regulated in 
a manner inconsistent with policy goals reflected in the Act. We seek 
comment on those theories. The RIF Order acknowledged that the 
Commission's prior interpretation of section 706 was, by its own terms, 
constrained to be consistent with the Act, but claimed that such 
constraints did not adequately address the Order's statutory concerns. 
In the view of the RIF Order, seemingly the only outcomes of 
interpreting section 706 as granting regulatory authority would be 
extreme results where those constraints had little meaning and left the 
Commission with essentially unbounded authority or were such severe 
limitations as to render section 706 of little possible use. We 
tentatively conclude that this view is unfounded and invite more robust 
analysis of these issues in the record here, along with any related 
arguments.
    186. The RIF Order also cited concerns about the Commission's 
ability to enforce rules implementing section 706 of the 1996 Act as 
further grounds for interpreting it as merely hortatory. The Order did 
not reject the theory that section 706 could be read to include 
implicit enforcement authority, but contended that such implicit 
authority ``might enable actions like declaratory rulings or cease-and-
desist orders, but would not appear to encompass authority to impose 
penalties given the absence of statutory language clearly granting that 
authority.'' We seek comment on this understanding of the scope of 
potential enforcement authority that could be implicit in section 706. 
Even assuming arguendo that scope of enforcement authority were 
accurate, why should we conclude that the resulting scope of our 
enforcement authority is so insignificant as to counsel against 
interpreting sections 706(a) and (b) as grants of regulatory authority? 
Further, the RIF Order rejected the view that the use of section 4(i) 
of the Act to adopt rules implementing section 706 of the 1996 Act 
would be sufficient to bring those rules within the purview of the 
Commission's enforcement authority under section 503 of the Act. The 
RIF Order reasoned that enforcement authority under section 503 is 
limited to rules based on substantive regulatory authority under the 
Act itself, rather than the rulemaking authority in section 4(i). We 
seek comment on the merits of this interpretation.

[[Page 76082]]

2. Title II of the Act With Forbearance
    187. As in the 2015 Open Internet Order, we propose again to rely 
on sections 201, 202, and 208 of the Act, along with the related 
enforcement authorities of sections 206, 207, 209, 216, and 217, as 
additional legal authority for the proposed open internet rules. And 
consistent with the 2010 Open Internet Order and the RIF Order, and as 
affirmed by the D.C. Circuit in Mozilla, we propose also to rely on 
section 257 of the Act (now in conjunction with section 13 of the Act) 
as additional legal authority for the transparency rule, as we may 
modify it. We seek comment on these proposals.
    188. We also seek comment on any additional sources of authority 
under Title II of the Act that could serve as authority for open 
internet rules. For example, the RIF Order cataloged arguments about 
other possible sources of Title II authority for open internet rules in 
sections 251(a), 256, and 275 of the Act identified in the record 
there. The Commission at the time ultimately declined to rely on those 
sources of authority due to perceived shortcomings in the record 
regarding the justification for their use, and also took the view that 
they would not, even in the aggregate, provide authority for the 
Commission to adopt open internet rules addressing the full array of 
ISPs. We seek comment on those possible sources of authority, including 
both more-developed explanations for how and when they could serve as 
regulatory authority for open internet rules and whether there would be 
grounds for exercising that authority under the regulatory approach we 
propose here.
3. Title III of the Act for Mobile Providers
    189. As in the 2015 Open Internet Order, we propose to rely on our 
broad legal authority under Title III of the Act to protect the public 
interest through spectrum licensing and regulations--including sections 
303 and 316 of the Act--as additional legal authority for the proposed 
open internet rules in the case of mobile BIAS. The RIF Order conceded 
the viability of Title III authority in this regard, but declined to 
exercise that authority because it would be limited to rules for mobile 
ISPs, rather than providing authority for rules governing all ISPs. We 
do not believe that concern of the RIF Order is likely to arise under 
our proposed regulatory approach here, and we seek comment on that 
understanding. We recognize that the D.C. Circuit's Mozilla decision 
includes a brief statement as part of its review of the RIF Order's 
preemption decision stating that BIAS is not ``radio transmission,'' so 
Title III does not apply. But the RIF Order did not attempt to apply 
(or justify applying) Title III, and the Mozilla decision did not 
develop any reasoning in support of that assertion. Particularly given 
that backdrop, we do not believe the court's statement should be read 
to call into question the Commission's prior recognition that mobile 
BIAS falls within the scope of Title III. We seek comment on these 
views and on any additional provisions in Title III of the Act that 
could serve as authority for open internet rules in the case of mobile 
BIAS or otherwise.
4. Other Possible Sources of Legal Authority
    190. We seek comment on any other possible sources of legal 
authority for open internet rules. For example, the 2010 Open Internet 
Order relied on additional sources of authority apart from section 706 
of the 1996 Act and Titles II and III of the Act--in particular, 
sources under Title VI of the Act. The RIF Order expressly declined to 
rely on those sources of authority given what that Order identified as 
limitations regarding the justification for the use of those 
authorities, as well as the RIF Order's view that they would not, even 
in the aggregate, provide authority for the Commission to adopt open 
internet rules addressing the full array of ISPs. We seek more 
developed comment on that possible Title VI authority and on any other 
possible sources of authority under the Act.
    191. In addition, we seek comment on additional sources of 
authority outside the Act. For example, the recent bipartisan 
Infrastructure Act built upon the foundation of the transparency rule 
and broadband label requirements from the 2015 Open Internet Order to 
require the Commission to adopt new broadband label rules. Does that 
law provide additional authority for rules here, particularly as it 
relates to possible modifications of the transparency rule?
    192. We also seek comment on whether the Commission should rely on 
ancillary authority in conjunction with other primary sources of legal 
authority in adopting open internet rules in any respects. To the 
extent that commenters advocate such an approach, they should explain 
how the prerequisites for ancillary authority would be met, 
particularly by explaining why the action would help effectuate 
regulatory authority granted to the Commission under other statutory 
provisions. To exercise ancillary authority ``two conditions [must be] 
satisfied: (1) the Commission's general jurisdictional grant under 
Title I [of the Communications Act] covers the regulated subject and 
(2) the regulations are reasonably ancillary to the Commission's 
effective performance of its statutorily mandated responsibilities.''

H. Other Laws and Considerations

    193. The 2015 Open Internet Order discussed the relationship 
between the open internet rules adopted there and ISPs' rights or 
obligations with respect to other laws, safety and security 
considerations, or the ability of ISPs to make reasonable efforts to 
address transfers of unlawful content and unlawful transfers of 
content. We propose continuing that approach in the case of the rules 
upon which we seek comment here, and seek comment on that proposal, 
along with specific language for open internet rules intended to 
achieve the objectives discussed below, and any additional ways in 
which we should account for similar interests in the codified rules.
    194. Consistent with the 2015 Open Internet Order, we propose that 
the open internet rules upon which we seek comment here would not 
expand or contract ISPs' rights or obligations with respect to other 
laws or preclude them from responding to safety and security 
considerations--including the needs of emergency communications and law 
enforcement, public safety, and national security authorities. The 2015 
Open Internet Order specifically highlighted examples of other laws 
imposing requirements in these respects, such as the Communications 
Assistance for Law Enforcement Act, the Foreign Intelligence 
Surveillance Act, and the Electronic Communications Privacy Act, and we 
again seek comment as to those specific laws along with any others that 
should inform our analysis. We propose to adopt the same rule language 
in this regard as was adopted in the 2015 Open Internet Order:

    Nothing in this part supersedes any obligation or authorization 
a provider of broadband internet access service may have to address 
the needs of emergency communications or law enforcement, public 
safety, or national security authorities, consistent with or as 
permitted by applicable law, or limits the provider's ability to do 
so.

    We seek comment on this approach and on alternative approaches to 
protecting these interests, including whether the rule should capture 
other possible emergency communications and safety and security 
scenarios. For example, the 2015 Open Internet Order elected not to 
expand the application of its rule in this regard to public utilities 
and other critical infrastructure

[[Page 76083]]

operators, reasoning that those interests otherwise were protected 
under the approach it adopted. Is that same approach appropriate here, 
or should we address safety and security interests related to public 
utilities and other critical infrastructure operators in some other way 
in any rules we may adopt here? Should our rules go further to 
affirmatively require ISPs to take certain steps to address the needs 
of emergency communications or law enforcement, public safety, or 
national security authorities? For example, should the rules go further 
in addressing the categories of concerns raised before the Commission 
on remand of the RIF Order, such as the needs of public safety 
personnel; concerns about particular harms to public safety that could 
result from blocking, throttling, or paid prioritization; concerns 
about public safety needs for individuals with disabilities; or 
concerns related to critical infrastructure?
    195. Also consistent with the 2015 Open Internet Order, we propose 
that the open internet rules upon which we seek comment here would 
protect only lawful content, and would not be intended to inhibit 
efforts by ISPs to address unlawful transfers of content or transfers 
of unlawful content. We propose to adopt the same rule language in this 
regard as was adopted in the 2015 Open Internet Order:

    Nothing in this part prohibits reasonable efforts by a provider 
of broadband internet access service to address copyright 
infringement or other unlawful activity.

    We seek comment on that approach and on alternative approaches to 
protecting these interests, including whether the rule should capture 
other possible scenarios where ISPs might seek to address unlawful 
transfers of content or transfers of unlawful content.
    196. We also seek comment on whether there are other categories of 
otherwise-applicable laws or legal requirements that should be 
addressed through comparable rules as those we propose to address 
emergency communications and safety and security scenarios and efforts 
by ISPs to address unlawful transfers of content or transfers of 
unlawful content. For example, the RIF Remand Order noted comments 
expressing concern about the possible interplay between ISPs' practices 
and laws protecting individuals with disabilities. Given that the 
regulatory approach proposed here differs significantly from the one at 
issue in the RIF Remand Order, would such concerns still be relevant 
here? If so, would it be appropriate to address them through a rule 
specifically focused on those categories of laws? Are there additional 
otherwise-existing legal requirements imposed on ISPs that we should 
expressly accommodate in any rules we adopt?

IV. Constitutional Considerations

    197. Consistent with the constitutional considerations the 
Commission has evaluated in connection with its regulatory approach to 
BIAS in the past, we seek comment on First Amendment speech issues and 
Fifth Amendment takings issues. In addition, we also seek comment on 
any other constitutional considerations that should inform our 
evaluation of the issues raised in this proceeding.

A. First Amendment

    198. We seek comment on any First Amendment implications of the 
issues raised in this proceeding, both as a general matter and in the 
specific respects discussed below. Consistent with prior Commission 
analyses, we believe our open internet conduct rule proposals and any 
modifications to the transparency rule are permissible exercises of 
authority under the First Amendment.
1. Free Speech Rights
    199. We anticipate that our proposals would withstand any review 
under the First Amendment for the same reasons explained by the 
Commission in the 2015 Open Internet Order. In particular, as explained 
in that Order, and ultimately affirmed by the D.C. Circuit in USTA, 
under traditional First Amendment doctrine there are no First Amendment 
concerns raised by the conduct regulation of common carriers. We think 
the same reasoning is likely to apply here, and seek comment on that 
view.
    200. Even if a court departed from the traditional common carrier 
First Amendment precedent, we believe that our proposed conduct rules 
are likely to satisfy First Amendment scrutiny for the same reasons 
further identified in the 2015 Open Internet Order. Consistent with the 
explanation there, we believe the conduct rules are likely to be seen 
as content-neutral and thus subject to intermediate First Amendment 
scrutiny in this scenario. We also find it likely that the proposed 
rules readily could survive that level of scrutiny--advancing an 
important or substantial government interest unrelated to limiting 
speech without burdening more speech than necessary--based on the same 
governmental interests and nexus to the conduct rules identified by the 
Commission in the 2015 Open Internet Order. We seek comment on that 
view and on any additional evidence and arguments bearing on the 
potential application of the First Amendment in the case of the conduct 
rules proposed here.
    201. Because the 2015 Open Internet Order was limited to offers of 
``mass-market'' broadband access to ``all or substantially all internet 
endpoints,'' it would not have applied to offerings that were clearly 
as advertised as providing only ``filtered'' internet access catering 
to a particular audience or as providing access only to curated 
content. We propose to adopt the same approach here and we seek comment 
on this proposal. We also seek comment on whether or to what extent 
ISPs engage in content moderation, curation, or otherwise limit or 
exercise control over what third-party content their users are able to 
access on the internet. We are aware that some social media platforms 
and other edge providers purport to engage in various forms of content 
moderation or editorial control over content they host or transmit, and 
typically announce that they engage in such practices in their terms of 
service of user agreements; is there any record of ISPs announcing and 
engaging in comparable activity?
    202. We also seek comment on the competing First Amendment views 
expressed by judges in separate opinions accompanying the D.C. 
Circuit's denial of requests to rehear the USTA case en banc. On one 
hand, then-Judge Kavanaugh's dissent expressed First Amendment concerns 
with the 2015 Open Internet Order on the theory that ``the First 
Amendment bars the Government from restricting the editorial discretion 
of internet service providers, absent a showing that an internet 
service provider possesses market power in a relevant geographic 
market''--a showing that the Commission had not made there. On the 
other hand, Judges Srinivasan and Tatel, concurring in the denial of 
rehearing en banc, responded to the dissent by arguing that ``no 
Supreme Court decision supports the counterintuitive notion that the 
First Amendment entitles an ISP to engage in the kind of conduct barred 
by the net neutrality rule--i.e., to hold itself out to potential 
customers as offering them an unfiltered pathway to any web content of 
their own choosing, but then, once they have subscribed, to turn around 
and limit their access to certain web content based on the ISP's own 
commercial preferences.'' We seek comment on those views.
    203. Referencing statements in the First Amendment analysis in 
Judges Srinivasan's and Tatel's concurrence,

[[Page 76084]]

the RIF Order contended that the 2015 Open Internet Order ``allows ISPs 
to offer curated services, which would allow ISPs to escape the reach 
of the [2015 Open Internet Order] and to filter content on viewpoint 
grounds.'' We seek comment on the accuracy of that characterization and 
how it should inform our analysis and approach here.
2. Compelled Disclosure
    204. We also believe that any modifications to the transparency 
rule are likely to satisfy the First Amendment for the same reasons 
relied on by the Commission in its justification of the transparency 
rules at issue in the 2015 Open Internet Order and the RIF Order. As a 
threshold matter, as explained in the RIF Order, we believe the speech 
addressed by our transparency rule is likely to be limited to 
commercial speech. We seek comment on that view.
    205. We also believe that our transparency rule, as we may modify 
it, is likely to be understood by a court as limited to compelling the 
disclosure of factual, noncontroversial information under circumstances 
that fall within the Zauderer First Amendment framework, consistent 
with the Commission's analysis in the 2015 Open Internet Order. Also 
consistent with the analysis in the 2015 Open Internet Order, we 
believe any modifications to the transparency rule are likely to be a 
reasonable way of advancing government interests in preventing consumer 
deception, among other things, and thus would satisfy the Zauderer 
standard. We believe any modifications to the disclosures in our 
transparency rule would be the sort of ``purely factual and 
uncontroversial information about the terms under which . . . services 
will be available'' to which Zauderer applies. We seek comment on the 
continued applicability of that analysis from the 2015 Open Internet 
Order.
    206. Alternatively, to the extent that a court evaluated any 
modifications to the transparency rule under the Central Hudson 
framework, which applies generally to commercial speech, we believe it 
also likely would satisfy First Amendment scrutiny under that standard 
for the same reasons given in that regard in the RIF Order. We believe 
any modifications to the transparency rule are likely to directly 
advance substantial government interests and be no more extensive than 
necessary, for reasons such as those identified in the RIF Order. We 
seek comment on these views and any other First Amendment 
considerations.

B. Fifth Amendment Takings

    207. Consistent with the conclusions in the 2015 Open Internet 
Order, we do not believe the proposals in this Notice--either the 
proposed classification decisions or the proposed rules--are likely to 
result in per se takings because we do not anticipate that they would 
grant third parties a right to physical occupation of the ISPs' 
property. And as the 2015 Open Internet Order recognized, where private 
parties voluntarily open their networks to end users and edge 
providers, reasonable regulation of the use of their property poses no 
takings issue. We seek comment on the continued applicability of those 
analyses here and any other considerations relevant to possible per se 
takings arguments.
    208. Also consistent with the conclusions in the 2015 Open Internet 
Order, we do not believe the proposals in this Notice--either the 
proposed classification decisions or the proposed rules--are likely to 
result in regulatory takings. Outside of per se takings cases, courts 
analyze putative government takings through ``essentially ad hoc, 
factual inquiries'' into a variety of unweighted factors such as the 
``economic impact of the regulation,'' the degree of interference with 
``investment-backed expectations,'' and ``the character of the 
government action.'' The 2015 Open Internet Order weighed these factors 
and concluded that the actions taken there did not constitute 
regulatory takings, and we believe the same is likely to be true of our 
proposals here. We seek comment on these views.

V. Procedural Matters

    209. Ex Parte Rules. This proceeding shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. Persons making ex parte presentations must file a copy 
of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda, or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with Rule 1.1206(b). In proceedings governed by 
Rule 1.49(f) or for which the Commission has made available a method of 
electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.
    210. Initial Regulatory Flexibility Analysis. Pursuant to the 
Regulatory Flexibility Act (RFA), the Commission has prepared an 
Initial Regulatory Flexibility Analysis (IRFA) of the possible 
significant economic impact on small entities of the policies and 
actions considered in this NPRM. Written public comments are requested 
on this IRFA. Comments must be identified as responses to the IRFA and 
must be filed by the deadlines for comments on the NPRM. The 
Commission's Office of the Secretary, Reference Information Center, 
will send a copy of the NPRM, including the IRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration.
    211. Paperwork Reduction Act of 1995 Analysis. This document 
contains proposed new or modified information collection requirements. 
The Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and the Office of Management and 
Budget (OMB) to comment on the information collection requirements 
contained in this document, as required by the Paperwork Reduction Act 
of 1995, Public Law 104-13. In addition, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, we seek specific 
comment on how we might further reduce the information collection 
burden for small business concerns with fewer than 25 employees.

[[Page 76085]]

VI. Initial Regulatory Flexibility Analysis

    212. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities from the policies and rules 
proposed in the Notice of Proposed Rulemaking (Notice). Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
provided on the first page of the Notice. The Commission will send a 
copy of the Notice, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). In addition, the 
Notice and IRFA (or summaries thereof) will be published in the Federal 
Register.

A. Need for, and Objectives of, the Proposed Rules

    213. In the Notice, we propose to reestablish the Commission's 
authority over broadband internet access service (BIAS) by classifying 
BIAS as a telecommunications service under Title II of the 
Communications Act of 1934, as amended (Act). We further propose to 
reclassify mobile BIAS as a commercial mobile service. The COVID-19 
pandemic showed how essential BIAS connections are for consumers' 
participation in today's society and economy, for work, health, 
education, community, and everyday life. In light of this reality, we 
believe that looking anew at the classification of BIAS is necessary 
and timely given the critical importance of ensuring the Commission's 
authority to fulfill policy objectives and responsibilities to protect 
this vital service. Notable among these is enabling the Commission to 
safeguard the fair and open internet though a national regulatory 
approach. The Commission also has an important statutory mandate to 
protect ``life and property'' by supporting national security and 
public safety.
    214. Restoring Title II authority will allow the Commission to 
safeguard and secure the open internet in three significant ways. 
First, this authority will allow the Commission to protect consumers, 
including by issuing straightforward, clear rules to prevent internet 
service providers from engaging in practices harmful to consumers, 
competition, and public safety, and by establishing a national 
regulatory approach rather than disparate requirements that vary state-
by-state. Second, reclassification will strengthen the Commission's 
ability to secure communications networks and critical infrastructure 
against national security threats. Third, the reclassification will 
enable the Commission to protect public safety during natural disasters 
and other emergencies. We also anticipate that the proper 
classification of BIAS as a telecommunications service will enhance the 
Commission's ability to advance other important interests, including 
protection of consumers' privacy and data security interests and 
consumers' ability to access BIAS. Beyond these areas, we believe that 
classification of BIAS as a telecommunications service represents the 
best reading of the text of the Act in light of the marketplace reality 
of how the service is offered and perceived today.
    215. To protect the openness of the internet, we propose to return 
to the basic framework the Commission adopted in 2015 by reinstating 
straightforward, clear rules that are designed to prevent internet 
service providers (ISPs) from engaging in practices harmful to 
consumers, competition, and public safety, and that would provide the 
basis for a national regulatory approach toward BIAS, consistent with 
the Commission's longstanding policy approach to protect internet 
openness prior to the RIF Order. We first propose to reinstate the 
rules adopted in the 2015 Open Internet Order that prohibit ISPs from 
blocking, throttling, or engaging in paid or affiliated prioritization 
arrangements. We similarly propose to reinstate the general conduct 
standard adopted in the 2015 Open Internet Order, which would prohibit 
practices that cause unreasonable interference or unreasonable 
disadvantage to consumers or edge providers. Finally, with regard to 
transparency, we propose to retain the current disclosures, and we seek 
comment on the means of disclosure, the interplay between the 
transparency rule and the broadband label requirements, and any 
additional enhancements or changes we should consider. We believe that 
the rules we propose today will establish a baseline that the 
Commission can use to prevent and address conduct that harms consumers 
and competition when it occurs.

B. Legal Basis

    216. The proposed action is authorized pursuant to sections 1, 2, 
4(i)-(j), 13, 201, 202, 208, 257, 303, and 316, of the Communications 
Act of 1934, as amended, and section 706 of the Telecommunications Act 
of 1996, as amended, 47 U.S.C. 151, 152, 154(i)-(j), 163, 201, 202, 
208, 257, 303, 316, and 1302.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Would Apply

    217. The RFA directs agencies to provide a description of, and 
where feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. A ``small-business concern'' is one which: (1) is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (SBA).
1. Total Small Entities
    218. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. Our actions, over time, may affect small entities that 
are not easily categorized at present. We therefore describe, at the 
outset, three broad groups of small entities that could be directly 
affected herein. First, while there are industry specific size 
standards for small businesses that are used in the regulatory 
flexibility analysis, according to data from the SBA's Office of 
Advocacy, in general a small business is an independent business having 
fewer than 500 employees. These types of small businesses represent 
99.9% of all businesses in the United States, which translates to 33.2 
million businesses.
    219. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2020, there were 
approximately 447,689 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    220. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census

[[Page 76086]]

Bureau data from the 2017 Census of Governments indicate there were 
90,075 local governmental jurisdictions consisting of general purpose 
governments and special purpose governments in the United States. Of 
this number, there were 36,931 general purpose governments (county, 
municipal, and town or township) with populations of less than 50,000 
and 12,040 special purpose governments--independent school districts 
with enrollment populations of less than 50,000. Accordingly, based on 
the 2017 U.S. Census of Governments data, we estimate that at least 
48,971 entities fall into the category of ``small governmental 
jurisdictions.''
2. Wired Broadband Internet Access Service Providers
    221. Wired Broadband Internet Access Service Providers (Wired 
ISPs). Providers of wired broadband internet access service include 
various types of providers except dial-up internet access providers. 
Wireline service that terminates at an end user location or mobile 
device and enables the end user to receive information from and/or send 
information to the internet at information transfer rates exceeding 200 
kilobits per second (kbps) in at least one direction is classified as a 
broadband connection under the Commission's rules. Wired broadband 
internet services fall in the Wired Telecommunications Carriers 
industry. The SBA small business size standard for this industry 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms that operated in 
this industry for the entire year. Of this number, 2,964 firms operated 
with fewer than 250 employees.
    222. Additionally, according to Commission data on internet access 
services as of June 30, 2019, nationwide there were approximately 2,747 
providers of connections over 200 kbps in at least one direction using 
various wireline technologies. The Commission does not collect data on 
the number of employees for providers of these services, therefore, at 
this time we are not able to estimate the number of providers that 
would qualify as small under the SBA's small business size standard. 
However, in light of the general data on fixed technology service 
providers in the Commission's 2022 Communications Marketplace Report, 
we believe that the majority of wireline internet access service 
providers can be considered small entities.
3. Wireline Providers
    223. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired communications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies. Establishments in this industry use the wired 
telecommunications network facilities that they operate to provide a 
variety of services, such as wired telephony services, including Voice-
over Internet Protocol (VoIP) services, wired (cable) audio and video 
programming distribution, and wired broadband internet services. By 
exception, establishments providing satellite television distribution 
services using facilities and infrastructure that they operate are 
included in this industry. Wired Telecommunications Carriers are also 
referred to as wireline carriers or fixed local service providers.
    224. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms that operated in this industry for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 4,590 providers 
that reported they were engaged in the provision of fixed local 
services. Of these providers, the Commission estimates that 4,146 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    225. Incumbent Local Exchange Carriers (Incumbent LECs). Neither 
the Commission nor the SBA have developed a small business size 
standard specifically for incumbent local exchange carriers. Wired 
Telecommunications Carriers is the closest industry with an SBA small 
business size standard. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms in this industry that operated for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 1,212 providers 
that reported they were incumbent local exchange service providers. Of 
these providers, the Commission estimates that 916 providers have 1,500 
or fewer employees. Consequently, using the SBA's small business size 
standard, the Commission estimates that the majority of incumbent local 
exchange carriers can be considered small entities.
    226. Competitive Local Exchange Carriers (Competitive LECs). 
Neither the Commission nor the SBA has developed a size standard for 
small businesses specifically applicable to local exchange services. 
Providers of these services include several types of competitive local 
exchange service providers. Wired Telecommunications Carriers is the 
closest industry with an SBA small business size standard. The SBA 
small business size standard for Wired Telecommunications Carriers 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms that operated in 
this industry for the entire year. Of this number, 2,964 firms operated 
with fewer than 250 employees. Additionally, based on Commission data 
in the 2022 Universal Service Monitoring Report, as of December 31, 
2021, there were 3,378 providers that reported they were competitive 
local exchange service providers. Of these providers, the Commission 
estimates that 3,230 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
    227. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA have developed a small business size standard specifically for 
Interexchange Carriers. Wired Telecommunications Carriers is the 
closest industry with an SBA small business size standard. The SBA 
small business size standard for Wired Telecommunications Carriers 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms that operated in 
this industry for the entire year. Of this number, 2,964 firms operated 
with fewer than 250 employees. Additionally, based on Commission data 
in the 2022 Universal Service Monitoring Report, as of December 31, 
2021, there were 127 providers that reported they were engaged in the 
provision of interexchange services. Of these providers, the Commission 
estimates

[[Page 76087]]

that 109 providers have 1,500 or fewer employees. Consequently, using 
the SBA's small business size standard, the Commission estimates that 
the majority of providers in this industry can be considered small 
entities.
    228. Operator Service Providers (OSPs). Neither the Commission nor 
the SBA has developed a small business size standard specifically for 
operator service providers. The closest applicable industry with an SBA 
small business size standard is Wired Telecommunications Carriers. The 
SBA small business size standard classifies a business as small if it 
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 3,054 firms in this industry that operated for the 
entire year. Of this number, 2,964 firms operated with fewer than 250 
employees. Additionally, based on Commission data in the 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 20 
providers that reported they were engaged in the provision of operator 
services. Of these providers, the Commission estimates that all 20 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, all of these providers can be considered 
small entities.
    229. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a definition for small businesses specifically applicable to 
Other Toll Carriers. This category includes toll carriers that do not 
fall within the categories of interexchange carriers, operator service 
providers, prepaid calling card providers, satellite service carriers, 
or toll resellers. Wired Telecommunications Carriers is the closest 
industry with an SBA small business size standard. The SBA small 
business size standard for Wired Telecommunications Carriers classifies 
firms having 1,500 or fewer employees as small. U.S. Census Bureau data 
for 2017 show that there were 3,054 firms in this industry that 
operated for the entire year. Of this number, 2,964 firms operated with 
fewer than 250 employees. Additionally, based on Commission data in the 
2022 Universal Service Monitoring Report, as of December 31, 2021, 
there were 90 providers that reported they were engaged in the 
provision of other toll services. Of these providers, the Commission 
estimates that 87 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
4. Wireless Providers--Fixed and Mobile
    230. The broadband internet access service provider category 
covered by this Notice may cover multiple wireless firms and categories 
of regulated wireless services. Thus, to the extent the wireless 
services listed below are used by wireless firms for broadband internet 
access services, the proposed actions may have an impact on those small 
businesses as set forth above and further below. In addition, for those 
services subject to auctions, we note that, as a general matter, the 
number of winning bidders that claim to qualify as small businesses at 
the close of an auction does not necessarily represent the number of 
small businesses currently in service. Also, the Commission does not 
generally track subsequent business size unless, in the context of 
assignments and transfers or reportable eligibility events, unjust 
enrichment issues are implicated.
    231. Wireless Broadband internet Access Service Providers (Wireless 
ISPs or WISPs). Providers of wireless broadband internet access service 
include fixed and mobile wireless providers. The Commission defines a 
WISP as ``[a] company that provides end-users with wireless access to 
the internet[.]'' Wireless service that terminates at an end user 
location or mobile device and enables the end user to receive 
information from and/or send information to the internet at information 
transfer rates exceeding 200 kilobits per second (kbps) in at least one 
direction is classified as a broadband connection under the 
Commission's rules. Neither the SBA nor the Commission have developed a 
size standard specifically applicable to Wireless Broadband internet 
Access Service Providers. The closest applicable industry with an SBA 
small business size standard is Wireless Telecommunications Carriers 
(except Satellite). The SBA size standard for this industry classifies 
a business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show that there were 2,893 firms in this industry 
that operated for the entire year. Of that number, 2,837 firms employed 
fewer than 250 employees.
    232. Additionally, according to Commission data on internet access 
services as of June 30, 2019, nationwide there were approximately 1,237 
fixed wireless and 70 mobile wireless providers of connections over 200 
kbps in at least one direction. The Commission does not collect data on 
the number of employees for providers of these services, therefore, at 
this time we are not able to estimate the number of providers that 
would qualify as small under the SBA's small business size standard. 
However, based on data in the Commission's 2022 Communications 
Marketplace Report on the small number of large mobile wireless 
nationwide and regional facilities-based providers, the dozens of small 
regional facilities-based providers and the number of wireless mobile 
virtual network providers in general, as well as on terrestrial fixed 
wireless broadband providers in general, we believe that the majority 
of wireless internet access service providers can be considered small 
entities.
    233. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
SBA size standard for this industry classifies a business as small if 
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 2,893 firms in this industry that operated for the 
entire year. Of that number, 2,837 firms employed fewer than 250 
employees. Additionally, based on Commission data in the 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 594 
providers that reported they were engaged in the provision of wireless 
services. Of these providers, the Commission estimates that 511 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    234. Wireless Communications Services. Wireless Communications 
Services (WCS) can be used for a variety of fixed, mobile, 
radiolocation, and digital audio broadcasting satellite services. 
Wireless spectrum is made available and licensed for the provision of 
wireless communications services in several frequency bands subject to 
part 27 of the Commission's rules. Wireless Telecommunications Carriers 
(except Satellite) is the closest industry with an SBA small business 
size standard applicable to these services. The SBA small business size 
standard for this industry classifies a business as small if it has 
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 
there were 2,893 firms that operated in this industry for the entire 
year. Of this number, 2,837 firms employed fewer

[[Page 76088]]

than 250 employees. Thus under the SBA size standard, the Commission 
estimates that a majority of licensees in this industry can be 
considered small.
    235. The Commission's small business size standards with respect to 
WCS involve eligibility for bidding credits and installment payments in 
the auction of licenses for the various frequency bands included in 
WCS. When bidding credits are adopted for the auction of licenses in 
WCS frequency bands, such credits may be available to several types of 
small businesses based on average gross revenues (small, very small, 
and entrepreneur) pursuant to the competitive bidding rules adopted in 
conjunction with the requirements for the auction and/or as identified 
in the designated entities section in part 27 of the Commission's rules 
for the specific WCS frequency bands.
    236. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    237. Wireless Resellers. Neither the Commission nor the SBA have 
developed a small business size standard specifically for Wireless 
Resellers. The closest industry with an SBA small business size 
standard is Telecommunications Resellers. The Telecommunications 
Resellers industry comprises establishments engaged in purchasing 
access and network capacity from owners and operators of 
telecommunications networks and reselling wired and wireless 
telecommunications services (except satellite) to businesses and 
households. Establishments in this industry resell telecommunications 
and they do not operate transmission facilities and infrastructure. 
Mobile virtual network operators (MVNOs) are included in this industry. 
Under the SBA size standard for this industry, a business is small if 
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that 1,386 firms in this industry provided resale services during that 
year. Of that number, 1,375 firms operated with fewer than 250 
employees. Thus, for this industry under the SBA small business size 
standard, the majority of providers can be considered small entities.
    238. 1670-1675 MHz Services. These wireless communications services 
can be used for fixed and mobile uses, except aeronautical mobile. 
Wireless Telecommunications Carriers (except Satellite) is the closest 
industry with an SBA small business size standard applicable to these 
services. The SBA size standard for this industry classifies a business 
as small if it has 1,500 or fewer employees. U.S. Census Bureau data 
for 2017 show that there were 2,893 firms that operated in this 
industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. Thus under the SBA size standard, the 
Commission estimates that a majority of licensees in this industry can 
be considered small.
    239. According to Commission data as of November 2021, there were 
three active licenses in this service. The Commission's small business 
size standards with respect to 1670-1675 MHz Services involve 
eligibility for bidding credits and installment payments in the auction 
of licenses for these services. For licenses in the 1670-1675 MHz 
service band, a ``small business'' is defined as an entity that, 
together with its affiliates and controlling interests, has average 
gross revenues not exceeding $40 million for the preceding three years, 
and a ``very small business'' is defined as an entity that, together 
with its affiliates and controlling interests, has had average annual 
gross revenues not exceeding $15 million for the preceding three years. 
The 1670-1675 MHz service band auction's winning bidder did not claim 
small business status.
    240. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    241. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services, and specialized mobile radio 
telephony carriers. The closest applicable industry with an SBA small 
business size standard is Wireless Telecommunications Carriers (except 
Satellite). The size standard for this industry under SBA rules is that 
a business is small if it has 1,500 or fewer employees. For this 
industry, U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated for the entire year. Of this number, 2,837 firms 
employed fewer than 250 employees. Additionally, based on Commission 
data in the 2022 Universal Service Monitoring Report, as of December 
31, 2021, there were 331 providers that reported they were engaged in 
the provision of cellular, personal communications services, and 
specialized mobile radio services. Of these providers, the Commission 
estimates that 255 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
    242. Broadband Personal Communications Service. The broadband 
personal communications services (PCS) spectrum encompasses services in 
the 1850-1910 and 1930-1990 MHz bands. The closest industry with an SBA 
small business size standard applicable to these services is Wireless 
Telecommunications Carriers (except Satellite). The SBA small business 
size standard for this industry classifies a business as small if it 
has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 2,893 firms that operated in this industry for the 
entire year. Of this number, 2,837 firms employed fewer than 250 
employees. Thus under the SBA size standard, the Commission estimates 
that a majority of licensees in this industry can be considered small.
    243. Based on Commission data as of November 2021, there were 
approximately 5,060 active licenses in the Broadband PCS service. The 
Commission's small business size standards with respect to Broadband 
PCS involve eligibility for bidding credits and installment payments in 
the auction of licenses for these services. In auctions for these 
licenses, the Commission defined ``small business'' as an entity that, 
together with its affiliates and controlling interests, has average 
gross revenues not exceeding $40 million for the preceding three years, 
and a ``very small business'' as an entity that, together with its 
affiliates and controlling interests, has had

[[Page 76089]]

average annual gross revenues not exceeding $15 million for the 
preceding three years. Winning bidders claiming small business credits 
won Broadband PCS licenses in C, D, E, and F Blocks.
    244. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these, at this time we are not able to estimate the 
number of licensees with active licenses that would qualify as small 
under the SBA's small business size standard.
    245. Specialized Mobile Radio Licenses. Special Mobile Radio (SMR) 
licenses allow licensees to provide land mobile communications services 
(other than radiolocation services) in the 800 MHz and 900 MHz spectrum 
bands on a commercial basis including but not limited to services used 
for voice and data communications, paging, and facsimile services, to 
individuals, Federal Government entities, and other entities licensed 
under Part 90 of the Commission's rules. Wireless Telecommunications 
Carriers (except Satellite) is the closest industry with an SBA small 
business size standard applicable to these services. The SBA size 
standard for this industry classifies a business as small if it has 
1,500 or fewer employees. For this industry, U.S. Census Bureau data 
for 2017 show that there were 2,893 firms in this industry that 
operated for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. Additionally, based on Commission data in the 
2022 Universal Service Monitoring Report, as of December 31, 2021, 
there were 95 providers that reported they were of SMR (dispatch) 
providers. Of this number, the Commission estimates that all 95 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, these 119 SMR licensees can be considered 
small entities.
    246. Based on Commission data as of December 2021, there were 3,924 
active SMR licenses. However, since the Commission does not collect 
data on the number of employees for licensees providing SMR services, 
at this time we are not able to estimate the number of licensees with 
active licenses that would qualify as small under the SBA's small 
business size standard. Nevertheless, for purposes of this analysis the 
Commission estimates that the majority of SMR licensees can be 
considered small entities using the SBA's small business size standard.
    247. Lower 700 MHz Band Licenses. The lower 700 MHz band 
encompasses spectrum in the 698-746 MHz frequency bands. Permissible 
operations in these bands include flexible fixed, mobile, and broadcast 
uses, including mobile and other digital new broadcast operation; fixed 
and mobile wireless commercial services (including FDD- and TDD-based 
services); as well as fixed and mobile wireless uses for private, 
internal radio needs, two-way interactive, cellular, and mobile 
television broadcasting services. Wireless Telecommunications Carriers 
(except Satellite) is the closest industry with an SBA small business 
size standard applicable to licenses providing services in these bands. 
The SBA small business size standard for this industry classifies a 
business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show that there were 2,893 firms that operated in 
this industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. Thus under the SBA size standard, the 
Commission estimates that a majority of licensees in this industry can 
be considered small.
    248. According to Commission data as of December 2021, there were 
approximately 2,824 active Lower 700 MHz Band licenses. The 
Commission's small business size standards with respect to Lower 700 
MHz Band licensees involve eligibility for bidding credits and 
installment payments in the auction of licenses. For auctions of Lower 
700 MHz Band licenses the Commission adopted criteria for three groups 
of small businesses. A very small business was defined as an entity 
that, together with its affiliates and controlling interests, has 
average annual gross revenues not exceeding $15 million for the 
preceding three years, a small business was defined as an entity that, 
together with its affiliates and controlling interests, has average 
gross revenues not exceeding $40 million for the preceding three years, 
and an entrepreneur was defined as an entity that, together with its 
affiliates and controlling interests, has average gross revenues not 
exceeding $3 million for the preceding three years. In auctions for 
Lower 700 MHz Band licenses seventy-two winning bidders claiming a 
small business classification won 329 licenses, twenty-six winning 
bidders claiming a small business classification won 214 licenses, and 
three winning bidders claiming a small business classification won all 
five auctioned licenses.
    249. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    250. Upper 700 MHz Band Licenses. The upper 700 MHz band 
encompasses spectrum in the 746-806 MHz bands. Upper 700 MHz D Block 
licenses are nationwide licenses associated with the 758-763 MHz and 
788-793 MHz bands. Permissible operations in these bands include 
flexible fixed, mobile, and broadcast uses, including mobile and other 
digital new broadcast operation; fixed and mobile wireless commercial 
services (including FDD- and TDD-based services); as well as fixed and 
mobile wireless uses for private, internal radio needs, two-way 
interactive, cellular, and mobile television broadcasting services. 
Wireless Telecommunications Carriers (except Satellite) is the closest 
industry with an SBA small business size standard applicable to 
licenses providing services in these bands. The SBA small business size 
standard for this industry classifies a business as small if it has 
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 
there were 2,893 firms that operated in this industry for the entire 
year. Of that number, 2,837 firms employed fewer than 250 employees. 
Thus, under the SBA size standard, the Commission estimates that a 
majority of licensees in this industry can be considered small.
    251. According to Commission data as of December 2021, there were 
approximately 152 active Upper 700 MHz Band licenses. The Commission's 
small business size standards with respect to Upper 700 MHz Band 
licensees involve eligibility for bidding credits and installment 
payments in the auction of licenses. For the auction of these licenses, 
the Commission defined a ``small business'' as an entity that, together 
with its affiliates and

[[Page 76090]]

controlling principals, has average gross revenues not exceeding $40 
million for the preceding three years, and a ``very small business'' as 
an entity that, together with its affiliates and controlling 
principals, has average gross revenues that are not more than $15 
million for the preceding three years. Pursuant to these definitions, 
three winning bidders claiming very small business status won five of 
the twelve available licenses.
    252. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    253. 700 MHz Guard Band Licensees. The 700 MHz Guard Band 
encompasses spectrum in 746-747/776-777 MHz and 762-764/792-794 MHz 
frequency bands. Wireless Telecommunications Carriers (except 
Satellite) is the closest industry with an SBA small business size 
standard applicable to licenses providing services in these bands. The 
SBA small business size standard for this industry classifies a 
business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show that there were 2,893 firms that operated in 
this industry for the entire year. Of this number, 2,837 firms employed 
fewer than 250 employees. Thus under the SBA size standard, the 
Commission estimates that a majority of licensees in this industry can 
be considered small.
    254. According to Commission data as of December 2021, there were 
approximately 224 active 700 MHz Guard Band licenses. The Commission's 
small business size standards with respect to 700 MHz Guard Band 
licensees involve eligibility for bidding credits and installment 
payments in the auction of licenses. For the auction of these licenses, 
the Commission defined a ``small business'' as an entity that, together 
with its affiliates and controlling principals, has average gross 
revenues not exceeding $40 million for the preceding three years, and a 
``very small business'' as an entity that, together with its affiliates 
and controlling principals, has average gross revenues that are not 
more than $15 million for the preceding three years. Pursuant to these 
definitions, five winning bidders claiming one of the small business 
status classifications won 26 licenses, and one winning bidder claiming 
small business won two licenses. None of the winning bidders claiming a 
small business status classification in these 700 MHz Guard Band 
license auctions had an active license as of December 2021.
    255. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    256. Air-Ground Radiotelephone Service. Air-Ground Radiotelephone 
Service is a wireless service in which licensees are authorized to 
offer and provide radio telecommunications service for hire to 
subscribers in aircraft. A licensee may provide any type of air-ground 
service (i.e., voice telephony, broadband internet, data, etc.) to 
aircraft of any type, and serve any or all aviation markets 
(commercial, government, and general). A licensee must provide service 
to aircraft and may not provide ancillary land mobile or fixed services 
in the 800 MHz air-ground spectrum.
    257. The closest industry with an SBA small business size standard 
applicable to these services is Wireless Telecommunications Carriers 
(except Satellite). The SBA small business size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    258. Based on Commission data as of December 2021, there were 
approximately four licensees with 110 active licenses in the Air-Ground 
Radiotelephone Service. The Commission's small business size standards 
with respect to Air-Ground Radiotelephone Service involve eligibility 
for bidding credits and installment payments in the auction of 
licenses. For purposes of auctions, the Commission defined ``small 
business'' as an entity that, together with its affiliates and 
controlling interests, has average gross revenues not exceeding $40 
million for the preceding three years, and a ``very small business'' as 
an entity that, together with its affiliates and controlling interests, 
has had average annual gross revenues not exceeding $15 million for the 
preceding three years. In the auction of Air-Ground Radiotelephone 
Service licenses in the 800 MHz band, neither of the two winning 
bidders claimed small business status.
    259. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, the Commission 
does not collect data on the number of employees for licensees 
providing these services therefore, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    260. Advanced Wireless Services (AWS)--(1710-1755 MHz and 2110-2155 
MHz bands (AWS-1); 1915-1920 MHz, 1995-2000 MHz, 2020-2025 MHz and 
2175-2180 MHz bands (AWS-2); 2155-2175 MHz band (AWS-3); 2000-2020 MHz 
and 2180-2200 MHz (AWS-4). Spectrum is made available and licensed in 
these bands for the provision of various wireless communications 
services. Wireless Telecommunications Carriers (except Satellite) is 
the closest industry with an SBA small business size standard 
applicable to these services. The SBA small business size standard for 
this industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus, under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    261. According to Commission data as December 2021, there were

[[Page 76091]]

approximately 4,472 active AWS licenses. The Commission's small 
business size standards with respect to AWS involve eligibility for 
bidding credits and installment payments in the auction of licenses for 
these services. For the auction of AWS licenses, the Commission defined 
a ``small business'' as an entity with average annual gross revenues 
for the preceding three years not exceeding $40 million, and a ``very 
small business'' as an entity with average annual gross revenues for 
the preceding three years not exceeding $15 million. Pursuant to these 
definitions, 57 winning bidders claiming status as small or very small 
businesses won 215 of 1,087 licenses. In the most recent auction of AWS 
licenses 15 of 37 bidders qualifying for status as small or very small 
businesses won licenses.
    262. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    263. 3650-3700 MHz band. Wireless broadband service licensing in 
the 3650-3700 MHz band provides for nationwide, non-exclusive licensing 
of terrestrial operations, utilizing contention-based technologies, in 
the 3650 MHz band (i.e., 3650-3700 MHz). Licensees are permitted to 
provide services on a non-common carrier and/or on a common carrier 
basis. Wireless broadband services in the 3650-3700 MHz band fall in 
the Wireless Telecommunications Carriers (except Satellite) industry 
with an SBA small business size standard that classifies a business as 
small if it has 1,500 or fewer employees. U.S. Census Bureau data for 
2017 show that there were 2,893 firms that operated in this industry 
for the entire year. Of this number, 2,837 firms employed fewer than 
250 employees. Thus under the SBA size standard, the Commission 
estimates that a majority of licensees in this industry can be 
considered small.
    264. The Commission has not developed a small business size 
standard applicable to 3650-3700 MHz band licensees. Based on the 
licenses that have been granted, however, we estimate that the majority 
of licensees in this service are small internet access service 
providers. As of November 2021, Commission data shows that there were 
902 active licenses in the 3650-3700 MHz band. However, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    265. Fixed Microwave Services. Fixed microwave services include 
common carrier, private-operational fixed, and broadcast auxiliary 
radio services. They also include the Upper Microwave Flexible Use 
Service (UMFUS), Millimeter Wave Service (70/80/90 GHz), Local 
Multipoint Distribution Service (LMDS), the Digital Electronic Message 
Service (DEMS), 24 GHz Service, Multiple Address Systems (MAS), and 
Multichannel Video Distribution and Data Service (MVDDS), where in some 
bands licensees can choose between common carrier and non-common 
carrier status. Wireless Telecommunications Carriers (except Satellite) 
is the closest industry with an SBA small business size standard 
applicable to these services. The SBA small size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus under the 
SBA size standard, the Commission estimates that a majority of fixed 
microwave service licensees can be considered small.
    266. The Commission's small business size standards with respect to 
fixed microwave services involve eligibility for bidding credits and 
installment payments in the auction of licenses for the various 
frequency bands included in fixed microwave services. When bidding 
credits are adopted for the auction of licenses in fixed microwave 
services frequency bands, such credits may be available to several 
types of small businesses based on average gross revenues (small, very 
small, and entrepreneur) pursuant to the competitive bidding rules 
adopted in conjunction with the requirements for the auction and/or as 
identified in Part 101 of the Commission's rules for the specific fixed 
microwave services frequency bands.
    267. In frequency bands where licenses were subject to auction, the 
Commission notes that as a general matter, the number of winning 
bidders that qualify as small businesses at the close of an auction 
does not necessarily represent the number of small businesses currently 
in service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
    268. Broadband Radio Service and Educational Broadband Service. 
Broadband Radio Service systems, previously referred to as Multipoint 
Distribution Service (MDS) and Multichannel Multipoint Distribution 
Service (MMDS) systems, and ``wireless cable,'' transmit video 
programming to subscribers and provide two-way high speed data 
operations using the microwave frequencies of the Broadband Radio 
Service (BRS) and Educational Broadband Service (EBS) (previously 
referred to as the Instructional Television Fixed Service (ITFS)). 
Wireless cable operators that use spectrum in the BRS often 
supplemented with leased channels from the EBS, provide a competitive 
alternative to wired cable and other multichannel video programming 
distributors. Wireless cable programming to subscribers resembles cable 
television, but instead of coaxial cable, wireless cable uses microwave 
channels.
    269. In light of the use of wireless frequencies by BRS and EBS 
services, the closest industry with an SBA small business size standard 
applicable to these services is Wireless Telecommunications Carriers 
(except Satellite). The SBA small business size standard for this 
industry classifies a business as small if it has 1,500 or fewer 
employees. U.S. Census Bureau data for 2017 show that there were 2,893 
firms that operated in this industry for the entire year. Of this 
number, 2,837 firms employed fewer than 250 employees. Thus under the 
SBA size standard, the Commission estimates that a majority of 
licensees in this industry can be considered small.
    270. According to Commission data as December 2021, there were 
approximately 5,869 active BRS and EBS licenses. The Commission's small 
business size standards with respect to BRS involves eligibility for 
bidding credits and installment payments in the

[[Page 76092]]

auction of licenses for these services. For the auction of BRS 
licenses, the Commission adopted criteria for three groups of small 
businesses. A very small business is an entity that, together with its 
affiliates and controlling interests, has average annual gross revenues 
that exceed $3 million and did not exceed $15 million for the preceding 
three years, a small business is an entity that, together with its 
affiliates and controlling interests, has average gross revenues that 
exceed $15 million and did not exceed $40 million for the preceding 
three years, and an entrepreneur is an entity that, together with its 
affiliates and controlling interests, has average gross revenues not 
exceeding $3 million for the preceding three years. Of the ten winning 
bidders for BRS licenses, two bidders claiming the small business 
status won four licenses, one bidder claiming the very small business 
status won three licenses, and two bidders claiming entrepreneur status 
won six licenses. One of the winning bidders claiming a small business 
status classification in the BRS license auction has an active license 
as of December 2021.
    271. The Commission's small business size standards for EBS define 
a small business as an entity that, together with its affiliates, its 
controlling interests, and the affiliates of its controlling interests, 
has average gross revenues that are not more than $55 million for the 
preceding five (5) years, and a very small business is an entity that, 
together with its affiliates, its controlling interests, and the 
affiliates of its controlling interests, has average gross revenues 
that are not more than $20 million for the preceding five (5) years. In 
frequency bands where licenses were subject to auction, the Commission 
notes that as a general matter, the number of winning bidders that 
qualify as small businesses at the close of an auction does not 
necessarily represent the number of small businesses currently in 
service. Further, the Commission does not generally track subsequent 
business size unless, in the context of assignments or transfers, 
unjust enrichment issues are implicated. Additionally, since the 
Commission does not collect data on the number of employees for 
licensees providing these services, at this time we are not able to 
estimate the number of licensees with active licenses that would 
qualify as small under the SBA's small business size standard.
5. Satellite Service Providers
    272. Satellite Telecommunications. This industry comprises firms 
``primarily engaged in providing telecommunications services to other 
establishments in the telecommunications and broadcasting industries by 
forwarding and receiving communications signals via a system of 
satellites or reselling satellite telecommunications.'' Satellite 
telecommunications service providers include satellite and earth 
station operators. The SBA small business size standard for this 
industry classifies a business with $38.5 million or less in annual 
receipts as small. U.S. Census Bureau data for 2017 show that 275 firms 
in this industry operated for the entire year. Of this number, 242 
firms had revenue of less than $25 million. Additionally, based on 
Commission data in the 2022 Universal Service Monitoring Report, as of 
December 31, 2021, there were 65 providers that reported they were 
engaged in the provision of satellite telecommunications services. Of 
these providers, the Commission estimates that approximately 42 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, a little more than half of these 
providers can be considered small entities.
    273. All Other Telecommunications. This industry is comprised of 
establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. Providers of 
internet services (e.g. dial-up ISPs) or VoIP services, via client-
supplied telecommunications connections are also included in this 
industry. The SBA small business size standard for this industry 
classifies firms with annual receipts of $35 million or less as small. 
U.S. Census Bureau data for 2017 show that there were 1,079 firms in 
this industry that operated for the entire year. Of those firms, 1,039 
had revenue of less than $25 million. Based on this data, the 
Commission estimates that the majority of ``All Other 
Telecommunications'' firms can be considered small.
6. Cable Service Providers
    274. Cable and Other Subscription Programming. The U.S. Census 
Bureau defines this industry as establishments primarily engaged in 
operating studios and facilities for the broadcasting of programs on a 
subscription or fee basis. The broadcast programming is typically 
narrowcast in nature (e.g., limited format, such as news, sports, 
education, or youth-oriented). These establishments produce programming 
in their own facilities or acquire programming from external sources. 
The programming material is usually delivered to a third party, such as 
cable systems or direct-to-home satellite systems, for transmission to 
viewers. The SBA small business size standard for this industry 
classifies firms with annual receipts less than $41.5 million as small. 
Based on U.S. Census Bureau data for 2017, 378 firms operated in this 
industry during that year. Of that number, 149 firms operated with 
revenue of less than $25 million a year and 44 firms operated with 
revenue of $25 million or more. Based on this data, the Commission 
estimates that a majority of firms in this industry are small.
    275. Cable Companies and Systems (Rate Regulation). The Commission 
has developed its own small business size standard for the purpose of 
cable rate regulation. Under the Commission's rules, a ``small cable 
company'' is one serving 400,000 or fewer subscribers nationwide. Based 
on industry data, there are about 420 cable companies in the U.S. Of 
these, only seven have more than 400,000 subscribers. In addition, 
under the Commission's rules, a ``small system'' is a cable system 
serving 15,000 or fewer subscribers. Based on industry data, there are 
about 4,139 cable systems (headends) in the U.S. Of these, about 639 
have more than 15,000 subscribers. Accordingly, the Commission 
estimates that the majority of cable companies and cable systems are 
small.
    276. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, contains a size standard for a 
``small cable operator,'' which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than one percent of 
all subscribers in the United States and is not affiliated with any 
entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' For purposes of the Telecom Act Standard, the 
Commission determined that a cable system operator that serves fewer 
than 677,000 subscribers, either directly or through affiliates, will 
meet the definition of a small cable operator based on the cable 
subscriber count established in a 2001 Public Notice. Based on industry 
data, only six cable system operators have more than 677,000 
subscribers. Accordingly, the Commission estimates that the majority of 
cable system

[[Page 76093]]

operators are small under this size standard. We note however, that the 
Commission neither requests nor collects information on whether cable 
system operators are affiliated with entities whose gross annual 
revenues exceed $250 million. Therefore, we are unable at this time to 
estimate with greater precision the number of cable system operators 
that would qualify as small cable operators under the definition in the 
Communications Act.
7. Other
    277. Electric Power Generators, Transmitters, and Distributors. The 
U.S. Census Bureau defines the utilities sector industry as comprised 
of ``establishments, primarily engaged in generating, transmitting, 
and/or distributing electric power. Establishments in this industry 
group may perform one or more of the following activities: (1) operate 
generation facilities that produce electric energy; (2) operate 
transmission systems that convey the electricity from the generation 
facility to the distribution system; and (3) operate distribution 
systems that convey electric power received from the generation 
facility or the transmission system to the final consumer.'' This 
industry group is categorized based on fuel source and includes 
Hydroelectric Power Generation, Fossil Fuel Electric Power Generation, 
Nuclear Electric Power Generation, Solar Electric Power Generation, 
Wind Electric Power Generation, Geothermal Electric Power Generation, 
Biomass Electric Power Generation, Other Electric Power Generation, 
Electric Bulk Power Transmission and Control, and Electric Power 
Distribution.
    278. The SBA has established a small business size standard for 
each of these groups based on the number of employees which ranges from 
having fewer than 250 employees to having fewer than 1,000 employees. 
U.S. Census Bureau data for 2017 indicate that for the Electric Power 
Generation, Transmission and Distribution industry there were 1,693 
firms that operated in this industry for the entire year. Of this 
number, 1,552 firms had less than 250 employees. Based on this data and 
the associated SBA size standards, the majority of firms in this 
industry can be considered small entities.
    279. All Other Information Services. This industry comprises 
establishments primarily engaged in providing other information 
services (except news syndicates, libraries, archives, internet 
publishing and broadcasting, and Web search portals). The SBA small 
business size standard for this industry classifies firms with annual 
receipts of $30 million or less as small. U.S. Census Bureau data for 
2017 show that there were 704 firms in this industry that operated for 
the entire year. Of those firms, 556 had revenue of less than $25 
million. Consequently, we estimate that the majority of firms in this 
industry are small entities.
    280. internet Service Providers (Non-Broadband). internet access 
service providers using client-supplied telecommunications connections 
(e.g., dial-up ISPs) as well as VoIP service providers using client-
supplied telecommunications connections fall in the industry 
classification of All Other Telecommunications. The SBA small business 
size standard for this industry classifies firms with annual receipts 
of $35 million or less as small. For this industry, U.S. Census Bureau 
data for 2017 show that there were 1,079 firms in this industry that 
operated for the entire year. Of those firms, 1,039 had revenue of less 
than $25 million. Consequently, under the SBA size standard a majority 
of firms in this industry can be considered small.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    281. In the Notice, we largely seek to reestablish the framework 
the Commission previously adopted in the 2015 Open Internet Order. We 
first propose to reclassify BIAS as a telecommunications service under 
Title II of the Act and to reclassify mobile BIAS as a commercial 
mobile service. We also propose to reestablish rules to prevent ISPs 
from engaging in practices harmful to consumers, competition, and 
public safety and that provide the foundation for a national regulatory 
approach toward BIAS. Specifically, we propose to adopt rules to 
prohibit ISPs from blocking, throttling, or engaging in paid or 
affiliated prioritization arrangements. We further propose to reinstate 
the general conduct standard adopted in the 2015 Open Internet Order, 
which would prohibit practices that cause unreasonable interference or 
unreasonable disadvantage to consumers or edge providers. Additionally, 
we propose to retain current disclosure obligations for ISPs, and seek 
comment on the means of disclosure, the interplay between the 
transparency rule and current broadband label requirements, as well as 
any additional enhancements or changes the Commission should consider. 
While we expect the proposals in the Notice will impose new or 
additional reporting, recordkeeping and/or other compliance obligations 
on small and other entities, we also anticipate that the burden for 
small and other entities to comply with the reclassification and rules 
will be minimal, as they will be entering a regulatory framework with 
which they are already and recently familiar. At this time however, the 
Commission is not in a position to determine whether, if adopted, our 
proposals and the matters upon which we seek comment will require small 
entities to hire professionals to comply with the proposed rules in the 
Notice, and cannot quantify the cost of compliance with the potential 
rule changes discussed herein. We seek comment from small entities that 
have concerns about potential hardships or other matters related to our 
proposed rules, and with compliance, should they be adopted.
    282. Certain compliance obligations regarding the content of 
transparency disclosures that we discuss in the Notice and seek comment 
on are beyond those that currently exists. For instance, we seek 
comment on additional disclosure specifications that were established 
in the 2015 Open Internet Order and repealed by the RIF Order, 
including commercial terms about price and related terms and their 
relationship with disclosures regarding privacy and redress options, 
and about performance characteristics related to network performance 
and network practices. We also seek comment on whether ISPs should 
disclose additional information regarding their performance measurement 
methodologies and practices. We discuss additional disclosure 
requirements that were not adopted in the 2015 Open Internet Order, 
such as those regarding the source, location, timing, or duration of 
network congestion, packet corruption and jitter, or disclosures that 
permit end users to identify application-specific usage or to 
distinguish which user or device contributed to which part of the total 
data usage. We also ask if ISPs should be required to make more 
detailed disclosures regarding the requirements, restrictions, or 
standards for enforcement of data caps. Further, we seek comment on 
whether to incorporate into the transparency rule the Commission's 
clarifications and guidance regarding prior versions of the 
transparency rule, such as point-of-sale disclosures, service 
descriptions, disclosures for the benefit of edge providers, 
disclosures regarding security measures, and consistency between ISPs' 
disclosures under the transparency rule and their advertising claims or 
other public statements. We also discuss how providers would make the 
required

[[Page 76094]]

disclosures, such as via a publicly available website, by transmitting 
disclosures directly to the Commission, and by additional locations or 
means. Additionally, we seek comment on whether such disclosures should 
be in a machine-readable format and regarding the accessibility of such 
disclosures to individuals with disabilities. Lastly, we explore what, 
if any, recordkeeping requirements we should implement as a means for 
ISPs to provide the types of information or records needed to support 
the content of their disclosures.
    283. The Commission seeks comment on all of the above proposals to 
evaluate whether compliance with these requirements would cause an 
undue burden on small or other entities, if adopted. We therefore 
expect the information we receive in comments, including cost and 
benefit data, to help the Commission further identify and evaluate 
relevant matters for small entities, such as compliance costs, and 
other burdens that may result from the proposals and inquiries we make 
in the Notice.

E. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    284. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include (among others) the following four alternatives: (1) 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for such small 
entities; (3) the use of performance, rather than design, standards; 
and (4) an exemption from coverage of the rule, or any part thereof, 
for such small entities.
    285. At the outset of the reclassification discussion, we request 
information on the benefits and burdens of the proposed 
reclassification, and specifically request feedback on the impact on 
small businesses and small ISPs. We also request feedback on the 
proposed conduct rules prohibiting ISPs from blocking or throttling the 
information transmitted over their networks, or engaging in paid or 
affiliated prioritization arrangements, and the general conduct rule, 
all of which, as we discuss in the Notice, track the specific language 
from the 2015 Open Internet Order. We believe our proposal to 
reestablish the framework from the Commission's 2015 decision could 
minimize the economic impact for small entities that already have 
experience operating under, and complying with, the 2015 Open Internet 
Order.
    286. We also believe and tentatively conclude that the proposed 
reclassification of BIAS as a telecommunications service will enhance 
the Commission's ability to continue to advance national security and 
preserve public safety by protecting the nation's communications 
networks from potential entities, equipment, and services that pose 
threats to national security and law enforcement. However, in the 
alternative to reclassification, we consider, inquire, and seek comment 
on whether there is other authority that can be used by the Commission 
that would allow it to protect the nation's communications networks 
against ISPs that pose threats national security and law enforcement. 
To the extent there is such an alternative available to the Commission, 
in the Notice, we request that commenters specify the statutory 
authority, and how this authority can be used by the Commission to 
address national security and law enforcement concerns. We believe 
reclassification also will protect the information of small and other 
telecommunications carriers, equipment manufacturers, and other 
entities that interact with ISPs that are potential national security 
threats, or are owned or controlled by, or subject to the jurisdiction 
or direction of foreign adversaries. Accordingly, we seek comment on 
how reclassification of BIAS will affect ISPs as well as 
telecommunications carriers and equipment manufacturers, and other 
entities that interact with ISPs, if adopted.
    287. In the Notice, we indicate that as part of our proposal to 
reinstate the reclassification of BIAS as a telecommunications service, 
we will continue to define BIAS as defined in part 8 of the 
Commission's rules and ``mass market'' as defined in the 2015 Open 
Internet Order and RIF Order. We consider whether there are reasons for 
the Commission to modify these definitions. Similarly, we consider 
whether there is any reason to depart from our tentative conclusion 
that BIAS is a telecommunications service and our supporting analysis. 
Further, while we propose to reinstate the classification of mobile 
BIAS as a commercial mobile service as adopted in the 2015 Open 
Internet Order, alternatively, we propose to find that mobile BIAS is 
the functional equivalent of a commercial mobile service and, 
therefore, not private mobile service, even if mobile BIAS does not 
meet the definition of ``commercial mobile service.'' The Notice seeks 
comment on these matters.
    288. The specific conduct rules we propose in the Notice would 
prohibit ISPs from blocking, throttling, or engaging in paid or 
affiliated prioritization arrangements. In the alternative, we consider 
whether the need to prohibit any of these practices has been eliminated 
by any new technical advancements or market developments. We also 
consider whether our proposed no-blocking rule which tracks the 
language of the rule we adopted 2015 Open Internet Order, and would 
apply to both fixed and mobile ISPs, continues to be the best no-
blocking principle for ISPs. The no-blocking rule is a broadly accepted 
principle in the industry, including by ISPs, and many ISPs continue to 
advertise a commitment to open internet principles on their websites, 
which includes commitments not to block traffic except in certain 
circumstances, notwithstanding the 2017 repeal of the no-blocking rule. 
Similarly, after the repeal of the no-throttling rule, ISPs continue to 
advertise on their websites that they do not throttle traffic except in 
limited circumstances. As a result, we believe the economic impact on, 
and costs to comply with the proposed no-blocking rule, and the no 
throttling of lawful internet traffic rule, will be minimal for small 
ISPs. We however seek information on specific costs and burdens these 
rules would impose for small ISPs.
    289. Regarding our proposed ban on paid prioritization practices, 
we take steps to minimize the economic impact for small ISPs by 
requesting information on the compliance costs small ISPs would incur 
as a result of such a ban, and by exploring whether there are 
alternatives we can take to protect consumers, and the open internet 
from the harms of paid prioritization practices that should be 
considered as an alternative to a flat ban. Similarly, we consider 
whether there is another standard we should adopt to establish a 
general conduct rule, as an alternative to the general conduct standard 
for ISPs we propose in the Notice that tracks the 2015 Open Internet 
Order. We specifically inquire whether we should instead rely on the 
``just and reasonable'' and ``unreasonable discrimination'' standards 
in sections 201 and 202 of the Act. The Notice seeks comment on these 
matters.
    290. We further propose to build upon the foundation of our 
existing transparency requirement adopted in the 2010 Open Internet 
Order, and the new broadband label requirements the Commission put in 
place to give

[[Page 76095]]

consumers a convenient tool to research and compare broadband 
offerings. We propose possible modifications or additions to the 
requirements pertaining to the content of required disclosure and the 
means of disclosure to update the transparency rule, to ensure that 
sufficient information is made available to end users, edge providers, 
the broader internet community, and the Commission, which allows for 
the timely and effective assessment of ISPs' terms and conditions for 
BIAS. Specific disclosure modification alternatives we consider, and 
seek comment on include whether to: (1) require disclosures regarding 
the source, location, timing, or duration of network congestion, packet 
corruption and jitter, or disclosures that permit end users to identify 
application-specific usage or to distinguish which user or device 
contributed to which part of the total data usage, (2) require more 
detailed disclosures regarding the requirements, restrictions, or 
standards for enforcement of data caps; (3) require specific content of 
particular relevance to edge providers, the broader internet community, 
or the Commission, and (4) require different disclosures tailored to 
different audiences, and specifically, whether different content 
disclosures should be required for mobile ISPs than for fixed ISPs. 
Further, as an alternative to modifications that only add disclosure 
requirements, we inquire, and seek comment on whether under the current 
transparency rule there is certain content that is required to be 
disclosed that should no longer be required after weighing the relevant 
policy considerations at stake.
    291. As we discuss in the Notice, our objectives for proposing 
modifications to the means of disclosure requirements for ISPs is to 
ensure that we are taking the appropriate steps to facilitate the 
availability of the content of the required disclosures in a timely and 
effective manner, without undue burdens on ISPs. Thus, while we 
consider and seek comment on alternatives to modify the means of 
disclosure requirements for ISPs such as, (1) whether any additional 
requirements are warranted regarding ISPs' website disclosures under 
the transparency rule, (2) whether disclosures under the transparency 
rule should be required in additional locations, and (3) possible 
direct notification requirements, we also consider whether there are 
existing means of disclosure requirements that should be eliminated 
because the burdens imposed by these requirements outweigh their 
benefits. We believe that to the extent that there are content and/or 
means of disclosure requirements that can be removed, removal of these 
requirements could reduce the impact for small entities of any 
additional requirements that may be adopted.
    292. Our assessment of how to implement any rules we may adopt 
relating to the transparency rule seeks to identify any implementation 
issues for small and other ISPs that may be associated with potential 
modifications. We specifically seek to understand the impacts for small 
ISPs, such as whether smaller ISPs need extra time to implement any 
modifications to the transparency rule.
    293. More generally we consider implementation alternatives that 
include, (1) whether the Commission should adopt new safe harbors for 
compliance with the transparency rule, (2) whether there are safe 
harbors the Commission should adopt for compliance with the 
transparency rule as a whole, similar to the broadband label safe 
harbor adopted in the 2015 Open Internet Order, and (3) whether the 
Commission should adopt recordkeeping requirements governing the types 
of information or records ISPs rely upon to support the content of 
their disclosures made under the transparency rule. With regard to any 
recordkeeping requirements, we seek information on specific ways 
information could be retained that could minimize the burden on small 
and other ISPs, and what recordkeeping timeframe would best balance the 
benefits to the Commission of having the required information available 
against the compliance burden for small and other ISPs. Overall, the 
Commission's objective is to determine the most cost-effective ways of 
ensuring that consumers, and edge providers receive the information 
they need in a timely and effective manner, while minimizing the 
implementation and compliance burdens for small and other ISPs, 
consistent with these goals.
    294. In the Notice and summarized above, we discuss the potential 
effects our rule proposals and alternatives could have on small 
entities, and seek comment on these matters. We also discuss that the 
Commission envisions the proposed BIAS reclassification as a means to 
provide the basis for a national regulatory approach rather than a 
patchwork of state requirements, which could help streamline and 
minimize regulatory requirements for small entities. Further, we 
propose broad forbearance from statutory requirements and Commission 
regulations for ISPs, and note that the proposed forbearance could 
substantially lessen the economic impact of the proposed actions on 
small entities. Accordingly, before reaching final conclusions, and 
taking action in this proceeding, the Commission expects to further 
consider the economic impact on small entities, and additional 
alternatives that are consistent with its goal of safeguarding and 
securing the open internet, while also imposing minimal burdens on 
small entities, based on comments filed in response to the Notice and 
this IRFA.

F. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    295. None.

VII. Ordering Clauses

    296. Accordingly, it is ordered, pursuant to the authority 
contained in sections 1, 2, 3, 4(i)-(j), 10, 13, 201, 202, 208, 218, 
230, 251, 254, 256, 257, 301, 303, 304, 307, 309, 316, 332, 403, 501, 
503, 522, 536, and 548 of the Communications Act of 1934, as amended, 
and section 706 of the Telecommunications Act of 1996, as amended, 47 
U.S.C. 151, 152, 153, 154(i)-(j), 160, 163, 201, 202, 208, 218, 230, 
251, 254, 256, 257, 301, 303, 304, 307, 309, 316, 332, 403, 501, 503, 
522, 536, 548, and 1302, that this Notice of Proposed Rulemaking is 
adopted.
    297. It is further ordered that, pursuant to applicable procedures 
set forth in Sec. Sec.  1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415 and 1.419, interested parties may file comments on the Notice 
of Proposed Rulemaking on or before December 14, 2023, and reply 
comments on or before January 17, 2024.
    298. It is further ordered that the Office of the Secretary, 
Reference Information Center shall send a copy of this Notice of 
Proposed Rulemaking, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Parts 8 and 20

    Communications, Common carriers, Reporting and recordkeeping 
requirements, Telecommunications, Telephone.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR parts 8 and 20 as 
follows:

[[Page 76096]]

PART 8--[AMENDED]

0
1. The authority citation for part 8 is revised to read as follows:

    Authority:  47 U.S.C. 151, 152, 153, 154, 160, 163, 201, 202, 
208, 218, 230, 251, 254, 256, 257, 301, 303, 304, 307, 309, 316, 
332, 403, 501, 503, 522, 536, 548, 1302, 1753.
0
2. Amend part 8 by revising the part heading to read as follows:

PART 8--SAFEGUARDING AND SECURING THE OPEN INTERNET

0
3. Add Sec.  8.2 to read as follows:


Sec.  8.2  Conduct-based rules.

    (a) Definitions. For purposes of this section:
    (1) Broadband internet access service means a mass-market retail 
service by wire or radio that provides the capability to transmit data 
to and receive data from all or substantially all internet endpoints, 
including any capabilities that are incidental to and enable the 
operation of the communications service, but excluding dial-up internet 
access service. This term also encompasses any service that the 
Commission finds to be providing a functional equivalent of the service 
described in the previous sentence or that is used to evade the 
protections set forth in this part.
    (2) Edge provider means any individual or entity that provides any 
content, application, or service over the internet, and any individual 
or entity that provides a device used for accessing any content, 
application, or service over the internet.
    (3) End user means any individual or entity that uses a broadband 
internet access service.
    (4) Reasonable network management means a network management 
practice that has a primarily technical network management 
justification, but does not include other business practices. A network 
management practice is reasonable if it is primarily used for and 
tailored to achieving a legitimate network management purpose, taking 
into account the particular network architecture and technology of the 
broadband internet access service.
    (b) No blocking. A person engaged in the provision of broadband 
internet access service, insofar as such person is so engaged, shall 
not block lawful content, applications, services, or non-harmful 
devices, subject to reasonable network management.
    (c) No throttling. A person engaged in the provision of broadband 
internet access service, insofar as such person is so engaged, shall 
not impair or degrade lawful internet traffic on the basis of internet 
content, application, or service, or use of a non-harmful device, 
subject to reasonable network management.
    (d) No paid prioritization. (1) A person engaged in the provision 
of broadband internet access service, insofar as such person is so 
engaged, shall not engage in paid prioritization. ``Paid 
prioritization'' refers to the management of a broadband provider's 
network to directly or indirectly favor some traffic over other 
traffic, including through use of techniques such as traffic shaping, 
prioritization, resource reservation, or other forms of preferential 
traffic management, either:
    (i) In exchange for consideration (monetary or otherwise) from a 
third party, or
    (ii) To benefit an affiliated entity.
    (2) The Commission may waive the ban on paid prioritization only if 
the petitioner demonstrates that the practice would provide some 
significant public interest benefit and would not harm the open nature 
of the internet.
    (e) General conduct standard. (1) Any person engaged in the 
provision of broadband internet access service, insofar as such person 
is so engaged, shall not unreasonably interfere with or unreasonably 
disadvantage:
    (i) End users' ability to select, access, and use broadband 
internet access service or the lawful internet content, applications, 
services, or devices of their choice, or
    (ii) Edge providers' ability to make lawful content, applications, 
services, or devices available to end users.
    (2) Reasonable network management shall not be considered a 
violation of this rule.
    (f) Effect on other obligations or authorizations. Nothing in this 
part supersedes any obligation or authorization a provider of broadband 
internet access service may have to address the needs of emergency 
communications or law enforcement, public safety, or national security 
authorities, consistent with or as permitted by applicable law, or 
limits the provider's ability to do so. Nothing in this part prohibits 
reasonable efforts by a provider of broadband internet access service 
to address copyright infringement or other unlawful activity.

PART 20--COMMERCIAL MOBILE SERVICES

0
4. The authority citation for part 20 continues to read as follows:

    Authority: 47 U.S.C. 151, 152(a), 154(i), 155, 157, 160, 201, 
214, 222, 251(e), 301, 302, 303, 303(b), 303(r), 307, 307(a), 309, 
309(j)(3), 316, 316(a), 332, 610, 615, 615a, 615b, and 615c, unless 
otherwise noted.
0
5. In Sec.  20.3 amend paragraph (b) by revising the definitions of 
``Commercial mobile radio service'' and ``Public Switched Network'' to 
read as follows:


Sec.  20.3  Definitions.

* * * * *
    Commercial mobile radio service. A mobile service that is:
    (1)(i) Provided for profit, i.e., with the intent of receiving 
compensation or monetary gain;
    (ii) An interconnected service; and
    (iii) Available to the public, or to such classes of eligible users 
as to be effectively available to a substantial portion of the public; 
or
    (2) The functional equivalent of such a mobile service described in 
paragraph (1) of this definition, including a mobile broadband internet 
access service as defined in Sec.  8.2 of this chapter.
    (3) A variety of factors may be evaluated to make a determination 
whether the mobile service in question is the functional equivalent of 
a commercial mobile radio service, including: Consumer demand for the 
service to determine whether the service is closely substitutable for a 
commercial mobile radio service; whether changes in price for the 
service under examination, or for the comparable commercial mobile 
radio service, would prompt customers to change from one service to the 
other; and market research information identifying the targeted market 
for the service under review.
    (4) Unlicensed radio frequency devices under part 15 of this 
chapter are excluded from this definition of Commercial mobile radio 
service.
* * * * *
    Public Switched Network. The network that includes any common 
carrier switched network, whether by wire or radio, including local 
exchange carriers, interexchange carriers, and mobile service 
providers, that uses the North American Numbering Plan, or public IP 
addresses, in connection with the provision of switched services.
* * * * *

[FR Doc. 2023-23630 Filed 11-2-23; 8:45 am]
BILLING CODE 6712-01-P


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