76048 Federal Register / Vol. 88, No. 212 / Friday, November 3, 2023 / Proposed Rules 

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. 

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: 

• Electronic Filers: Comments may be 

filed electronically using the internet by 

accessing ECFS: https://www.fcc.gov/ 

ecfs/. 

• 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. 

• 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. 

• U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 45 L Street NE, 

Washington, DC 20554. 

• 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-closesheadquarters-open-window-andchanges-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 fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at (202) 418–0530 (voice). 

FOR FURTHER INFORMATION CONTACT: 

Wireline Competition Bureau, 

Competition Policy Division, 

Openinternet2023@fcc.gov. For 

additional information concerning the 

Paperwork Reduction Act information 

collection requirements contained in 

this document, send an email to PRA@

fcc.gov or contact Nicole Ongele, 

Nicole.Ongele@fcc.gov. 

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/FCC23-83A1.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 FCC504@fcc.gov 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/proposedrulemakings. 

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 


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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 

§ 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 postpandemic. 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 datarelated ‘‘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 thirdparty services and devices and that 


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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 


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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 


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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 nonTitle 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 cyberattacks 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, ecommerce, 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 


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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 IPenabled 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 


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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 


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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 


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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 broadbandcapable 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 lowincome 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-topoint) 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, 


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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 longterm, 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’’ 


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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 nonBIAS 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 


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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 


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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 thirdparty 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 massmarket 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 


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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 realworld 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-tobasic’’ 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 addresstranslation 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 


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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 cloudbased 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 


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‘‘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 § 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 § 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 


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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-bycase 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 caseby-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 


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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 regulationby-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: 

• The open internet rules and section 

706 of the 1996 Act; 

• ‘‘[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’’; 

• Section 222 of the Act, ‘‘which 

establishes core customer privacy 

protections’’; 

• 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’’; 

• Sections 225, 255, and 251(a)(2) of 

the Act and the Commission’s 

implementing rules, ‘‘which collectively 


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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’’; 

• 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 

• Requirements governing the 

wireless licensing process in section 

309(b) and (d)(1) of the Act and 

§§ 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 


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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, 


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applications, and services,’’ and enable 

‘‘a virtuous cycle of innovation.’’ We 

continue to place high importance on 

innovation, investment, and free 

expression, and we believe that conduct 

rules designed to ensure internet 

openness will better advance those 

goals, consistent with the reasoning in 

the 2015 Open Internet Order. We seek 

comment on that view. 

104. We are skeptical of the RIF 

Order’s rejection of free expression as a 

likely benefit of internet conduct rules 

designed to advance internet openness. 

The RIF Order theorized that 

competition ‘‘will protect values such as 

free expression, to the extent that 

consumers value free expression as a 

service attribute and are aware of how 

their ISPs’ actions affect free 

expression.’’ We question, however, 

whether the RIF Order was correct to 

place such confidence in the 

marketplace as sufficient to advance free 

expression on the internet. Do 

consumers and the public have 

information about how ISP actions 

affect free expression on a sufficiently 

granular and detailed basis to act on that 

information? Separately, the RIF Order 

acknowledged that ‘‘[t]he competitive 

process and antitrust would not protect 

free expression in cases where 

consumers have decided that they are 

willing to tolerate some blocking or 

throttling in order to obtain other things 

of value.’’ We doubt that consumers are 

likely to act uniformly as a single, 

undifferentiated group, particularly 

where issues like free expression are 

concerned. We thus question how well 

the RIF Order’s analysis accounts for the 

interests of consumers who place 

different values on free expression. 

More generally, we seek updated 

information and analysis about the 

anticipated effects of internet conduct 

rules on free expression. 

2. Protecting Public Safety 

105. We believe that blocking, 

throttling, paid prioritization, and other 

potential conduct have the potential to 

impair public safety communications in 

a variety of circumstances and therefore 

harm the public. As discussed above, 

one of the Commission’s fundamental 

obligations under the Act is to advance 

public safety. The Mozilla court 

highlighted this charge and recognized 

the significance of it, emphasizing that 

‘‘whenever public safety is involved, 

lives are at stake.’’ It went on to note 

that ‘‘[a]ny blocking or throttling of 

[safety officials’] internet 

communications during a public safety 

crisis could have dire, irreversible 

results.’’ Similarly, in the 2015 Open 

Internet Order, the Commission 

recognized that paid prioritization and 

peering disagreements can negatively 

affect public safety communications 

traveling over the same networks. 

Above, we detail and seek comment on 

the wide range of public safety 

communications and applications that 

rely on broadband networks and on the 

related national security concerns 

implicating broadband service 

providers. We now seek comment on 

our belief that maintaining the RIF 

Order’s ex post enforcement framework 

will provide insufficient protection 

against conduct harms, which includes 

harms to public safety or national 

security. We note that the Mozilla court 

expressed specific skepticism about the 

Commission’s contention in the RIF 

Order that post-activity enforcement is a 

suitable method to address harmful 

conduct in the public safety context, 

emphasizing that ‘‘even if 

discriminatory practices might later be 

addressed on a post-hoc basis by entities 

like the Federal Trade Commission, the 

harm to the public cannot be undone.’’ 

We believe that the conduct rules we 

propose are necessary to prevent and 

mitigate harms to those public safety 

uses that would result from blocking, 

throttling, and other conduct, and we 

seek comment on our tentative 

conclusion. Our proposed conduct rules 

may also support consumer use of 

telehealth service and remote healthcare 

monitoring, such as through connected 

devices, by ensuring consumers can 

continue to access these services 

without the threat of blocking, 

throttling, or other degradation. We seek 

comment on consumer experiences 

where they have been harmed. 

106. We further believe our proposed 

conduct rules would have particular 

benefits for the safety of individuals 

with disabilities. Above, we highlighted 

that these individuals increasingly rely 

on internet-based communications, and 

that ‘‘[t]hese applications often require 

significant bandwidth, making their use 

particularly sensitive to data caps and 

network management practices.’’ We 

believe the use of broadband to facilitate 

internet-based communications by 

persons with disabilities for public 

safety purposes, such as to contact 

emergency service providers, has a 

higher likelihood of being degraded by 

prioritization of latency-sensitive 

applications on the same facilities than 

less data-intensive uses, such as email, 

software updates, or cached video. We 

accordingly believe that our proposed 

rules would prevent such degradation 

and seek comment on this proposed 

analysis. 

107. We seek comment on any other 

public safety harms or unaddressed 

concerns that the proposed rules would 

help to alleviate. For example, would 

the proposed rules help to improve 

public safety officials’ ability to 

communicate via alerting systems to 

help improve emergency preparedness? 

Would they help to provide additional 

necessary bandwidth for IP-based 

communications to Public Safety 

Answering Points via 9–1–1? Would 

such rules help the authorities 

responding to such calls to have better 

or more complete information about an 

emergency to ensure a more 

comprehensive or timely response? 

Would such rules help public safety and 

law enforcement authorities to better 

communicate with one another during 

their responses to emergencies? What 

public safety issues have arisen since 

the Commission’s prior 2015 and 2018 

orders that the proposed rules would 

help to address? 

3. ISPs’ Incentive and Ability To Harm 

Internet Openness 

108. In both the 2010 Open Internet 

Order and 2015 Open Internet Order, 

the Commission concluded that open 

internet rules were needed because ISPs 

have the incentive and ability to engage 

in practices that pose a threat to internet 

openness. In particular, the Commission 

found that because ISP networks serve 

as platforms for internet ecosystem 

participants to communicate, ISPs ‘‘are 

in a position to act as a ‘gatekeeper’ 

between end users’ access to edge 

providers’ applications, services, and 

devices and reciprocally for edge 

providers’ access to end users.’’ The 

2015 Open Internet Order highlighted 

several economic incentives ISPs have 

to exploit this gatekeeper role, ‘‘such as 

preferring their own or affiliated 

content, demanding fees from edge 

providers, or placing technical barriers 

to reaching end users.’’ This behavior, 

the Commission found, ‘‘has the 

potential to cause a variety of other 

negative externalities that hurt the open 

nature of the internet,’’ which ISPs do 

not internalize. The Commission also 

concluded that ISPs ‘‘have the technical 

ability to act on incentives to harm the 

open internet.’’ 

109. The RIF Order offered several 

reasons for rejecting the prior rationales, 

including ISPs’ economic incentives 

and supposed material competitive 

restraints. We believe these conclusions 

presumed that there were other ISPs to 

which consumers can switch if they 

were suffering open internet harms, and 

that the switching costs would not deter 

such switching. In addition, we 

tentatively agree with the Mozilla court, 

which found that, ‘‘[t]aken together, the 

Commission fail[ed] to provide a fully 


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satisfying analysis of the competitive 

constraints faced by broadband 

providers.’’ The Commission also 

claimed that ‘‘from the perspective of 

many edge providers, end users do not 

single home, but subscribe to more than 

one platform (e.g., one fixed and one 

mobile) capable of granting the end user 

effective access to the edge provider’s 

content (i.e., they multi-home),’’ and ‘‘to 

the extent multihoming occurs in the 

use of an application, there is no 

terminating monopoly.’’ However, 

consumers may lack access to both fixed 

and mobile connections, and even when 

they do have access to both, the 

Commission did not show that these 

connections allow consumers to access 

all edge provider services unhindered, 

and therefore are truly competitive 

alternatives. Indeed, the Commission 

has since concluded that ‘‘fixed 

broadband and mobile wireless 

broadband are not substitutes in all 

cases,’’ finding that each type of service 

‘‘enables different situational uses.’’ We 

seek comment on this analysis. 

110. The RIF Order also found the 

Commission’s action in the 2015 Open 

Internet Order was unjustified because 

it lacked evidence of harms to internet 

openness. Setting aside the several 

examples of harmful conduct discussed 

in the 2015 Open Internet Order and 

detailed in the record for the RIF Order, 

we believe the RIF Order’s conclusion 

gave inadequate consideration to the 

effects of the Commission’s consistent 

efforts to apply and enforce the open 

internet standards since early 2005, 

which we believe deterred harmful ISP 

conduct. Thus, to the extent there is 

limited evidence of harmful conduct 

prior to the 2015 Open Internet Order, 

we believe that demonstrates the 

Commission’s consistent efforts to apply 

and enforce open internet standards 

since 2005 were effective and are 

needed, not that the 2015 Open Internet 

Order and the protections it adopted 

were unjustified. We seek comment on 

this analysis. 

111. We tentatively conclude that 

ISPs continue to have the incentive and 

ability to engage in practices that pose 

a threat to internet openness, and seek 

comment on this tentative conclusion 

and the above analysis. We also seek to 

update the record underlying the 

conclusions in the 2010 Open Internet 

Order and 2015 Open Internet Order. 

How have changes in the marketplace or 

technology since 2015 affected ISPs’, 

including smaller ISPs, incentives and 

ability to engage in such practices? To 

what extent do ISPs have economic 

incentives and mechanisms to block or 

disadvantage a particular edge provider 

or class of edge providers? To what 

extent do vertically integrated providers 

have particularized incentives to 

discriminate—on price, quality, or other 

bases—in favor of affiliated products? 

For instance, we believe that many 

major ISPs are affiliated with OTT 

services or continue to offer competitive 

vertically integrated OTT services, and 

frequently provide consumers with 

promotional offers that bundle OTT 

services with BIAS. Do these affiliate 

relationships and vertically integrated 

offerings create additional incentive for 

ISPs to favor those services over others? 

To what extent should the Commission 

evaluate the ability and incentives of 

other intermediaries involved in the 

exchange of internet traffic, such as 

middle mile and backbone providers, to 

engage in conduct harmful to internet 

openness, particularly with respect to 

their relationships with ISPs? We seek 

comment on this analysis. 

112. We also seek comment on 

whether ISPs are incentivized to 

increase revenues by charging edge 

providers for access or prioritized access 

to the ISPs’ end users. Are there 

justifications for charging fees to edge 

providers that were not present in 2015? 

We seek comment on these and other 

economic incentives and abilities that 

ISPs may have to limit openness. 

113. We seek comment on the state of 

competition in the BIAS market. We 

note that the Commission’s 2022 

Communications Marketplace Report 

found that, as of 2021, approximately 36 

percent of households lack a 

competitive option for fixed broadband 

at speeds of 100/20 Mbps and that 70 

percent of households in rural areas lack 

such an option. Preliminary FCC staff 

calculations using December 2022 

Broadband Deployment Collection data 

yield similar results. While competition 

in the mobile BIAS market is somewhat 

more significant, fixed and mobile 

services have not proven to be 

substitutable. To what extent does the 

state of competition affect ISPs’ 

incentives to limit openness? Are there 

different incentives for small ISPs? 

Similarly, to what extent does the state 

of competition affect ISPs’ incentives to 

innovate and invest in their networks? 

We seek insight into whether consumers 

in all areas of the country have adequate 

choices in the fixed and mobile 

broadband service market. Also, to what 

extent do broadband services with 

substantially different technical 

characteristics serve as competitive 

substitutes? How, if at all, do 

commercial practices differ in places 

where consumers have only one or two 

choices, particularly when those choices 

use different technologies? Although the 

Commission previously found that its 

authority is not predicated on a finding 

of market power, and this finding has 

twice been upheld, is there a reason we 

should engage in a market power 

analysis now with respect to ISPs and, 

if so, how? We further seek comment on 

whether there are other economic 

theories that we should consider to 

better understand and assess ISP 

incentives to engage in practices that 

affect the internet’s openness. We also 

seek comment on the extent to which 

the state of competition in the BIAS 

market should play a role in our 

decision as to whether or not to 

reclassify BIAS as a Title II service. 

114. We further seek information on 

ISP conduct since the RIF Order was 

adopted. Are there examples of conduct 

that has harmed internet openness? We 

note that one 2019 study suggested that 

ISPs regularly throttle video content. 

Aside from specific examples of harm, 

could other factors have deterred ISPs 

from engaging in any behavior that 

might have violated open internet 

principles? For instance, while the RIF 

Order was published in the Federal 

Register in February of 2018, it was not 

until the Mozilla case concluded in 

October of 2019 that it was clear open 

internet rules would no longer be in 

effect. To what degree might long-term 

contracts, and the general difficulty of 

implementing new business models, 

also have played a role in making it 

difficult for ISPs to exploit 

opportunities the RIF Order created? 

Could the threat of regulation have led 

ISPs to make voluntary commitments to 

maintain service consistent with certain 

conduct rules established in the 2015 

Open Internet Order, as they did, and if 

so, would this threat have dimmed with 

time? Because broadband connections 

were so essential during the pandemic, 

we believe ISPs have been under 

increased scrutiny by the Commission, 

the media, and the public since March 

2020, and therefore have had a strong 

incentive to follow their voluntary 

commitments. Further, following the 

RIF Order, ISPs have been subject to 

state laws and executive orders 

addressing internet conduct. How have 

state regulations addressing ISP conduct 

affected ISP conduct nationwide? We 

also observe that unprecedented 

consumer demand for BIAS and edge 

innovation that occurred during the 

pandemic also led to unprecedented 

growth for ISPs. How did this growth 

impact providers’ incentives either to 

comply with open internet principles or 

to engage in behavior that might 

increase their revenues at the expense of 

internet openness? Are smaller ISPs’ 

incentives or ability to engage in 


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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 twosided 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 profitmaking 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 longterm 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 profitmaximizing 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 


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Commission’s failure to grapple with 

the fact that, for much of the past two 

decades, ISPs were subject to some 

degree of open Internet restrictions.’’ 

The Mozilla court explained, that 

‘‘[w]hile outside observers may 

associate ‘light touch’ with a distinct era 

in regulation and ‘open Internet’ with 

another era, the successive Commission 

majorities have consistently vowed 

fealty to both.’’ We believe the RIF 

Order failed to ensure the most basic 

protections for the open internet— 

prohibitions on blocking and 

throttling—let alone other threats to the 

open internet identified in the 2015 

Open Internet Order. We seek comment 

on this analysis. 

121. We believe that the 2015 Open 

Internet Order was consistent with 

Commission precedent by applying a 

light-touch regulatory framework to 

preserve an open internet. When the 

Verizon court struck down the 2010 

Open Internet Order, the Commission 

sought to implement a solution to 

preserve longstanding open internet 

standards that supported the 

unprecedented growth in fixed and 

mobile subscribership, edge innovation, 

and network investment that occurred 

up to that point. The Commission 

determined that classifying BIAS as a 

Title II service was not only more 

consistent with a modern assessment of 

how the definition of 

‘‘telecommunications service’’ applies 

to current BIAS offerings, but would 

also enable it to apply and enforce open 

internet rules. Thus, in establishing 

open internet rules using a light-touch 

application of Title II, we believe the 

2015 Open Internet Order ensured 

maintenance of the status quo that had 

existed for more than ten years prior to 

that Order. As such, we tentatively 

conclude that the action we propose 

today restores the status quo that had 

existed up until the Commission 

adopted the RIF Order, in which clear 

rules of the road ensure that edge 

innovation and investment flourish and 

consumers can access all lawful content 

they see fit. We seek comment on our 

proposed assessment. 

122. Transparency. The Commission’s 

transparency rule requires ISPs to 

publicly disclose the network practices, 

performance characteristics, and 

commercial terms of the BIAS they 

offer, including disclosure of any 

blocking, throttling, and affiliated or 

paid prioritization practices. We 

recognize that transparency is a valuable 

tool to protect the open internet, but 

that it is only one element of a 

comprehensive framework that prevents 

consumers from experiencing harms 

that inhibit their access to an open 

internet. While the transparency 

requirements currently in place provide 

consumers and edge providers the 

ability to make informed decisions, we 

believe their effectiveness is limited 

because they do not restrict ISPs from 

engaging in activities that have long 

enjoyed bipartisan opposition— 

blocking, throttling, and 

discrimination—let alone other conduct 

that has the potential to cause harm, 

such as paid prioritization. Indeed, the 

RIF Order only requires that companies 

disclose their blocking, throttling, and 

paid or affiliated prioritization in their 

transparency disclosures; it does not 

prohibit companies from engaging in 

these practices. We tentatively conclude 

that these are the types of conduct that 

require ex ante intervention to ensure 

they do not happen in the first instance, 

and therefore tentatively conclude that 

the comprehensive set of conduct rules 

that we propose today are needed to 

protect consumers from this conduct. 

We seek comment on this tentative 

conclusion. 

123. Consumer Protection and 

Antitrust Law. We seek comment on 

whether, in practice, consumer 

protection and antitrust laws provide 

sufficient protections against blocking, 

throttling, paid prioritization, and other 

conduct that harms the open internet, as 

the RIF Order asserted. The Mozilla 

court explained that the RIF Order 

‘‘theorized why antitrust and consumer 

protection law is preferred to ex ante 

regulations but failed to provide any 

meaningful analysis of whether these 

laws would, in practice, prevent 

blocking and throttling.’’ The RIF Order 

also seems to concede that blocking, 

throttling, and discrimination may be 

permitted under its chosen oversight 

and enforcement framework, and that 

paid prioritization may be found to be 

permissible in many instances. 

124. We seek comment on the 

application of consumer protection laws 

by the FTC. Notably, a 2021 Supreme 

Court ruling restricted the FTC’s ability 

to seek monetary relief on behalf of 

consumers, thereby reducing the 

deterrent effect of the FTC’s actions. 

Congress has also created other 

exceptions to the FTC’s consumer 

protection authority and assigned 

consumer protection responsibilities to 

other agencies that have expertise in 

both consumer protection and the 

relevant industry. Finally, we also 

observe that while the FTC has 

generally proceeded through ex post 

enforcement actions and public 

guidance, reclassification would allow 

the Commission to proceed by 

establishing ex ante, commonly 

applicable rules. We seek comment on 

the benefits and burdens of such an 

approach. 

125. We also seek comment on 

whether the FTC’s and Department of 

Justice’s (DOJ) antitrust enforcement 

authority is limited in its ability to 

protect against open internet harms. The 

RIF Order claims that antitrust would be 

effective because harmful conduct 

would be evaluated under the ‘‘rule of 

reason,’’ which it claims amounts to a 

‘‘consumer welfare test.’’ However, the 

‘‘rule of reason’’ analysis includes a 

subjective determination about whether 

alleged economic benefits outweigh 

recognized consumer harms. Because 

the analysis focuses on economic 

factors, does it provide sufficient weight 

to important non-economic factors, 

which courts have recognized are 

appropriate to consider under the public 

interest standard of the Act? Even if 

strict application of antitrust law does 

not reveal a violation of section 1 or 

section 2 of the Sherman Act, could 

there still be market distortions and 

power asymmetries, both between ISPs 

and other market players and between 

ISPs and consumers, that require ex 

ante intervention in the public interest, 

at least in instances where the 

Commission may find that conduct is 

unjust, unreasonable, or unreasonably 

discriminatory? For example, would 

regulatory intervention be necessary in 

instances when there is a high 

likelihood of harm to consumers and the 

likelihood or availability of effective 

remedies for consumers is speculative? 

126. Consumer Relief. Even if the RIF 

Order’s oversight and enforcement 

framework were to provide some 

protection, we seek comment on 

whether it gives consumers a 

meaningful opportunity to secure relief. 

The RIF Order concluded that its 

framework ‘‘ensures that consumers 

have means to take remedial action if an 

ISP engages in behavior inconsistent 

with an open Internet.’’ It appears that 

consumers’ primary means for seeking 

recourse under that framework is to 

submit complaints to the FTC with the 

goal of spurring the agency to direct its 

resources to investigate and address the 

alleged harms. With antitrust, in 

particular, it appears that to pursue 

relief, consumers must submit 

complaints that describe conduct that 

inhibits their access to the internet, 

attempt to tie that conduct to 

anticompetitive behavior that harms 

other entities, and otherwise rely on the 

FTC or other entities to bring suits 

alleging anticompetitive conduct that 

also harms the open internet. We seek 

comment on whether consumers can 

effectively use these mechanisms to 

obtain relief, and do so in a timely 


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manner, and we seek comment 

generally regarding consumers’ 

experiences obtaining relief following 

the RIF Order. 

127. Aside from the remedies offered 

by law, we seek comment on the 

adequacy of other methods the RIF 

Order offers that consumers can use to 

secure relief. First, the RIF Order 

suggests that consumers may be able to 

seek service from another ISP if they are 

experiencing harmful conduct, but as 

discussed above, it is not clear there is 

adequate local competition in many 

areas, especially rural areas, to give 

consumers a meaningful choice among 

providers, and we seek comment on this 

assessment. For instance, 36 percent of 

households lack a competitive option 

for broadband at speeds of 100/20 Mbps 

and 70 percent of households in rural 

areas lack such an option. At higher 

speeds, the level of competition 

becomes non-existent in most areas with 

approximately 96 percent of households 

lacking a competitive option for gigabit 

broadband service. Even when 

consumers have access to another 

provider not engaging in behavior that 

is inconsistent with an open Internet, to 

what extent is their choice between 

providers often negated because the 

alternatives charge significantly higher 

prices or provide lower performance 

and quality of service? Second, the RIF 

Order states that if ISPs engage in 

conduct that harms the open internet, 

public attention from consumer 

backlash would police their behavior, 

but it seems to assume that the harmful 

conduct by ISPs would be obvious or 

widespread—rather than surreptitious 

or sporadic—such that a sufficient 

number of consumers would be aware of 

the conduct and vocal in their 

objections to have the necessary force to 

influence ISP conduct. Third, even if 

ISP conduct was sufficiently egregious 

to result in a consumer backlash, how 

would that backlash police ISP 

behavior? We seek comment on the 

foregoing. 

128. Further, to the extent the RIF 

Order’s oversight and enforcement 

framework can address harmful conduct 

when it occurs, we seek comment on 

whether the framework will still result 

in fewer instances where ISPs will be 

subject to enforcement action for 

conduct that is clearly harmful to an 

open internet. If the RIF Order’s 

framework becomes the settled 

approach, will consumers suffer a 

greater amount of harmful conduct than 

would exist under the open internet 

rules we propose, and receive fewer 

remedies when that harm occurs? Even 

when remedies are achieved, will they 

provide sufficient redress to harms 

resulting from ISPs’ conduct? Does the 

RIF Order’s regulatory framework 

adequately serve the public interest, 

given how essential broadband is to full 

participation in today’s society and 

economy? 

129. Edge Provider Protections. We 

believe the RIF Order’s reliance on 

antitrust protections undermines the 

virtuous cycle by failing to protect the 

small edge services that comprise an 

important part of the internet. While 

antitrust protections would apply 

where, for example, an ISP favored its 

own edge provider, or sought to harm a 

competing edge provider, antitrust 

protections do not forbid the unjust or 

unreasonable exercise of market powers. 

But it is exactly those practices that 

could unravel the virtuous cycle. As 

part of its justification for reliance on 

antitrust law, the RIF Order expresses 

particular concern about the effect of 

regulations on small ISPs. But we 

believe that there are far more edge 

services that are small—typically many 

times smaller than the smallest ISPs— 

which the RIF Order does not 

acknowledge or evaluate. We seek 

comment on this belief and on the 

extent to which providers of these edge 

services would have any leverage in 

negotiations with ISPs of any size, let 

alone large, vertically integrated ISPs. 

Should large, or even small, ISPs begin 

seeking paid prioritization 

arrangements, for example, would this 

disproportionately harm small edge 

providers, for example, because larger 

edge providers could use their own 

countervailing power to better manage 

the situation? Would this increase entry 

barriers, harming edge provider 

competition and innovation, for 

example, by discouraging new entry 

against larger established edge 

providers? In all of these cases, what 

legal case would a harmed edge 

provider be able to bring under antitrust 

law and what would the likelihood of 

success be? The RIF Order argues that 

ISPs have incentives to support nascent 

competition as more edge provider 

competition will reduce the 

countervailing power of large, 

entrenched ISPs. We seek comment on 

whether this is accurate, and in 

particular whether any efforts or 

investments by an ISP to help nascent 

edge providers would produce diffuse 

benefits to all ISPs, and thus whether 

any single ISP would have appropriate 

incentives to help develop edge 

provider competition. 

130. Research in innovation 

economics suggests that edge innovation 

is heterogeneous. Some types of edge 

innovation will thrive under general 

purpose open networks. Such 

innovations could have significant 

positive spillover effects that benefit the 

broader internet ecosystem. However, 

other types of edge innovation, 

especially during the early phases of the 

innovation process, may be facilitated 

by quality of service differentiation of 

the network. This suggests that a 

forward-looking open internet policy 

will be most supportive of innovation if 

it protects the openness of the access 

platforms for innovations with high 

spillover effects while at the same time 

allowing non-discriminatory forms of 

network differentiation to support edge 

innovations that are facilitated by such 

support. We seek comment on this 

proposed analysis. 

131. Costs of Oversight Regime. We 

seek comment generally on the costs to 

ISPs resulting from the RIF Order’s 

chosen oversight regime. The RIF Order 

claims that its approach would lower 

compliance costs for ISPs. We reiterate, 

however, that because the RIF Order’s 

preemption directive was vacated by the 

D.C. Circuit in Mozilla, ISPs are now 

subject to a patchwork of state 

requirements for BIAS, rather than a 

national regulatory framework. We seek 

comment on the costs of this patchwork 

approach. 

132. We also seek comment on the 

costs of the RIF Order’s consumer 

protection and antitrust oversight 

framework. We observe that whether an 

act is unfair or deceptive under 

consumer protection law each depends 

on its own three-prong subjective test, 

which can result in unforeseen 

outcomes, and the antitrust rule of 

reason relies on a case-by-case 

evaluation. In light of these factors, we 

seek comment on whether the RIF 

Order’s removal of bright-line, ex ante 

rules can result in significant 

compliance cost for ISPs. Relatedly, 

what are the costs to ISPs for having to 

evaluate the risks of their planned 

conduct under this consumer protection 

and antitrust oversight framework? 

B. Conduct Rules 

133. We propose to adopt rules to 

prohibit ISPs from blocking, throttling, 

or engaging in paid or affiliated 

prioritization arrangements, and also 

seek comment on the adoption of a 

proposed general conduct standard for 

ISPs. The last several years have 

demonstrated not only broadband’s 

essential value, but also the 

consequences to consumers of its 

absence or degradation, and we 

therefore believe it important to 

establish clear, bright-line rules. We 

seek comment on the proposals and 

analyses herein. 


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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 nonharmful 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 noblocking 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 enduser 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 noblocking 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 nonharmful 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 nonharmful devices. As part of the noblocking rule that the Commission 

adopted in the 2010 Open Internet 

Order, the Commission prohibited ISPs 

from ‘‘impairing or degrading particular 

content, applications, services, or nonharmful 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 


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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 nonharmful 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 


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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, 


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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-bycase approach that would consider the 

totality of the circumstances when 

analyzing whether conduct satisfies the 

standard. Second, we propose a nonexhaustive 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, enduser 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, 


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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-tounderstand, 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-ofsale 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-ofsale 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 


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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 


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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 § 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, 


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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 reestablish 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 

§ 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 § 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 


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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 

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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 


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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 ‘‘massmarket’’ 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, thenJudge 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, 


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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-butdisclose’’ 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. 


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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 ‘‘smallbusiness 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 


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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 


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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 


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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 


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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 FDDand 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 TDDbased 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 


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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 airground 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 AirGround 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 


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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 


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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 


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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 (NonBroadband). 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 


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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 noblocking principle for ISPs. The noblocking 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 noblocking 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 


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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 applicationspecific 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 costeffective 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 §§ 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: 


lotter on DSK11XQN23PROD with PROPOSALS4
76096 Federal Register / Vol. 88, No. 212 / Friday, November 3, 2023 / Proposed Rules 

PART 8—[AMENDED] 

■ 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. 

■ 2. Amend part 8 by revising the part 

heading to read as follows: 

PART 8—SAFEGUARDING AND 

SECURING THE OPEN INTERNET 

■ 3. Add § 8.2 to read as follows: 

§ 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 nonharmful 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 

■ 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. 

■ 5. In § 20.3 amend paragraph (b) by 

revising the definitions of ‘‘Commercial 

mobile radio service’’ and ‘‘Public 

Switched Network’’ to read as follows: 

§ 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 § 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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